By Dr Michael Naughton, Reader in Sociology and Law (University of Bristol Law School and School of Sociology, Politics and International Studies (SPAIS)).
Michel Foucault’s methodology for understanding the contemporary moment was to conduct what he termed histories of the present; forms of genealogical analysis that examine the operation of the ‘truths’ peculiar to ‘the societies within which we find ourselves’, the ‘truths’ of ‘what we are’, the ‘truths’ that we live by; how we arrived at where we are Today; our present situation. Moreover, for Foucault, if we want to understand present-ness, we should problematise accepted and presentist thinking by looking for defining moments in history when the problematic under analysis was different; when things changed.
From this approach, this short article considers the existing law on rape under the Sexual Offences Act 2003 against the law governing rape that it replaced under the Sexual Offences Act 1956 in the context of the presumption of innocence, which all criminal laws are supposed to adhere to. It is argued that the Sexual Offences Act 2003 represents something of a wrong turn in law as it inverts the presumption of innocence by requiring those accused of rape to prove something which is almost impossible to prove – that they had a reasonable belief that consent to sex was given by a complainant who is saying that they didn’t give such consent. Not only is the current law on rape out of line with the presumption of innocence, then, it also renders innocent victims of false allegations vulnerable to being convicted for alleged crimes that they did not commit or which did not even occur.
The presumption of innocence
The presumption of innocence is a long standing principle that sits at the heart of the criminal justice system that can be traced to the 18th Century. The right for those accused of crimes to be presumed innocent is enshrined in the Universal Declaration of Human Rights (UDHR) under Article 11(1), which states:
“…[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
Similarly, Article 6(2) of the European Convention on Human Rights (ECHR) states that:
“…[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The right to be presumed innocent of alleged criminal offences is also enacted by the Human Rights Act 1998 (HRA), which accepts the rights contained in the ECHR into domestic UK law.
In short, the presumption of innocence requires that the criminal justice system is biased in favour of presuming that suspects of alleged crimes or defendants in criminal trials did not commit the offence. It places the burden firmly on the State/Crown to prove guilt. The threshold of evidential proof that an accused person committed the alleged criminal offence is supposed to be set high as evidence must be beyond a reasonable doubt.
A leading authority on the presumption of innocence is the case of Woolmington v The DPP where Lord Sankey famously described the burden on the prosecution to prove the guilt of the accused beyond a reasonable doubt as a “golden thread‟ that ran through the common law of England.
The overriding aim of the presumption of innocence is an attempt to protect innocent people from being convicted even at the expense of guilty offenders escaping conviction for their crimes, as expressed in Sir William Blackstone’s formulation:
“…[i]t is better that ten guilty persons escape than that one innocent suffer.”
The Sexual Offences Act 1956
Part 1 of the Sexual Offences Act 1956 is entitled, ‘Offences, and the prosecution and punishment of offences.’ Under the subheading, ‘Intercourse by force, intimidation, etc’, s.1 defines rape inter alia as follows:
- (1) It is felony for a man to rape a woman.
This straightforward definition contains no exceptions and places no requirement on a man alleged to have committed the offence of rape to prove that he did not commit it. Rather, the offence of rape under the Sexual Offences Act 1956 operates entirely in line with the principle of the presumption of innocence by placing the onus on the person claiming to be a victim of rape and, in turn, the State/Crown, to prove with evidence beyond a reasonable doubt that the alleged rape took place.
As Helena Kennedy in her book, Just Law: The changing face of justice – and why it matters to us all, put it:
“In the adversarial criminal justice system we do not start off from a position of neutrality. We start off with a preferred truth – that the accused is innocent – and we ask the jury to err on the side of that preferred truth, even if they think she (sic) probably did do it. I explain to juries that if they find themselves in the jury room saying I think she probably committed the offence or she may well have done it, they have to stop themselves short, because probabilities are not good enough. The criminal justice system is based on the fundamental value that it is far worse to convict an innocent person than to let a guilty one walk free” (page 11).
The Sexual Offences Act 2003
The current law on rape is contained in s.1 of the Sexual Offences Act 2003, which states:
(1) A person (A) commits an offence if:
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
The introduction of the Sexual Offences Act 2003, then, represents a paradigm shift in the law on rape when compared with the Sexual Offences act 1956. Crucially, it inverts the presumption of innocence by placing the onus on the accused to prove that their belief that sex was consensual in cases where a complainant is claiming that consent was not given.
It is acknowledged that s. 74 of the Sexual Offences Act 2003 defines ‘consent’ for the purpose of the Act and that further definitions are provided in s. 75 on ‘Evidential presumptions about consent’ and in s. 76 on ‘Conclusive presumptions about consent’. These aspects of the Act will not feature in this analysis, however. Indeed, I am only concerned here with how the Sexual Offences Act 2003 relates to the presumption of innocence, which places no onus at all on an accused to prove that they did not commit the alleged crime that they are accused of.
Actus reus and mens rea
Excluding statutory criminal offences where mens rea is not required, the mechanics of criminal law require two component parts to be present to convict individuals accused of criminal offences: the actus reus, which means that the person accused of an alleged crime must have committed it, and the mens rea, which means that they must have had intent or the guilty mind to commit the alleged offence.
This renders innocent victims who are accused of rape under the Sexual Offences Act 2003 vulnerable to false allegations and wrongful convictions. Indeed, where an accused admits that sex took place and that it was intended he satisfies both the actus reus and mens rea components required for a criminal conviction.
