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Sexual Offences (Amendment)

Volume 892: debated on Wednesday 21 May 1975

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3.38 p.m.

I beg to move,

That leave be given to bring in a Bill to amend the law relating to rape.
The purpose of the Bill is to change the law relating to rape, because as it stands it is more likely to protect criminals than to prevent crime. It is a deterrent to reporting crime rather than a deterrent to crime itself. It provides a loophole for the villain rather than a shield for the victim.

Rape is often seen by men with Tarzan minds and Tom Thumb imaginations as a bit of a game—an inevitable result of skylarking between two promiscuous people. In fact, in many cases rape is a vicious and degrading crime—far more important and far more evil than crime against property. Yet, as everyone knows—despite the Home Secretary's astounding statement that he has no evidence—the majority of raped victims do not report these crimes. In all other crimes, the first reaction is to telephone the police. Why, therefore, are so many crimes of rape not reported? I believe that the reason is that the balance of law—between protecting an innocent victim and an innocent defendant—is tipped much too heavily against an innocent victim of rape.

In the absence of statute law for rape we have to depend on common law. This law has now been clarified by the Law Lords, who have specified that a man cannot be convicted of rape if he believed that the woman consented, however unreasonable that belief may have been.

The central theme of my Bill is that a man's belief that a woman consented should be considered only if it is put forward on reasonable grounds. To consider a belief based on unreasonable grounds, as the present law does, is to belittle the victim and to befriend the rapist.

I am aware that many lawyers are content with this judgment and claim that it will have little, if any, effect. Unfortunately for them, that claim has been undermined by one of the Law Lords who gave the judgment. He said that if the three men in that case had claimed their belief that the woman was play acting when she struggled, rather than claiming that she did not struggle, they might have been acquitted. In other words, if rapists tell the right kind of lies, they will be acquitted and get away with it.

The alibi, that a rapist thought his victim was play acting when she struggled, has now acquired a new respectability and requires no reasonable basis.

Juries are not clairvoyants and they will be doubtful about convicting a rapist now that it is abundantly clear, after this judgment, that he needs no reasonable ground for holding any belief, however bizarre it may be. Doubt is a formidable weapon in the hands of a defence counsel, already well armed, well trained and well able to demolish most respectable women in the witness box.

This ruling will make a difference to the attitude not only of juries but of women. Many of them are already reluctant to report rape, and they will now be even more unwilling to come forward.

A victim of rape must not only endure the original assault, police interrogation, medical examination and counsel's cross-examination but now listen to the rapist claim his "belief", on unreasonable grounds, that she was willing to accept what she received. Clearly, very few women will feel able to suffer that kind of injustice on top of rape, and women will be unwilling to report to the police. If women do not report rape to the police, how shall we catch the rapist?

I am convinced that the effect of this judgment will be to accelerate an already escalating rate of increase in the number of rapes. Therefore, we need urgent action by the Government. Failing that action, I shall continue again and again to press this Bill until the law is changed.

I intend to bypass the legal thickets surrounding the interpretation of the existing law and seek to change the law itself. Therefore, I suggest that the offence of rape should now be changed so that it shall be defined as follows:
"A man who has sexual intercourse with a woman without her consent, and without reasonable belief in her consent, is guilty of rape."
I understand that this Bill is to be opposed, but effective opposition will require more than a defence of the existing legal situation on rape. It will now also require a rejection of my new proposition.

In addition, I propose that the Criminal Law Revision Committee should be asked by the Home Secretary to consider, first, a guarantee of anonymity of rape victims in court and, secondly, the prohibiting of the disclosure of a woman's past sex life in court, because that is irrelevant to the question of sexual assault anyhow. However, I urge the Home Secretary not to refer my proposal for a change in the law requiring reasonable grounds for a belief to the Criminal Law Revision Committee because the need for this change is urgent. I suggest that he should consider and bring forward this change of his own accord.

The present Home Secretary will go down in history as, among other things, one of the most compassionate and enlightened men ever to grace that high office. I hope that today he will not vote against my Bill but will take it to the Home Office for detailed scrutiny during the Whitsun Recess and that when the House reassembles in a few weeks, he will announce his intention to introduce urgent legislation and to act on these lines. If he does that, he will reduce violent crime, remove the fears aroused by this judgment, and earn the gratitude of millions of women throughout this land.

