Getting the balance right between victim and perpetrator

Many men (unfortunately) get away with rape because the offence is under-reported, generally unwitnessed, and notoriously difficult to prove in a court of law. Commonly, the problem lies, not in proving that a sexual encounter took place, but in proving lack of consent. Consequently, following lobbying from women's groups and others, laws were changed to make lack of consent easier to prove.

The concern, however, is that these legislative changes are convicting some persons, who would not widely be considered "rapists", and that the general public is not aware of the breath of circumstances that can now lead to a sexual assault conviction. Those convicted face a maximum penalty (for sexual intercourse without consent) ranging from 12 years to life imprisonment depending on the state/territory.

The changed laws include the (UK) Sexual Offences Act 2003 and, in Australia, various amendments to state/territory Crimes Acts/Criminal Codes. While exact provisions vary across jurisdictions the big change was that in a range of defined circumstances "the courts now start from the presumption that the victim did not consent". This is a radical departure from the normal rule in legal cases: semper necessitas probandi incumbit ei qui agit, "the necessity of proof always lies with the person who lays charges".

Under UK law, for example, there is now a conclusive presumption that no consent existed in two particular circumstances: (1) where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (includes so-called "medical rape" cases), and (2) where the defendant intentionally induced the complainant to consent by impersonating someone known personally to the complainant ("impersonation cases").

One unusual British case was R v Devonald [2008] , where the conviction of causing a person to engage in sexual activity without consent was upheld. The male defendant had posed as a young woman on the internet and persuaded the male victim to masturbate in front of a webcam. [The defendant had been outraged that the complainant had jilted his daughter, and sought vindictive revenge by way of embarrassing him.] Their Lordships in the appellate court determined that it had been open to the jury to find deception as to the "purpose" of the act, if not the nature.

In addition to the two circumstances of conclusive presumption that no consent existed, there are (in the UK) evidential presumptions about consent in six additional circumstances (where defendants can defeat the presumption of lack of consent by showing they had reasonable grounds to believe that their sexual partner consented).

The legal changes made in Australia in regard to consent were more draconian. This is because a much broader range of circumstances were nominated, where there was a conclusive presumption of lack of consent. In the (most extreme) cases of Tasmania and the Australian Capital Territory (ACT), for example, there are nine (as opposed to two) circumstances, where consent is conclusively negated. Previously a defendant, who could prove an honest albeit unreasonable belief in consent, would be acquitted of the offence.

Tasmania alone also brought in a rule that "a person does not freely agree to an act if the person does not say or do anything to communicate consent". Valid, communicated consent to sex is therefore now required by law in Tasmania, not mere submission.

Differences in wording are also noteworthy. In the UK consent is conclusively negated (in cases of deceit) only when "the defendant intentionally deceives". By contrast, in some Australian jurisdictions all that is required is for the victim's consent to be induced by "a mistaken belief".

Despite Australia having more severe rape laws, there seems to have been more outcry against rape law "reforms" in the UK.

Barrister Jon Holbrook and journalist Sarah Vine, for example, have drawn attention to the way British rape laws are now invoked in respect of sexual encounters that are foolish or stupid, but which (in their opinion) should not engage the criminal law. They say that rape laws are now being used against some men whose behaviour does not, by a proper yardstick, warrant the tag 'rapist'. Effectively, they claim that men in rape cases can be automatically assumed guilty and that this all seems to be part of a political attempt "to push up rape conviction rates and meet targets".

Vine recommends that, because of current UK rape laws, Romeo would be well advised to get written consent, and also keep a breathalyser and drug sniffer dog by the bed (in case Juliet wakes up and claims her consent was not 'freely and knowingly' given for want of intoxication from drink or drugs).

Controversy in the UK has most commonly centred on issues of intoxication at the time of sex, with the initial conviction the case of R v Bree drawing a lot of concerns.