As indicated above, an integral part of the presumption of innocence is the burden placed on the prosecution to prove its case against an accused beyond a reasonable doubt. However, the Sexual Offences Act 2003 also effectively nullifies this burden in A said / B said cases, which sees uncorroborated allegations as admissible forms of evidence against an accused.
The key motivations for making false allegations
The Sexual Offences Act 2003 is further problematised by the existing research on the motivations for making false allegations of rape. Kanin’s research, for instance, which is widely regarded as the most cited in its field, evaluated 45 false allegations reported by the police over a 9 year period, which constituted 41% of the total forcible rape cases reported over the period. Kanin’s main finding was that:
‘These false allegations appear to serve three major functions for the complainants: providing an alibi, seeking revenge, and obtaining sympathy and attention.’
Kanin concluded that:
“False rape allegations…reflect impulsive and desperate efforts to cope with personal and social stress situations.”
Building on Kanin’s research, Zutter et al studied a sample of 57 proven false allegations were studied that were provided by the National Unit of the Dutch National Police (NU). They conceptualised ‘gain’ as the predominant motivating factor, which they divided into three distinct categories:
- Material gain;
- Emotional gain; or,
- A disturbed mental state.
Their list was then subdivided into the following eight different categories:
- Material gain;
- A disturbed mental state;
- Relabelling; or,
The overall finding for Zutter et al was that:
“Most false allegations were used to cover up other behaviour such as adultery or skipping school. Some complainants, however, reported more than one motive. A large proportion, 20% of complainants, said that they did not know why they filed a false allegation. The results confirm the complexity of motivations for filing false allegations.”
How did we arrive at the law on rape that we have today?
Following the Foucauldian approach set out in the opening paragraph, the question that we have to ask ourselves is why did we/society shift the law on rape from an adherence to the presumption of innocence to a new regime where those accused of rape merely on the uncorroborated word of an accuser who admit that sex took place and was intended are, effectively, helpless to prevent themselves from being convicted.
I have argued elsewhere that a major problem in the area of alleged sexual offences is the erosion of safeguards that were originally introduced into alleged sex offence trials with the aim of protecting innocent victims of false allegations from wrongful convictions to obtain more convictions.
This includes s. 32(1) of the Criminal Justice and Public Order Act 1994, which abolished the longstanding requirement on judges to issue a warning to juries when summing up the ‘dangers’ of convicting defendants charged with sexual offences on the uncorroborated testimony of alleged victims.
This followed s. 34 of the Criminal Justice Act 1988, which abrogated the requirement on judges to give a warning to juries about convicting an accused on the uncorroborated evidence of a child.
Following the analysis provided in this article, we can add the Sexual Offences Act 2003 to this list, which removed the requirement for corroboration in alleged rape trials, with all of the reforms cited introduced with the express intention of obtaining more convictions for alleged sexual offences and rape.
I have also argued elsewhere that these reforms mean that false allegations and the wrongful convictions that derive from them are now actually facilitated by a criminal justice system that allows uncorroborated witness testimonies to be admissible evidence in criminal trials, despite the inherent unreliability of such evidence.
The analysis presented in this article thus far has been rather anodyne in the sense that it has been focused only on showing how the reforms to the law on rape under the Sexual Offences Act 2003 deviate from the presumption of innocence and the burden of proof on the prosecution, leaving innocent victims vulnerable to false allegations and wrongful convictions.
What is missing from this legal analysis is the human cost to innocent victims of false allegations and wrongful convictions and their families and loved ones. Indeed, from a humanity perspective, the harmful consequences of false allegations and wrongful convictions must be a central part of the debate, which adds an urgency to the reforms necessary to reverse the reforms introduced not only under the Sexual Offences Act 2003 but, also, under the Criminal Justice and Public Order Act 1994 and the Criminal Justice Act 1988. In short, the presumption of innocence must urgently be returned to those alleged to have committed sexual offences and/or rape to protect innocent victims from false allegations and wrongful convictions.
In closing, I think it is important to flag up that I have also written previously about the extensive array of forms of harm caused to genuine victims of rape and other sexual offences, which they may never recover from, and nothing in this article is intended to, or should be read as, detracting from the horrific acts of sexual violation and abuse that they experience.
However, two wrongs do not make a right, and it simply inhumane, wrong and unacceptable that innocent victims of false allegations and wrongful convictions are sacrificed in the way that they currently are in an attempt to increase convictions for such offences. Moreover, putting one type of victim ahead of another type of victim is simply not justified, nor justifiable.
False allegations of sexual offences can also destroy lives. They can ruin careers and reputations, and there can also be permanent and ongoing social stigma, psychological trauma and forms of cultural and financial harm to direct victims and their families when the label ‘sex offender’ or ‘rapist’ is falsely applied.
Reflecting on the presumption of innocence, Noam Chomsky once stated:
“Some may remember, if you have good memories, that there used to be a concept in Anglo-American law called a presumption of innocence, innocent until proven guilty in a court of law. Now that’s so deep in history that there’s no point even bringing it up, but it did once exist.”
Chomsky’s quotation aptly describes the existing law on rape and sexual offences in England and Wales. Without wishing to sound defeatist, until such time as the necessary reforms to restore the presumption of innocence and the burden of proof are implemented the carcasses of innocent victims of false allegations and wrongful convictions will pile ever higher.