3.47 p.m.

Yes, Mr. Speaker.

I think that the whole House will have sympathy with the motives of my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) because the problems that have precipitated his interest are of undoubted concern. However, it is important to realise what the Bill is not about and what the law certainly has no ambiguities about.

The situation that has arisen in Cambridge recently is not one about which the present state of the law should give us any reason for concern. My greatest objection to the Bill is that my hon. Friend's proposal would relax both the burden of proof relating to serious crime and to some measure, if I understand him correctly, the degree of scrutiny to which a witness who makes an allegation of rape is subjected.

It is never pleasant for a witness to give evidence in a serious matter, but my hon. Friend is in error if he thinks that it is necessarily more unpleasant for a woman to give evidence in this kind of case than for witnesses in many other cases. I have in mind, for example, persons involved in blackmail cases.

The important point is that this is an area of human relationships where the tendency or the incentive to tell lies is to be found in almost equal balance. In a snatch and grab rape situation, such as the Cambridge syndrome, as I will call it for ease of reference, which is clearly not within the compass of matters that we have under consideration and would be regarded as rape in any circumstances, either party might easily be lying.

My hon. Friend referred to a defendant in a particular case telling a story and the jury believing him and wrongfully acquitting him. It is equally true that a promiscuous woman, repenting of her promiscuity, might decide to tell lies, as it were, to give a gloss of respectability to her situation. I certainly would not mention the name of the case—it would be professionally improper—but 18 months ago I prosecuted in an alleged rape case where a somewhat similar situation arose. Although the evidence, on the face of it, was very strong, the amibiguities of the woman witness and the contradictions that she made in the box led me, at any rate, in the privacy of my own thoughts, to have considerable anxiety. I was as relieved as were, I think, others in the court that after a long deliberation the jury acquitted.

My hon. Friend is, I know, concerned about the recent case of Morgan and others which appeared in the House of Lords. In that case the House of Lords held by a majority that it was necessary only for a person honestly to believe that the woman concerned had consented and that it was not necessary for that belief to be reasonably held. Let me remind the House that in that case the jury did not believe, and the House of Lords said no jury could believe, and the appeal was dismissed with no damage done.

The real point here is this: honesty of belief is fundamental to criminal law. If one honestly believes an act, sometimes in quite improbable circumstances, that is, in all but absolute offences, such as offences under the food and drugs legislation, the essential defence. It seems to me profoundly disturbing that there should be any attempt to relax the stringent requirements of the law in relation to a serious offence. In fact, the reverse should be the case. The more serious an offence, the more onerous should be the burden on the prosecution, the more it should be demanded of a witness that he or she should be subjected ruthlessly to cross-examination, and the more one should be required to look into the frame of mind of the person concerned.

It is said repeatedly in addresses to juries that one cannot unscrew the top of a man's head and see what is in his mind. However, one can see in what he does, in the demeanour he adopts and the stories he tells, whether he is behaving honestly.

The law is perfectly adequate as it stands. The House of Lords decision is not a licence for a sophisticated rapist. There is still the requirement of a defendant that he shall have an honest belief.

In addition, anyone who engages in sexual activities outside marriage is, I submit, presented with many hazards. This is, above all, an intimate field of emotional human relationships where

Division No. 214.]


[3.55 p.m.