Bree, the complainant, and others went out for an evening. All had been drinking heavily and, in the woman's case, this impaired her memory. They returned to the woman's flat, the pair arm in arm. The woman's case was that, although she remembered various sexual acts and being sick, she 'did not want to have sex, but she did not say so to him'. She agreed that she had not said 'no', but contended that she had never consented. Bree accepted that the complainant was intoxicated but claimed that she was capable of consenting, had undressed herself and appeared willing and co-operative. A jury convicted Bree of rape under the Sexual Offences Act and he was sentenced to five years imprisonment. Bree appealed on the basis that the judge had not made it clear that a person can consent to sexual activity even when intoxicated.

The Court of Appeal allowed Bree's appeal, indicating that "we do not think that the issue of consent should be left to a jury without some further direction". By then Bree had spent six months in prison. The Court of Appeal also held that "where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing..., and in drink agrees to do so, this would not be rape." In a broader context, retired British Judge Mary Mowat further observed that 'the rape conviction statistics will not improve until women stop getting so drunk'.

The outcome of such a case in Australia is likely to be different in at least some states/territories. According to the Australian Law Reform Commission "In Victoria, South Australia, Tasmania and the Northern Territory, there is no consent where the complainant is so affected by alcohol or other drugs as 'to be incapable of freely agreeing'. In the ACT, the effect of alcohol or other drugs is less qualified; there is no consent if consent is caused by 'the effect of intoxicating liquor, a drug or anaesthetic'. In NSW, there may be no consent where a complainant was 'substantially intoxicated by alcohol or any drug'".

Not paying a prostitute for sex is also rape in some Australian states/territories.

Historically, the landmark (English) common law case is the Linekar case of 1993. In brief, Linekar, who had no money on him, approached the complainant, a prostitute, and negotiated a fee of £25 for sexual intercourse. After sexual intercourse Linekar ran off without paying. He was charged with rape, contrary to section 1 of the Sexual Offences Act 1956 (UK).

At the trial, the judge directed the jury that if L had intended, from the outset not to pay for sexual intercourse with the woman, in breach of their agreement, then the woman's consent was negated and he should be convicted of rape. The jury found L guilty by a majority of eleven to one. The Appeals Court decided that the direction was not correct, and that the conviction should be quashed. It was held that existence of fraud about defaulting of payment to a prostitute did not constitute non-consenting sex, if the woman knew the nature of the act and with whom she was having intercourse.

While this decision predates changes to UK rape laws made in 2003, it seems that reneging on payment to a prostitute for sex is not rape today in the UK, though on one view the possibility could arise if deception as to payment involves coercive inducement or altered the nature or purpose of the act in question. Making off without payment for goods or services is, nevertheless, an offence in the UK under the Theft Act 1973.

In Australia, the same issue came into prominence, on 6 February 2015, when a Canberra man was sentenced for raping a prostitute. According to the Canberra Times the defendant handed over a sealed envelope (supposed to contain $850) but stopped the woman from opening it to check the money, saying: "No, no, don't open it now, it's – you have to trust me on this – it's part of my fantasy that it's all about the romance." The pair had sex but the woman later opened the envelope to find that, instead of money, inside was a paper bag that had been folded to make it feel like a wad of cash, as well as a white card with a printed red rose on it. The woman later reported the incident to police and the man was charged with rape.

The ACT's version of the Crimes Act 1900 (Section 67) states that the grounds, on which it can be established that consent of a person to sexual intercourse is negated, include "consent caused by a fraudulent misrepresentation of any fact made by the other person". The Defendant pleaded guilty to sexual intercourse without consent and received eight months' jail and a two-year good behaviour order. His lawyers told the court he was prepared to pay reparations, but the Crown indicated that none was being sought. Tasmania and WA have similar provisions concerning fraudulent misrepresentations as exist in the ACT, so that a similar outcome would also be likely in those states.

US courts generally view non-payment of a prostitute as "theft of services" rather than rape. Theft of services is the legal term for obtaining services without paying the provider.

