Rape is increasingly recognised as a grave abuse of human rights around the world, but remains a tough crime to prosecute. Rape can be difficult to prove, often hinging on one person’s testimony against another, but even where there is strong evidence of a violent attack, women are still not seeing the justice they deserve.
The UN Human Rights Council will receive a report this year that seeks to: “Break the cycle of impunity; and to prosecute perpetrators, ensuring that they are not protected by hidden domestic norms that are still part of criminal law or criminal procedure”. The UN researchers look set to uncover failings in criminal justice systems across the globe.
For example, in the UK, the average victim brave enough to report a rape has just a one in seventy chance of seeing their rapist brought to justice, effectively decriminalising rape. Sadder still, this includes violent attacks where the bar should be lowest.
Back in the early noughties, the UK’s Sexual Offences Bill sought to make it easier to bring violent rapists to justice by making evidence of violence in rape a substantive or conclusive presumption, meaning that once violence was proven, consent would automatically be deemed absent, allowing a clear path to prosecution.
However, the idea was watered down in the House of Lords to an evidentiary presumption, an argument which is easily rebutted in court. The defendant only has to take the stand to say that the victim enjoys rough sex, and the presumption could be over-turned. The trial then proceeds in the normal way. Quite what the jury is supposed to make of all this remains unclear.
The rough sex defence is very controversial and, after the horrific murder of British backpacker Grace Millane in New Zealand, is due to be outlawed in cases of non-sexual violence in the UK as part of the Domestic Abuse Bill. Yet surprisingly, there is no mention of sexual offences in the rough sex defence clause in the bill. Strangely for a bill about domestic abuse, the word rape does not appear anywhere within its seventy pages.
Using the rough sex defence in rape cases leans on the culture of sadomasochism without considering its tight rules ensuring consent and freedom to leave at all times. Accepting the defence also ignores the fact that many violent serial rapists are sexual sadists with a history of sadomasochistic relationships, obscuring the reality of ongoing adult grooming and sexual abuse.
A BBC investigation recently showed how the rough sex defence is used regularly in English courts, and how fear of it has spread down through the justice system. The report showed how police investigations stop once evidence of previously violent sex emerges. One victim saw her case dropped after sadomasochistic videos came to light, despite text messages from her partner showing how she had been part of a horrific catalogue of adult grooming, including:
“There’s no going back now. You’ve been raped.”
If the rough sex defence is removed from non-sexual crimes but not sexual ones in the UK, a bizarre double standard will be introduced, continuing the denial of justice for victims of violent rape. The UK should take this opportunity to lead, and outlaw use of the defence in sex crimes too, working towards protecting women and genuinely seeking justice for victims.
It will be interesting to see how the UN report compares and contrasts the UK’s failings with others around the globe. Let’s hope we also see best practices come through to lead the way.
Caroline is a law student who tackles discrimination and climate change through her pro bono work. She is also an experienced campaigner, fund raiser, environmental investor, board member and governor, with expertise in sustainable investment, sustainable commerce and challenging companies on their environmental and human rights track record.