Tuesday, 4 September 2012

The law on rape

In among all the media chatter about Julian Assange is some important stuff about what actually constitutes rape.  Kate Smurthwaite has a good point when she wonders why this should matter to so many men.  The two she picks on in particular are Geroge Galloway, who says that
if the allegations made by these two women were true, 100 per cent true, and even if a camera in the room captured them, they don't constitute rape. At least not rape as anyone with any sense can possibly recognise it.
and Brendan O'Neill, who wrote that
in order for rape to have occurred, it is not enough to prove that the woman did not consent; we must also surely prove that the man knows she did not consent, or was utterly reckless as to the question of her consent, and carried on regardless
Both of them are entitled to their opinion as to what the law on rape ought to say.  But what's relevant to Assange's case is what the law, in England and in Sweden, actually does say.

The law in England and Wales in perfectly clear: it's laid down in the Sexual Offences Act 2003. Section 1, "Rape", states that "person (A) commits an offence if he intentionally penetrates the vagina...of another person (B) with his penis [and] B does not consent to the penetration [and] A does not reasonably believe that B consents". Section 75 goes into detail on "Evidential presumptions about consent", telling us that "the complainant is to be taken not to have consented to the relevant act...[if]...The complainant was asleep or otherwise unconscious at the time of the relevant act"

The law in Sweden is equally clear: it's given in Chapter 6 of the penal code (this is the official English translation).

"A person who ... forces another person to have sexual intercourse ... shall be sentenced for rape to imprisonment for at least two and at most six years.

"This shall also apply if a person engages with another person in sexual intercourse...by improperly exploiting that the person, due to unconsciousness, sleep, ... or otherwise..., is in a helpless state."

So one of the accusations against Assange is unquestionably rape in both English and Swedish law.

I don't mean to comment directly on whether Assange is guilty or innocent of rape - he denies the charges, and there are questions about the case against him which can best be decided in a Swedish court.  David Allen Green has discussed the case in detail (read the comments if you want to see the other side of the argument).

Re-reading O'Neill's piece, I'm unsure whether he means to defend Assange or just to make a more general point.  Either way, he's clearly wrong in English law: the relevant criterion for rape to have occurred is not "utter recklessness" about consent, but a lack of "reasonable belief" that it exists.  O'Neill goes on to write that "...rape must involve an intention on the part of the man to commit rape. The man must have a guilty mind - or what is referred to in law as mens rea;- in the sense that he knows he is committing rape."  This is plainly wrong too: it has never been the case that the mens rea requirement trumps the principle that ignorantia juris non excusat.

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