Adley, RobertCallaghan, Jim (Middleton & P.)Doig, Peter
Allaun, FrankCampbell, IanDunlop, John
Ashley, JackCanavan, DennisDunn, James A.
Ashton, JoeCarmichael, NeilDunwoody, Mrs. Gwyneth
Bain, Mrs. MargaretCarter, RayDurant, Tony
Baker, KennethCarter-Jones, LewisDykes, Hugh
Barnett, Guy (Greenwich)Chalker, Mrs. LyndaEdge, Geoff
Beith, A. J.Clark, Alan (Plymouth, Sutton)Edwards, Robert (Wolv SE)
Benn, Rt. Hon. Anthony WedgwoodClemitson, IvorElliott, Sir William
Berry, Hon. AnthonyCocks, Michael (Bristol S.)Ellis, John (Brigs & Scun)
Biggs-Davison, JohnCohen, StanleyEllis, Tom (Wrexham)
Blenkinsop, ArthurColeman, DonaldEnglish, Michael
Booth, AlbertCope, JohnEvans, Fred (Caerphilly)
Boothroyd, Miss BettyCorbett, RobinEvans, Ioan (Aberdare)
Bottomley, Rt. Hon. ArthurCostain, A. P.Evans, John (Newton)
Boyson, Dr. Rhodes (Brent)Cox, Thomas (Tooting)Fairgrieve, Russell
Bradley, TomCraigen, J. M. (Maryhill)Fell, Anthony
Braine, Sir BernardCryer, BobFitch, Alan (Wigan)
Bray, Dr. JeremyCunningham, Dr. J. (Whiteh)Flannery, Martin
Brown, Sir Edward (Bath)Dalyell, TamFletcher, Ted (Darlington)
Brown, Ronald (Hackney S.)Dean, Joseph (Leeds West)Forrester, John
Buchan, NormanDelargy, HughFreeson, Reginald
Butler, Adam (Bosworth)Dempsey, JamesFreud, Clement

rationality is not always to be expected of human beings. I use the phrase "She did not say 'Yes', she did not say 'No'", and that represents a hazardous situation.

The letter to The Times by Professor J. C. Smith on 7th May, in condemning an editorial in that newspaper of two days previously, said:

"A man who intends to have sexual intercourse with a consenting woman may have an immoral intention but it is scarcely the kind of criminal mind which should make him liable for an offence carrying a maximum sentence of life imprisonment.
The fact that he ought to have known that the woman was not consenting is not a valid ground for imputing to him an intention which he did not possess. To do so is to impose the same kind of objective test of criminal liability as was applied by the House of Lords in DPP v. Smith".

That was a case of murder.

One must always look at the frame of mind of the person concerned. Once one moves away from that one moves in the direction of absolute offences, and once one moves in that direction the dangers of the conviction of the innocent become greater. It always has been a fundamental principle of our law that it is far better for a guilty person to go free than for an innocent person to be condemned. For these reasons I oppose the Bill.

Question put pursuant to Standing Order No. 13 ( Motions for leave to bring in Bills and nomination of Select Committees at commencement of Public Business):—

The House divided: Ayes 228, Noes 17.

