Is the law a matter of fact or opinion? Today, Brendan O’ Neill followed George Galloway, John Pilger, and Tony Benn to become the latest non-lawyer to offer up his understanding of the law on rape. He’s also the latest to get it wrong, and he probably won’t be the last.
O’Neill’s post appears under the headline “It is Wrong to Say ‘Sex Without Consent is Rape’. This is provocative of course – but it also happens to be true. As with the vast majority of criminal offences in this country, rape is not a crime of strict liability, which would mean the outward circumstances of sexual penetration and the complainant’s lack of consent were enough to establish guilt. Instead, a guilty mind or, as per the Morgan case O’ Neill cites, “intent” is indeed an essential component.
But O’Neill has fatally misunderstood what is meant by the word “intent” in context – despite the fact it is set out in the very Act of Parliament he quotes, the Sexual Offences Act 2003. Rape is made out where the accused “does not reasonable believe” the other person consents. In other words, if the accused truly believed that there was consent, but the court held that belief to be unreasonable (for example because it was based on what the complainant was wearing), the accused would still be found guilty. O’Neill’s statement that “the man must know that there is no consent… must not believe that consent is present, and therefore must know that it is absent” is, then, straightforwardly untrue.
As the CPS indicates in the publicly-available legal guidance that O’Neill appears not to have bothered reading, this was a major and quite deliberate Parliamentary change to the law that existed before 2003, under which an honest belief in consent, however unreasonable, negated the offence. But frankly, we don’t need to go all the way to the CPS for this: it is so settled a legal principle that a first-year law student could probably reel it off in an instant.
That O’Neill made a factual error is forgivable, though disappointing when helpful explanations of what the law really says are so freely available. But what’s so infuriating as to be almost unforgivable is that he has wasted an opportunity to make both a valid point about the importance of a reasonable belief in consent, and a contribution to the vital discussion about what that means. Instead, he has added yet another voice to the pundits’ chorus which evidently feels rape is somehow ineffable or abstract; impossible to define, let alone to prosecute properly.
Ellie Cumbo, full article in the Huffington Post.