Since 1960, there has been research by feminists into the area of criminal law, and this has produced many criticism of law in this area. Feminist theory thus offers a valuable epistemological critique and metanarrative on criminal law and criminology. It ususally focuses on woman’s experience. It centres on male “physical, sexual and psychological violence” against women and often focuses on rape. Feminist theory also extends to critical analysis of general concepts and principles on which criminal law is based upon i.e. ” the doctrine of mens rea”.
There are many feminist who have criticised the notion of judicial impartiality. Still today the principle of applying the same rules to males and females is viewed as a question of justice and equality. The liberal idea of justice suggest that it is unfair to apply different rules to different classes of people. The problem for feminist critics is that it doesnot lead to fairness. In reality the difference between a woman’s options and that of a man’s makes the operation of legal principles completely unfair and they illustrate this through examples of rape.
The main criticism of criminal law for feminists lies in the disparity between low levels of prosecution of male perpetrators of violence and the treatment of women who are victims. It is clear that woman are not offered sufficient and proper protection from violent partners, and often refuse to undertake into any sort of legal proceedings for fear of reprise from perpetrator. For feminists the main criticisms regarding criminal law are those in relation to rape and domestic violence, two areas of the law which are often to be linked to one another.
FEMINIST VIEWS OF RAPE
The law on rape is one of the most contentious issues for feminist legal theories and many feminist argue that gender bias is both open and hidden within this area of criminal law. Much of the criticism made by the feminist generally focuses upon rape, cross examination, rape myths, the use of sexual history evidence in court and so on.
Feminist such as Professor Sue Lees argue that.”the law should promote ‘communicative’ sex and should penalise the ‘non-communicative’ sex. Violence doesnot assist in distinguishing between an act of rape and sexual intercource. This stereotyping of male and female sexual behaviour also extends to women. Historically during a rape case, the defence lawyers would question the victim as to her sexual history and uses that as an evidence and this trial or case would become a question of the woman’s credibility over that of the accused guilt. Thus, this is an issue of that feminists legal theorists have criticised heavily.
In the feminist critical writings on the law on rape, the central problems was that of consent in relation to the men rea of the crime. The legal defination of rape states that the act must involve sexual intercourse where one of the parties is withholding consent.
The actus reus of rape originally defined within the Sexual Offences Act 1956 was ‘unlawful sexual intercourse with a woman’. The 1976 amendment of the act was incorporated as an extenuation to this definition, with the addition of the term ‘without her consent’, however “the 1976 act made no attempt to set out what was meant by the phrase ‘without her consent”
Consent is a question of the victim’s state of mind at the time of the act. There was a case in 1982 where two women were terrorised into submission, where it was ruled that consent was no defence to rape. This was a clarification of the law that meant in effect that it was actual consent under duress of threats that was no defence, that submission did not imply consent and that the prosecution did not have to prove that the victim physically resisted. Thus, this decision raises questions over whether consent is an issue which the jury should be left to decide on a case by case basis or whether the law should clarify the circumstances in which consent would automatically be present or absent and perhaps create a statutory definition of consent, ideas which feminist legal theorists have been campaigning for for some time.
Another problem with consent that is highlighted by feminist legal theorists is that since rape is a crime it is commited on a indivisual ; it becomes difficult to prove the consent beacause it’s only the words of the victim against the accused therefore making it difficult to validate either person’s statement. The issue of consent in relation to rape was established for the first time within statute in 1976 by virtue of the sexual offences amendment act 1976, although its presence within common law can be dated back to 1845. The authority of Camplin established that although no force was used it was clear that the act of intercourse was against the victim’s will and that she could not have consented to it.
It seems that the law regarding the rape, there is a clear absense of the defination of consent which reffers to the key element to offence. and this in turn has received much criticism from feminist legal theorists.
CONSENT: MARTIAL RAPE
The Sexual Offences Act 1956, stated that rape was ‘unlawful’ sexual intercourse. The case related to it was R.v R. A husband could not be convicted of raping his wife as he had marital immunity in the words of Sir Matthew Hale 1736. Following R. v R and the removal of the word “unlawful” from the definition of rape it is clear that a husband may be prosecuted for raping his wife, however this case was heard in 1992 and it has often been the subject of criticism by feminist legal theorists, who question why such an immunity against a rape charge was still in use at a time when very few people could see any reason to support this clause.
As a result of over 100 years of feminist campaigning on relation to the law’s gender bias, when the word ‘unlawful’ was removed from the Sexual Offences Act 1956as amended 1976 by virtue of the criminal justice and Public Order Act(2004:06).
It is very clear that there have been many criticisms of the legal defination of rape and the issues which arises from it over the years. Violence against woman is the big problem around the world. As the findings of the Fawcett Society Commission, concluded that even where a victim of domestic violence is prepared to take action and co-operate in a prosecution, often the victim later refuses to provide evidence against the violent partner. As a result of the incorporation of the Sexual Offences Act 2003 it is evident that The Home Office rape seminar and the Review’s External reference group agreed that the Morgan principle should change the mens rea element of rape has now been replaced with ‘reasonable’ belief instead or ‘honest mistaken belief’. The White Paper which proceeded the act stated that reasonable belief will be judged against the standard of an objective third party and in accordance to section 2 of the act. Thus, feminist criticism of criminal law should be changed for woman or feminist.
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Author Details: Nishita Nayak (1st year student at ICFAI University, Dehradun)
The views of the author are personal only.