Rajpal's Column

11th March 2001

Rape review– legally correct, or politically correct?

By Rajpal Abeynayake

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"Perhaps the accused was not guilty of rape and should be acquitted. Maybe the evidence on a close scrutiny will not support a conviction of rape. These are matters for an appellate court to decide. Yet, even if the accused is acquitted, it should not be for the reasons set out in the judgment of the Court of Appeal."

That's one of the concluding paragraphs of academic Mario Gomez's comment on the Kamal Addaraarachchi rape case ( Law on Rape A Giant Step Back ) published in the Law and Society Trust (LST) Review of January 2001. Even considering that Gomez says he is "not going into the evidence'' led in the case in his comment, the above paragraph is perhaps the best admission made by the commentator that there is "reasonable doubt'' in his mind that the accused was guilty of committing the offence.

Presumably the commentator has read the evidence available. The reasonable doubt would have arisen in the mind of the commentator on consideration of the central evidentiary element in the Addaraarachchi case, which is the element of implied consent. Irrespective of how you cut it, an acquittal in this case basically depends on one pivotal consideration, which is whether there was consent for sexual intercourse on the part of the prosecutrix. For benefit of the readers of this newspaper, the prosecutrix in this case was Inoka Gallage, a young girl who alleged that she was raped by actor Kamal Addaraarachchi, when she went to the actors house in search of employment.) The evidence can be gone through with a fine tooth comb, but, the only real legal issue on which the case turns is whether there was "implied consent'' or not.

On Gomez's argument, " that the duty should be on the party that wishes to engage in sexual intercourse to be clear that the other party is a willing participant,'' and that in this context "implied or tacit consent reflects certain stereotypical notions about women,'' there can be no acquittal ever, for the accused in this case.

Hansen, on the Substantive Law of Rape writes "The kinds of situations that are problematic (in rape) are those where intercourse occurs with no inquiry about consent. If there is no violence, and no complaint by the victim, most observers likely would infer that the female consented. The situations that are problematic are those where there is no violence or force, but the woman claims she did not consent.''

The Kamal Addaraarachchi case, unless there was something glaring the trial and appellate judges missed in the evidence, was just such a "problematic'' case. Says commentator Gomez that implied or tacit consent reflects a view that "although women say "no'' they really mean "yes''. It reflects a view that women are ambiguous about sexual relations and are reluctant to indicate in definite terms their willingness to engage in sexual activity.

It is absurd for the commentator to take this reductionist approach on the complex issue of consent.

Hansen writes: The terrible difficulty is that nonverbal communication about sexual desires with little if any overt enquiry are not uncommon. Consent and non consent may be explicitly communicated, but they are often communicated non verbally and may be ambiguous.

Perhaps the reason the law has always sought "objective" tests of the female's subjective states is to avoid the vagaries of determining what the perpetrator really believed, and making a trial primarily a credibility contest. The traditional rule required evidence of resistance, on the theory that overt resistance should lead any reasonable male to believe that the victim had not consented. This suggests that, in the United States, the law, in practice, if not in fact, adopts a reasonable belief standard.

Succinctly, what Hansen says is that "to avoid a consent no consent debate, it was earlier required to prove that the female resisted. But, now, that's not required, which means that the judges must consider whether a reasonable belief can be entertained whether there was consent for sexual intercourse.''

Therefore, let's get the first point in this rebuttal of Gomez's comment out of the way. It is not as if modern law rejects the idea that consent is often communicated non-verbally, and in an ambiguous manner. As Hansen goes on further to say

lack of consent must be proved "beyond a reasonable doubt." As a serious crime, proof of rape must meet the very highest evidentiary standard. The central legal element, absence of consent, must therefore be supported by very solid evidence. To insist upon a simple ethical principle such as, "if a woman says 'no' and a man proceeds anyway, that is'' rape" is no help, unless we stipulate that all women accusing rape are truthful.

This last comment probably tackles most of Gomez's initial arguments. It avers that so-called "implied consent'' ( the words of the Sri Lankan High Court judge) is, and necessarily has to be taken into account, in the legal determination of the issue of consent in a rape case.

The last line of that comment is also telling. Says Gomez in his comment that "given the trauma of a rape trial, it would require a high degree of motivation for a woman to fabricate and then peruse a charge of rape.'' That's asking court to assume that, "all women accusing rape are truthful.'' It should normally go without saying that such a position is untenable. Going on Gomez's superficial appraisal of the issues, the logical conclusion to his approach should be that "every woman accusing rape should be believed, i.e: that there should be no trial for rape.''

In the case of Morgan (Britain) it was decided that even if the victim does succeed in showing that she was not consenting, the male's subjective belief that she was consenting, is a defense. However even this was reconsidered in cases such as S (1983) and Bashir (1983) where the accused is only guilty of rape if he foresaw a risk that the victim was not consenting and nevertheless continued.

All this shows beyond any reasonable academic doubt that ambiguity in the matter of consent , though a distasteful subject, cannot for practical reasons be wished away in the application of rape law. Gomez takes issue with the appellate judges for "..having regard to the normal conduct and behavioral patterns of women and girls in Sri Lankan society'' in reaching their verdict. He asks "who defines the normal behaviour patterns of girls in society?" Granted, the appellate Judges' choice of words are not the best. But, " social judgments attribute responsibility to her (prosecutrix/female) based on her (common-sensically inferred) contribution to what occurs. This is the important irony of rape law. In the end, rape law defines the mental element, the mens rea for rape, in terms of the social meaning of the woman's conduct rather than the legal meaning of the man's. For the practical reasons just reviewed, this may be unavoidable in many cases where there is little force.'' ( Substantive Law of Rape.) The answer to Gomez's glib question "who defines the normal behaviour patterns etc.,?…." therefore, is "a reasonable person does.'' The same reasonable test, as is for many other determinations in the law.

Rape is not a crime of absolute liability, such as grievous bodily harm, re' which the accused cannot maintain for instance that he "did not believe'' that "the harm he caused would be grievous''.

''Rape is a flagship issue in a long term campaign over the relative power of the genders. State protection of women is, after all, still a form of paternalism'' a writer observed. Melanie Phillips, writing an article "Why Men get Screwed'' in The Spectator, states that in a quest to be politically correct, the British have sought to "lower the defendants chances in a rape case,'' so as to assuage the complaint of women's interests groups that "there aren't enough rape convictions. It's like reducing a shoplifters defenses, because there aren't enough shoplifting convictions''. I do not wish to enter the debate in this way. But, even though this article may not be politically correct in the way Gomez's wants to be, it seeks to be legally correct, which is what is important.

(The writer regrets that reasons of space do not permit him to deal with other issues raised by Gomez, or to publish the appellate court judgment in the case under review.)

- The writer is an Attorney at Law.

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