Term 2, Week 1: Marital rape

One of the interesting things about studying victims of crime is the extent to which things have changed over the last few decades - generally for the better. Another interesting thing is the extent to which things haven't changed, and the old problems remain.

Take the role of victims in court, for instance. Victims have a much higher profile in criminal trials than they used to: it's routine for victims to be asked to give a statement about the impact of the crime, which will be read by the judge. Provisions for vulnerable witnesses, in juvenile and adult trials, is much better than it used to be. But the trial itself is a contest between the defence and the prosecution, adjudicated by the judge, and the victim has no automatic role except as a witness to the crime. Victims are not at the centre of criminal trials; if anything, they're on the sidelines.

Something similar applies to the way that rape cases are handled. It used to be understood in English law that a married man could not be found guilty of raping his wife; the underlying assumption is that it's normal for a long-term relationship to be based on a man having power over a woman, and the woman can't have anything to complain about if the power is abused. Similarly, it used to be understood that a rape defendant who had an "honest belief" that the victim had consented should be found not guilty: he might be mistaken, but he shouldn't be found guilty of rape unless he consciously and deliberately set out to commit rape. On this basis, if the victim repeatedly said No but then submitted out of fear of violence, the defendant would not be a rapist. The underlying assumption here is, again, that sexual relations are all about power: it's normal for a man to be aggressive and forceful, and to get a woman's consent under those conditions. Put these together and you have something very like the dear old "ideal victim" scenario: real rape is committed by a stranger and with malice aforethought.

Both of these assumptions are history: married men who rape their wives can be found guilty, and instead of 'honest belief' the current law on rape has the much more demanding test of 'reasonable belief' - i.e. the defendant has to show that he had good reason to believe the victim had consented, such as having actually asked her. But once again, I think, it's a case of three steps forward and two steps back. If rape takes place within a long-term relationship, it's that much less likely to go to trial; the victim herself may be less likely to recognise it as rape in the first place. The same is true of rape that takes place in a sexually-charged situation: if the defendant can claim that the victim was willing earlier on, that he got carried away, that it was just rough sex, is it real rape? The law says that all these things should be ignored: the question is whether he had a 'reasonable belief' in consent. As the low prosecution and conviction rate for rape shows, juries still tend to take excuses like these seriously; this reflects the assumption that it's normal for males to be aggressive and sexually dominant.

I'm aware that this is a difficult and sensitive subject; thanks for your patience. Next week we get on to another difficult and sensitive subject, domestic violence. (After that we'll do the courts and stuff.)