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Sentencing in cases of marital rape: towards changing the male imagination

Published online by Cambridge University Press:  02 January 2018

Kate Warner
Kate Warner*
Affiliation:
University of Tasmania
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Abstract

The failure of rape law to convict more men and to protect more women appears to be attributable to the fact that underlying, and assumed by, the law is a male dominated conception of aggressive and possessive male sexuality and a misunderstanding of the real wrong of rape. The sentencing stage of criminal proceedings offers courts the opportunity to challenge these attitudes. Court of Appeal sentencing decisions in cases of marital and relationship rape are analysed and sentencing principles and practice which endorse and reinforce a male dominated conception of sexuality and the wrong of rape are criticised. So, it is argued, an intimate relationship between the offender and the victim should not be a mitigating factor. Nor should forgiveness be a special mitigating factor in cases of marital rape. And attempts to mitigate rape by explaining it in terms of emotional stress, an excess of seductive zeal or other ways that treat aggressive male sexual behaviour and female passivity as the norm, should not be countenanced. Instead, sentencing guidance should foster attitudes which conceive of sexuality as an expression of equal and sharing relationships.

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 4 , November 2000 , pp. 592 - 611
Copyright
Copyright © Society of Legal Scholars 2000

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References

1. Home Office Circular 69/1986 encouraged the police to have a more sympathetic approach to rape victims. Studies have shown that there have been some improvements in the service provided by the police but disbelieving and stereotypical attitudes persist: S Lees and J Gregory ‘Attrition in rape and sexual assault cases’ (1996) 36 BrJ Crim 1; J Ternkin ‘Reporting Rape in London: a qualitative study’ (1999) 38 Howard J Criminal Justice 17.

2. The Sexual Offences (Amendment) Act 1976, s 2 attempted to control the extent to which a complainant was questioned about her sexual experience. Its effectiveness has been questioned; see J Temkin ‘Sexual History Evidence: the Ravishment of Section 2’ (1993) CrimLR 3.

3. R (1992) 1 AC 592. This was given statutory recognition by the Criminal Justice and Public Order Act 1994, s 142.

4. In a Home Office study of 450 reported rapes in 1996 for which the relationship between complainant and suspect was known, in 22 the suspect was the complainant's current husband: J Harris and S Grace A Question of evidence? Investigating and prosecuting rape in the 1990s (London: Home Office Research Study 196, 1999), p 6.

5. See eg W (1992) CrimLR 905; T (1994) 15 Cr App R (S) 318.

6. Harris and Grace, above n 4, pp 5, 51.

7. Above n 4, pp 1, 51. The conviction rate refers to the proportion of offenders against whom a charge is recorded who were ‘cautioned or found guilty’.

8. The increase in reported rapes does not necessarily indicate a real increase as opposed to an increase in reporting; however, stranger rapes have always been most likely to be reported and the (slight) increase in this category of crimed reported rapes between 1985 and 1996 suggests any significant decrease in incidence is unlikely (see J Harris and S Grace, above n 4, p 5). Victim surveys are not very effective in determining the incidence of rape: see L Zedner ‘Victims’ in The Oxford Handbook of Criminology (Oxford: Oxford University Press, 2nd edn, 1997) pp 576 at 586.

9. N Naffine Feminism and Criminology (Sydney: Allen & Unwin, 1997) p 108.

10. Naffine, above n 9, p 109; L Jarnieson ‘The Social Construction of Consent Revisited’ in L Adkins and V Merchant Sexualising the Social (Basingstoke: Macmillan, 1996) p 58.

11. C Mackinnon ‘Feminism, Marxism, Method and the State: an Agenda for Theory’ (1983) Signs: Journal of Women in Culture and Society 635 at 649–650.

12. N Naffine ‘Possession: Erotic Love in the Law of Rape’ (1994) 57 MLR 10 at 24.

13. V Laird ‘Reflections in R v R’ (1992) 55 MLR 386 at 391.

14. Naffine, above n 12. pp 31–32; Naffine, above n 9, pp 144–149.

15. N Lacey ‘Unspeakable Subjects. Impossible Rights: Sexuality, Integrity and the Criminal Law’ (1998) 11 Can J Law and Jurisprudence 47. especially at 52–54. Historically, the essence of rape was damage to the proprietary value of virginity or chastity to an ‘owning’ male rather than any recognition of a woman's interest in her own sexual freedom. Even now it is sometimes argued that rape protects a proprietary interest in sexuality in that it protects the right to freely dispose of one's body.

16. The effects of the crime on the victim are relevant according to the Billam guidelines (Billam (1986) 8 Cr App R (S) 48) – great trauma is an aggravating factor. The prescription in the National Standards for Pre-Sentence Reports 1995 of contents for reports includes an assessment of the consequences of the offence, including the impact on the victim and it seems victims are sometimes interviewed for this purpose. But the use of ‘victim impact statements’ remains controversial in England: see A Ashworth Sentencing and Criminal Justice (London: Butterworths, 2nd edn, 1995) pp 309–312; E Erez ‘Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice’ (1999) CrimLR 545.

