AN EXPERT VIEW: WHY MOST EUROPEAN COUNTRIES STILL NEED TO CHANGE THEIR RAPE LAWS

Under the law of England and Wales to establish rape the prosecution must prove that at the time of penile penetration of the vagina, anus or mouth the person did not consent to it. There is no requirement to show force was used or threatened

Amnesty International recently analysed rape legislation in countries in Europe and found that only 8 out of 31 countries have consent-based rape legislation in place. These are Sweden, the UK, Ireland, Luxembourg, Germany, Cyprus, Iceland and Belgium.

In the other European countries, for the crime to be considered rape, the law requires the use of force or threats. But this is not what happens in a great majority of rape cases.

Following the publication of a new report - “Give us respect and justice!” Overcoming barriers to justice for women rape survivors in Denmark – which reveals that women and girls in Denmark are being failed by dangerous and outdated laws a leading British lawyer and a retired judge, set out how the consent-based definition of rape works in the UK.

Rape and the fear or threat of violence: The experience of Courts in England and Wales

Under the law of England and Wales to establish rape the prosecution must prove that at the time of penile penetration of the vagina, anus or mouth the person did not consent to it. There is no requirement to show force was used or threatened. This has been so since rape ceased to be a capital offence in 1841 when the definition of rape was widened to include cases where intercourse had taken place without the woman’s consent even though there had been no force, fear or fraud.

The Sexual Offences Act 2003, section 74 defined consent for the purposes of rape and other non-consensual offences by providing that a person consents if he or she ‘‘agrees by choice, and has the freedom and capacity to make that choice.” The definition helps emphasise the autonomy of the individual when it comes to making choices about sex.

The definition followed the recommendations of the Sexual Offences Review in 2000 which emphasised that “any free agreement would necessarily be voluntary and genuine”. The Review considered that the use of “free agreement” to define consent would assist in making it clear that absence of protest, resistance or injury does not necessarily mean that the complainant consented.

It follows that judges have been directing juries on this basis for many years, and in many cases the issue of consent is the critical one for a jury to decide. The focus on consent without an essential requirement of violence or threat of violence does not reverse the burden of proof. Indeed, the prosecution must also prove that the defendant does not reasonably believe that the person consents. In practice, our experience is that where there is no evidence of violence or threat of violence, absence of consent may often be more difficult to prove.

A requirement of proof of violence or threat of violence as an element necessary for the offence of rape would exclude a large category of cases where there has been no consent. Examples of where a criminal act of rape is committed within legislation of England and Wales include where the prosecution proves beyond reasonable doubt that a vulnerable person’s will has been overborne or where it is proved that the person froze and offered no protest or physical resistance but did not consent. It would be quite wrong to exclude these cases from appropriate criminal sanction and to fail to provide victims with due protection.

HH Peter Rook QC is a retired Senior Criminal Law Judge and author of leading text book on “Sexual Offences: Law and Practice”

Kirsty Brimelow QC is a senior barrister at Doughty Street Chambers and experienced prosecutor and defender in sexual offences cases.