Shifting the Spotlight in the Law of Rape: The Responsibilities of Penetration

All is not well with the law on rape. It is rarely reported and even when it is, it is rarely prosecuted. Victims are deterred for a range of reasons, but these include a fear that it will never be possible to prove the rape has occurred and that the trial will be traumatic. Even when the case proceeds to trial, victims perceive that it is they, rather than the perpetrator, who is the one on trial. The past sexual behaviour of the victim,; the clothes she was wearing,; the people she socialised with and the places she visited are all used as tools to claim that in fact the victim consented to the rape. Reforms are needed.

In this book, we explore how changing the definition of rape will help tackle some of these problems. We argue there needs to be a shift in the focus of the rape trial: away from asking whether the victim consented, to focus on whether the defendant. Rather than focusing on the way the victim dresses, behaviour in response to the rape, the focus will be on what the defendant believed justified him engaging in a sexual behaviour.

At the heart of our proposal is the claim that having sex comes with responsibilities. In particular, a responsibility to ensure you have reasonable grounds to believe the other consents. Without that consent, a very serious wrong is being done. The central legal focus should therefore be on whether the defendant had sufficiently good reasons to proceed with having sex.