17. (1986) 8 Cr App R (S) 48.

18. (1988) 10 Cr App R (S) 13

19. Ibid, 15.

20. (1990) 12 Cr App R (S) 1.

21. (1991) 12 Cr App R (S) 638.

22. (1993) 14 Cr App R (S) 256.

23. (1994) 15 Cr App R (S) 757.

24. (1995) 16 Cr App R (S) 770.

25. (1996) 2 Cr App R (S) 246.

26. (1997) 2 Cr App R (S) 340.

27. (1988) 10 Cr App R (S) 329.

28. (1992) 13 Cr App R (S) 33.

29. (1992) 13 Cr App R (S) 175.

30. (1993) 14 Cr App R (S) 434.

31. (1996) 1 Cr App R (S) 309.

32. (1996) 2 Cr App R (S) 342.

33. (1998) 1 Cr App R (S) 375.

34. (1995) 16 Cr App R (S) 388.

35. (1995) 16 Cr App R (S) 72.

36. (1990) 12 Cr App R (S) 1.

37. The victim was kicked, pushed and dragged; she left the flat looking distressed and with a cut lip.

38. (1991) 13 Cr App R (S) 33.

39. The court's description of the facts also states that the appellant attempted to penetrate the complainant anally; this was not mentioned as an aggravating factor although clearly as a ‘further sexual indignity or perversion’ it was.

40. (1993) 14 Cr App R (S) 256.

41. (1991) 2 WLR 1065.

42. (1993) 15 Cr App R 318.

43. (1993) 15 Cr App R 318 at 320. The court considered the sentence of 30 months gave sufficient weight to the mitigating factors; remorse, the fact that the rape was transient because he desisted; his immaturity and jealousy over the attention his wife was paying to the child, and his attempts to obtain treatment.

44. (1995) 16 Cr App R (S) 770.

45. (1996) I Cr App R (S) 309.

46. While the parties were still living together, they were talking of separation and were sleeping separately. See also Leon D (1996) 2 Cr App R (S) 342 (four years reduced to three where the parties were living separately in the matrimonial home).

47. The courts have made no distinction between cases of marital rape and other settled relationships.

48. This terminology has been taken from R Raynard et al ‘An analysis of a Guideline Case as applied to the offence of Rape’ (1994) 33 Howard J Criminal Justice 203.

49. (1988) 10 Cr App R (S) 329.

50. (1991) 13 Cr App R (S) 175.

51. This terminology has been taken from R Raynard et al, above n 48.

52. (1992) 14 Cr App R (S) 256.

53. (1992) 14 Cr App R (S) 256 at 260.

54. (1994) 16 Cr App R (S) 151.

55. (1994) 16 Cr App R (S) 151 at 153.

56. Barry Cox (1994) 16 Cr App R (S) 72; see also Workman (1988) 10 Cr App R (S) 329 (no significant advantage ‘now she has shown herself unwilling to have anything more to do with him’).

57. (1994) 15 Cr App R (S) 757.

58. (1993) 15 Cr App R (S) 134.

59. (1998) 2 Cr App R (S) 66.

60. (1966) 2 Cr App R (S) 246.

61. (1966) 2 Cr App R (S) 246 at 247.

62. There are other examples of violation being viewed from the standpoint of the court and assuming it is the victim's standpoint. In Workman (1988) 10 Cr App R (S) 329 the court attached importance to the ‘considerable humiliation’ suffered by the victim by reason of the fact she received assistance in response to her screams when she had no clothes on.

63. For recent reviews of this research, see P Rumney ‘When Rape Isn't Rape: Court of Appeal Sentencing Practice in Cases of Marital Rape’ (1999) 10 OJLS 243 at 254–257; P Mahoney and LM Williams ‘Sexual Assault in Marriage, Prevalence, Consequences and Treatment of Wife Rape’ in J L Jasinski and L M Williams Parfner Violence: a comprehensive review of the 20 years of research (Thousand Oaks: Sage, 1998), pp 113–162.

64. D H Russell Rape in Marriage (Indianapolis: Indiana University Press, 1990).

65. D Finkelhor and K Yllo License to Rape: Sexual Abuse of Wives (New York: Holt, Rinehart and Winston, 1985).

66. Mahoney and Williams, above n 63, pp 113 at 142.

67. (1993) 15 Cr App R (S) 134 at 136.

68. Billam (1986) 8 Crim App R (S) 48 at 50, in which case the starting point is eight years.

69. (1982) 4 Cr App R (S) 8.

70. Above n 48.

71. (1998) 2 Crim App R (S) 73.

72. I have borrowed the plug-socket metaphor from Naffine (1997) above n 9 at p 95 and (1994) above n 12 at p 31.

73. Lacey, above n 15, pp 53–54. For an brief history of marriage in the context of rape see, Naffine, above n 12, pp 18–21.