Philadelphia Municipal Court judge Teresa Deni in 2007, for example, in a controversial case ruled that refusal to pay a sex worker was not rape, but rather "theft of services." In the case, a woman had agreed to meet a man from Craigslist and have sex with him for $150. The man asked the woman if his friend could join in for an additional $100, and she agreed. When the woman met with the men, they refused to pay. Instead, they held her at gunpoint and forced her to have sex with them for free. Judge Deni ruled that since the woman was a sex worker, and had given prior consent under the assumption of being paid, the case was not a rape. She decided instead that he should be held on armed robbery for "theft of services." [Many lawyers in the US questioned the verdict handed down by Judge Deni. They contend that the crime was indeed rape because the woman should have been regarded as withdrawing her consent upon discovering that she was not going to be paid and the sex was at gunpoint.]

A widely supported aspect of the changed rape laws is the wider definition of rape (now often referred to as "sexual intercourse without consent" or "sexual assault") . Historically, the common law defined rape as "the carnal knowledge of a woman forcibly and against her will, with carnal knowledge defined as the penetration of the female sex organ by the male sex organ. (Other acts generally came under the crime of sodomy.) Revised legislation in English-speaking countries broadened the crime to include penetration of the anus or mouth by a person using any part of their body or a foreign object. Besides covering a wider range of acts, it is now possible for women, as well as men, to be convicted.

Most examples of female-on-male rape have involved the statutory rape of under-age males, most commonly rape by a teacher on one of her students. Women can also rape men through unwilling (anal or oral) penetration with fingers or objects, and through coercing them to penetrate the woman with an erect penis.

In the US, Chantae Gilman of Seattle is facing charges of one count of second-degree rape after she apparently broke into her 31-year-old male neighbour's apartment. The victim allegedly shoved the 240-pound woman off of him, when he woke up to her having sex with him. Court documents showed that she held the victim down during the alleged rape and told him to be quiet.

There are also documented cases of female-on-female rape, which can occur by forcible stimulation of female genitalia or forced penetration. In the UK Claire Marsh was convicted of rape and sentenced to seven years for her part in a gang rape. Marsh, of Margate, Kent, was involved in ripping off the female victim's clothes and pinning her to the ground so she could be gang raped "without resistance" by others.

In Australia a big issue, yet to be properly tested in the Courts, is the full extent to which, "fraudulent misrepresentation of any fact" (mentioned in ACT, WA and Tasmanian legislation), invalidates consent to sex. We have already had a case in Australia, where a person has been jailed (on charges of sexual intercourse without consent) for deceiving a prostitute about payment for sex. What if the man lied in other ways? What if he lied about his wealth or occupation? What if he said he loved her, when he did not? What if he was a married man but told the woman he was single? What if he misrepresented an unimportant fact? What if the woman lied in similar ways or lied about her age, altered her appearance with make-up and hair dye, or claimed that she was using contraceptive pills when she was not? The capacity of "fraudulent misrepresentation of any fact" to invalidate consent to sex truly opens up a Pandora's box of potential rape charges.

A very recent Australian case involving deception was the conviction by a Victorian court of an ethnic Indian man for sexual penetration by deception. The Judge said the victim's actions must also be "seriously questioned". The Defendant had met a woman on-line using a dating profile with a fake name, and falsely stating that he was a blond muscular Caucasian man. He almost got away with the deception by insisting that she kept her eyes closed during a tryst at her place. The woman, however, caught a glimpse of his dark skin afterwards (in the bathroom) and reported him to police.

In conclusion, I think there are two problems with legal changes, that effectively deem particular types of sexual encounters to be non-consensual.

The first is that the changes went too far in the range of circumstances captured, and dramatically changed the burden of proof to the detriment of the defendant. Australian jurisdictions went further down this path than, for example, the UK. [While I have a lot of sympathy for women, who were raped but can't prove it at law, we also need to be mindful that false rape allegations are not unknown. It has been reported that in the UKat least 109 women have been prosecuted for making false rape allegations in the last five years.]

Secondly and finally, it would appear that no amount of legislative change can be expected to overcome problems such as of lack of witnesses or evidence in a rape case. Issues of 'he says... she says" affect all types of trials, criminal and civil alike. They are innately insoluble, and are almost universally decided in favour of the defendant (for lack of proof) because protecting the innocent is rightly at the core of our legal system.