A brief history of British rape reform
January 12, 2010 6:51 AM Subscribe
Yesterday's post on the Craigslist rape case is eerily similar to a 1975 English House of Lords case, Director of Public Prosecutions v. Morgan which sparked a huge public outcry and has become standard reading in American 1L criminal law texts.
The Lords' decision was for the defendants, who forcibly gang-raped a woman in her home, because they held that the law permitted mistake of consent, even when unreasonable, to be a defense to the charge of rape. When this hit the press, Parliament convened a committee, chaired by renowned British jurist Rose Heilbron, which produced the Report of the Advisory Group on the Law of Rape.
The Heilbron Committee affirmed the ruling of the Lords, but recommended that changes to the law be made. An amendment was made in 1976 to correct the perceived defects.
The 1976 amendment added anonymity for plaintiffs, but defendants were still permitted to use unreasonable belief that the victim consented until the 2003 act (full text) (Home Affairsreport on the 2003 legislation) which limited the mens rea to reasonable belief.
Yesterday's furor was over Craigslist. But as this comment suggested, the real story may wind up being the lines between actual consent, perceived consent, and rape.
The Lords' decision was for the defendants, who forcibly gang-raped a woman in her home, because they held that the law permitted mistake of consent, even when unreasonable, to be a defense to the charge of rape. When this hit the press, Parliament convened a committee, chaired by renowned British jurist Rose Heilbron, which produced the Report of the Advisory Group on the Law of Rape.
The Heilbron Committee affirmed the ruling of the Lords, but recommended that changes to the law be made. An amendment was made in 1976 to correct the perceived defects.
The 1976 amendment added anonymity for plaintiffs, but defendants were still permitted to use unreasonable belief that the victim consented until the 2003 act (full text) (Home Affairsreport on the 2003 legislation) which limited the mens rea to reasonable belief.
Yesterday's furor was over Craigslist. But as this comment suggested, the real story may wind up being the lines between actual consent, perceived consent, and rape.
This post was deleted for the following reason: this should be a comment in the open thread. I appreciate the research you've done here but follow-up does not mean a post on the same topic the next day. -- jessamyn
Yes please let's bury something many of us would find interesting in an older thread because this suits the basement dwellers people who have time to refresh and reread every thread from the last thirty days all day long.
posted by clarknova at 7:07 AM on January 12, 2010 [2 favorites]
posted by clarknova at 7:07 AM on January 12, 2010 [2 favorites]
clarknova, have you seen the recent activity page? Makes following threads you have contributed to an awful lot easier.
posted by zarq at 7:11 AM on January 12, 2010
posted by zarq at 7:11 AM on January 12, 2010
For the record, I thought that the conversation about Craigslist had developed in that thread to the point that introducing this issue would constitute a derail.
posted by valkyryn at 7:15 AM on January 12, 2010
posted by valkyryn at 7:15 AM on January 12, 2010
Makes following threads you have contributed to an awful lot easier.
If everyone posted something in a thread just to make it pop up on their Recent Activity, Metafilter would quickly become unusable.
This is a good post. It's a related, but separate topic. Kind of like a history of balloons post the day after the Balloon Boy post.
posted by explosion at 7:15 AM on January 12, 2010
If everyone posted something in a thread just to make it pop up on their Recent Activity, Metafilter would quickly become unusable.
This is a good post. It's a related, but separate topic. Kind of like a history of balloons post the day after the Balloon Boy post.
posted by explosion at 7:15 AM on January 12, 2010
What, you mean the internet didn't invent brutal rapes? That without Craigslist people still found the time and means to victimize and brutalize their spouses or partners, both past and present?
It sort of disgusts me when you can take a trial like Director of Public Prosecutions v. Morgan, replace the female victim with, say, a sex toy, and realize that even in an "enlightened" country like 1975 England, wives were nothing more than property. The men were acquitted because it was deemed reasonable for them to assume that if the husband says "fuck her", she wants to be fucked.
posted by muddgirl at 7:25 AM on January 12, 2010 [2 favorites]
It sort of disgusts me when you can take a trial like Director of Public Prosecutions v. Morgan, replace the female victim with, say, a sex toy, and realize that even in an "enlightened" country like 1975 England, wives were nothing more than property. The men were acquitted because it was deemed reasonable for them to assume that if the husband says "fuck her", she wants to be fucked.
posted by muddgirl at 7:25 AM on January 12, 2010 [2 favorites]
The men were acquitted because it was deemed reasonable for them to assume that if the husband says "fuck her", she wants to be fucked.
No, just the opposite. The whole point of the reform was to replace the previous, subjective standard with the new-and-improved objective standard. Meaning that it now has to be reasonable for an accused rapist to have had the belief that consent had been obtained, but at the time of their trial, it did not. They were acquitted on the basis of an unreasonable belief that she had consented.
In the US, the standard is an objective one, like the reformed UK standard -- the belief that the accused rapist had consent must be reasonable.
posted by palliser at 7:49 AM on January 12, 2010 [1 favorite]
No, just the opposite. The whole point of the reform was to replace the previous, subjective standard with the new-and-improved objective standard. Meaning that it now has to be reasonable for an accused rapist to have had the belief that consent had been obtained, but at the time of their trial, it did not. They were acquitted on the basis of an unreasonable belief that she had consented.
In the US, the standard is an objective one, like the reformed UK standard -- the belief that the accused rapist had consent must be reasonable.
posted by palliser at 7:49 AM on January 12, 2010 [1 favorite]
It comes down to the same thing, palliser. Sorry for my imprecise terminology.
posted by muddgirl at 7:53 AM on January 12, 2010
posted by muddgirl at 7:53 AM on January 12, 2010
The men were acquitted because it was deemed reasonable for them to assume that if the husband says "fuck her"
They were acquitted on the basis of an unreasonable belief that she had consented.
It comes down to the same thing, palliser. Sorry for my imprecise terminology.
Um. No. It's not the same thing at all. If the standard were "reasonable" belief, then you would have been correct - the acquittal would be predicated on a finding that "it was ... reasonable for them to assume that ... she wants to be fucked." However, that was not the standard. The standard extended even to unreasonable belief. So the justice system did NOT, in fact, as you say, deem such a thing reasonable. So quit getting in a huff about how it did.
posted by jock@law at 7:57 AM on January 12, 2010 [1 favorite]
They were acquitted on the basis of an unreasonable belief that she had consented.
It comes down to the same thing, palliser. Sorry for my imprecise terminology.
Um. No. It's not the same thing at all. If the standard were "reasonable" belief, then you would have been correct - the acquittal would be predicated on a finding that "it was ... reasonable for them to assume that ... she wants to be fucked." However, that was not the standard. The standard extended even to unreasonable belief. So the justice system did NOT, in fact, as you say, deem such a thing reasonable. So quit getting in a huff about how it did.
posted by jock@law at 7:57 AM on January 12, 2010 [1 favorite]
« Older CLASSIFICATION SAPPHIRE VORPAL JULIET POTUS EYES... | You have been: poked by your ex-gaoler Newer »
This thread has been archived and is closed to new comments
posted by zarq at 6:55 AM on January 12, 2010