Fry, PeterLitterick, TomRodgers, Sir John (Sevenoaks)
Garrett, John (Norwich S.)Loveridge, JohnRooker, J. W.
George, BruceLoyden, EddieRoss, Stephen (Isle of Wight)
Golding, JohnLuce, RichardRost, Peter (SE Derbyshire)
Graham, TedMabon, Dr. J. DicksonSt. John-Stevas, Norman
Grant, Anthony (Harrow C.)McCartney, HughScott-Hopkins, James
Grant, George (Morpeth)McCrindle, RobertSedgemore, Brian
Gray, HamishMacfarlane, NeilSelby, Harry
Griffiths, EldonMacGregor, JohnShaw, Arnold (Ilford South)
Grimond, Rt. Hon. J.McMillan, Tom (Glasgow C.)Shaw, Giles (Pudsey)
Grist, IanMcNamara, KevinShepherd, Colin
Grocott, BruceMadel, DavidSillars, James
Hamilton, James (Bothwell)Mahon, SimonSims, Roger
Hamilton, W. W. (Central Fife)Marks, KennethSinclair, Sir George
Hampson, Dr. KeithMarten, NeilSmall, William
Hannam, JohnMaxwell-Hyslop, RobinSmith, Cyril (Rochdale)
Hardy, PeterMaynard, Miss JoanSmith, Dudley (Warwick)
Harrison, Col Sir Harwood (Eye)Meacher, MichaelSpriggs, Leslie
Hatton, FrankMellish, Rt. Hon. RobertStanley, John
Hayman, Mrs. HeleneMeyer, Sir AnthonySteel, David (Roxburgh)
Henderson, DouglasMikardo, IanStewart, Rt. Hon. M. (Fulham)
Hicks, RobertMiller, Hal (Bromsgrove)Stoddart, David
Higgins, Terence L.Miller, Dr. M. S. (E Kilbride)Taylor, Mrs. Ann (Bolton W.)
Holland, PhilipMoonman, EricTebbit, Norman
Hooley, FrankMoore, John (Croydon C.)Thomas, Ron (Bristol NW)
Hooson, EmlynMorgan-Giles, Rear-AdmiralThompson, George
Horam, JohnMorris, Charles R. (Openshaw)Thorne, Stan (Preston South)
Hordern, PeterMorris, Michael (Northampton S.)Thorpe, Rt. Hon. Jeremy (N Devon)
Hoyle, Doug (Nelson)Mudd, DavidTierney, Sydney
Huckfield, LesNelson, AnthonyTomlinson, John
Hughes, Mark (Durham)Neubert, MichaelTownsend, Cyril D.
Hughes, Roy (Newport)Newens, StanleyTugendhat, Christopher
Hunter, AdamNormanton, TomUrwin, T. W.
Irving, Charles (Cheltenham)Onslow, CranleyWainwright, Edwin (Dearne V.)
Jackson, Colin (Brighouse)Orbach, MauriceWainwright, Richard (Colne V.)
Jeger, Mrs. LenaPage, Rt. Hon. R. Graham (Crosby)Wakeham, John
Jenkins, Hugh (Putney)Pardoe, JohnWalker, Terry (Kingswood)
Johnson, James (Hull West)Park, GeorgeWatkins, David
Johnson Smith, G. (E Grinstead)Parkinson, CecilWeatherill, Bernard
Jones, Dan (Burnley)Pavitt, LaurieWellbeloved, James
Jopling, MichaelPeart, Rt. Hon. FredWelsh, Andrew
Kelley, RichardPenhaligon, DavidWhite, Frank R. (Bury)
Kilfedder, JamesPeyton, Rt. Hon. JohnWhitelaw, Rt. Hon. William
Kimball, MarcusPrescott, JohnWhitlock, William
King, Tom (Bridgwater)Price, William (Rugby)Wiggin, Jerry
Kitson, Sir TimothyPrior, Rt. Hon. JamesWigley, Dafydd
Lamborn, HarryRadice, GilesWilson, Alexander (Hamilton)
Lamond, JamesReid, GeorgeWise, Mrs. Audrey
Lane, DavidRichardson, Miss JoWoodall, Alec
Leadbitter, TedRidley, Hon. NicholasWoof, Robert
Le Merchant, SpencerRoberts, Albert (Normanton)
Lester, Jim (Beeston)Roberts, Wyn (Conway)TELLERS FOR THE AYES:
Lewis, Arthur (Newham N.)Roderick, CaerwynMr. Peter Snape and
Lewis, Kenneth (Rutland)Rodgers, George (Chorley)Mr. A. W. Stallard.
Lewis, Ron (Carlisle)


Brotherton, MichaelFletcher, Alex (Edinburgh N.)Sandelson, Neville
Clarke, Kenneth (Rushcliffe)Jessel, TobyStanbrook, Ivor
Critchley, JulianLawrence, IvanWilson, William (Coventry SE)
Davies, Bryan (Enfield N.)Lee, John
Davis, Clinton (Hackney C.)Mates, MichaelTELLERS FOR THE NOES:
Drayson, BurnabyMayhew, PatrickMr. Russell Kerr and
Edelman, MauricePowell, Rt. Hon. J. EnochMr. Marcus Lipton.

Question accordingly agreed to.

Bill ordered to be brought in by Mr. Jack Ashley, Mrs. Lynda Chalker, Miss Janet Fookes, Mr. John Hannam, Mrs. Helene Hayman, Mr. Emlyn Hooson, Mr. David Lane, Mrs. Millie Miller, Mr. A. W. Stallard and Mr. Brian Walden.

Sexual Offences (Amendment)

Mr. Jack Ashley accordingly presented a Bill to amend the law relating to rape: and the same was read the First time and ordered to be read a Second time upon Friday 11th July and to be printed. [Bill 168.]