74. (1996) 2 Cr App R (S) 342.

75. (1982) 4 Cr App R (S) 8.

76. D Finkelhor and K Yllo ‘Forced Sex in Marriage: a preliminary research report’ (1982) 34 Crime and Delinquency 29; Russell, above n 64; K Painter Wife Rape, Marriage and the Law (Manchester: Manchester University Press, 1991).

77. A Jones Women who Kill (New York: Holt, Rinehart and Winston, 1980).

78. P Easteal ‘Survivors of Sexual Assault: An Australian Survey’ (1994) 22 Int J Sociology of Law 329–354.

79. By the Federal Court in Lyttle (1991) 57 A Crim R 398 and the Court of Criminal Appeal of the Northern Territory in Wiren (13 November 1996, unreported, BC 9605435).

80. Stephens (1994) 76 A Crim R 5; Harvey (23 August 1996, unreported, CCA NSW, BC 9603734); R v S (13 September 1991, unreported, SC Tas, 75/1991); Szasz (CCA Vic, 22 November, unreported, 1994 BC 9401327).

81. Eg Southwell J in Szasz (22 November 1994, unreported CCA Vic, BC 9401327); Cummins J in Ramage (15 September 1993, unreported, CCA Vic, BC 930095 1); R v S (13 September 1991, unreported, SC Tas, 75/1991). For a more detailed discussion of these cases see K Warner ‘Sentencing for Rape’ in P Easteal (ed) Balancing the Scales: Rape Law Reform and Australian Culture (Sydney: Federation Press, 1998) p 174.

82. Harris and Grace, above n 4, pp xi, xii, 12.

83. A spouse is a compellable witness by virtue of the Police and Criminal Evidence Act 1984, s 80(3).

84. See also Collier (1992) 13 Cr App R (S) 33 at 36 and Dredge (1998) 1 Cr App R (S) 285 at 287.

85. (1994) 15 Cr App R (S) 114.

86. (1994) 15 Cr App R (S) 134.

87. (1995) 16 Cr App R (S) 388.

88. (1995) 16 Cr App R (S) 388 at 391.

89. (1998) 2 Cr App R (S) 252.

90. (1994) 15 Cr App R (S) 114 at 115.

91. (1998) 2 Cr App R (S) 252 at 254.

92. See Marc W (1998) 1 Cr App R (S) 375 at 377, where Collins J conceded that giving weight to the wife's return amounted to saying the more forgiving the wife the less blameworthy the husband.

93. S Lees Ruling Passions, Sexual Violence, Reputation and the Law (Buckingham: Open University Press, 1997). pp 125–129; S Edwards Sex and Gender in the Legal Process (London: Blackstone Press Ltd, 1996) p 360. The Supreme Court of Canada has recognized and discussed the reasons why many women wish to return or continue violent relationships: Lavallee (1990) 55 CCC (3d) 95, Wilson J at 1 15–126.

94. (1992) 13 Cr App R (S) 33; compare Brown (1993) 14 Cr App R (S) 434, where the court relied on the prior relationship in reducing the sentence but it seems no mitigatory weight was placed on the attempt to withdraw the charges. The case is a good example of a victim withdrawing charges so she can get on with her life. Several months after the incident in which she had been raped and wounded by her former partner (with whom she had a child), she met him by chance and they went to a ‘public house’ together. After that she wrote a letter to the prosecuting authorities in an attempt to withdraw the allegation. She said she wrote the letter ‘in the hope of trying to put the matters…behind her and to start her life afresh’.

95. (1988) 10 Cr App R (S) 13 at IS.

96. Eg Stephens (1994) 76 A Crim R 5.

97. (1991) 12 Cr App R (S) 638.

98. (1991) 12 Cr App R (S) at 640.

99. (1991) 12 Cr App R (S) at 639.

100. (1993) 14 Cr App R (S) 642.

101. (1993) 14 Cr App R (S) 642 at 645.

102. See Lord Taylor in Malcolm (1994) 16 Cr App R (S) 151.

103. In Blurton (7 August 1996, CCA WA, unreported, 7/8/1996, BC 96 03582) this claim was regarded as in his favour because it showed ‘a modicum of good intention’.

104. Michael C (1993) 14 Cr App R (S) 642 at 644.

105. Restorative approaches, if they are to extend to serious crimes, need to be explicit about how the public interest element is to be constructed: see A Ashworth ‘Victims’ Rights, Defendants ‘Rights and Criminal Procedure’ in A Crawford and J Goodey Integrating a Victim Perspective within Criminal Justice (Aldersot: Ashgate, 2000) p 185.

106. A Ashworth, above, n 16, p 312.

107. (1980) 2 Crim LR 3 17.

108. Nunn (1996) Crim LR 210; Roche (1999) Crim LR 339.