How Judges make decisions:

·          Intention and state of mind of offender

·          Consequences of the crime

·          Mitigation

·          Guilty plea

·          Remorse

·          Previous "good character"

·          Legislative and other guidelines

• Legal precedents

This part of the website contains information on recent legislation which has impact on survivors of sexual violence. Please contact us as web@truthaboutrape.co.uk if you have any suggestions for additions.

Sexual Offences Act

Unduly Lenient Sentences

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Conference Report on Violence Against Black and Minority Ethnic Women

Sexual Offences Act

The Sexual Offences Bill - the most radical overhaul of sex offences legislation for 50 years - has received Royal Assent.

Click below for:

• A copy of the legislation
• A Five Year Journey by Helen Jones
• Lord of Shame by Jennifer Drew
• Anonymity by a TAR member

Unduly Lenient Sentences

Harriet Harman, Secretary General, wants TAR to refer lenient sentences to her. Unduly Lenient Sentences

In 2002, the Attorney General referred 134 cases to the Court of Appeal.

It decided the sentences in 115 of these were unduly lenient and increased the sentences in 91 cases.

Anonymity

Our members have been constantly dealing with the issue of anonymity since the launch of the campaign. Here is an example of one such response which is due for publication in a local Manchester newspaper:

I am an academic and researcher on rape and the law and I live in Sale. Mr Saul Breeze argues that men accused of rape should be given anonymity, unless convicted. This question was recently investigated by parliament during the passage of the new Sexual Offences Act 2003 which is expected to come into force soon and which will radically update our aged and cranky sex offences law. Parliament considered that it was not in fact possible to give anonymity in the way that Mr Breeze wants. Firstly, no other people charged with crime are given this protection so why should accused sex offenders be singled out in this way? Secondly, such a move would seriously hamper the investigation of multiple rapes and of multiple child abusers (who are often charged with rape under the current law). There are many cases where the publication of a name has led to other victims coming forward. In Sale we saw this a few years ago when Peter Martin was accused of sex offences against very young girls. It emerged gradually that Mr Martin had indeed subjected a number of youngsters to offensive acts of forced sex, at his home in Sale. As a result and in part as a result of the publicity, he was eventually convicted.

The real story about rape is that many women who report that crime to the police are sadly let down by the Criminal Justice System and this is demonstrated amply by the horribly low conviction rate. Less than 7% of reported rapes of a female result in a conviction - and the remaining 93% of women and girls are left wondering how this system can claim to provide justice. Here is a far more serious news story and I look forward to seeing coverage of the effect of this failure on women and girls in our area, together with coverage of the legal reforms now taking place.

If there's going to be anonymity for defendants, it needs to be for all defendants and not just rape defendants.

For the 'official' discussion on anonymity follow this link. Discussion on Anonymity

How do I get a copy of the Sexual Offences Act?

The Internet version of the Act

A print version of the Act is also available (for £10.75) and is published by The Stationery Office Limited as the Sexual Offences Act 2003, ISBN 0 10 544203 8. The print version may be purchased by clicking here. Braille copies of this Act can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.service@tso.co.uk.

The Sexual Offences Act is said to offer a clear, coherent and effective set of laws that will increase protection, enable the appropriate punishment of abusers and ensure the law is fair and non-discriminatory.

The Act also contains new measures to strengthen the monitoring of offenders on the sex offenders' register and a range of new offences and harsher sentences for sexual offences against children and vulnerable people.

It aims to offer stronger offences for sexual violence

· Clarifying the law on consent in regard to rape. A defendant's belief that the victim consented must be both honest and reasonable.

· A new offence of sexual assault by penetration.

· A new offence of causing sexual acts without consent

· Strengthening drug rape offences.

· Rape extended to include penetration of the mouth.

If you have a contribution to make about this piece of legislation please email us. Perhaps your analysis can help clarify an issue about the law or offer a criticism - let us know.

Lord of Shame

During the passage of the Sexual Offences Bill Lord Thomas of Gresford made the statement "the complainaint who may well be lying, as happens in sex cases is granted anonymity etc." Once again the worn-out myth is stated. When will such individuals who are in positions of authority accept that research proves time and again in reality the percentage rate of false accusations of rape made by women is approximately 2% which is the same as regards all other complainants alleging a crime(s) has been committed against them? In other words, few allegations of rape are lies.

Yet again we see how Peers (similarly to others!) believe women are inherent liars and express their deeply embedded beliefs that women are not rational beings, but ruled by their emotions. Men are still perceived as innocent victims, overwhelmed by their male sexual drive.

The Sexual Offences Act thankfully does not include any protection of anonymity for men but we know that this issue will not go away. Press articles will continue to be published that claim a man accused of rape suffers irreparable damage to his reputation and family life. No mention will be made regarding irreparable pyschological and physical damage caused to rape survivors, nor of the suffering and degradation they are forced to undergo when being cross-examined in a court of law. No, apparently the supposed anonymity granted to a rape complainant, means she will not be affected by hostile cross-examination and detailed questioning of her medical history, sexual partners, current and previous life style, character etc.

The Sexual Offences Act marks a new phase of the fight but the fight goes on.

TAR member - Jennifer Drew.

On 25 January 1999 the Government announced that it was commissioning a review of the law relating to sexual offences. I sat on the Home Office Sex Offences Review body and the culmination of that process was the document, Setting the Boundaries (Home Office, 2000). Since that time I have worked closely with the rape crisis movement in lobbying to ensure all the recommendations made in Setting the Boundaries made it into law. The resulting Sexual Offences Act 2003 repeals almost all previous legislation, delivering, in effect, a new criminal code of sexual offences.

The Sexual Offences Act 2003 introduces a considerable number of new offences and criminalises certain types of conduct not previously subjected to the written law. It also substantially redefines many sex crimes, incorporating new terms and language more appropriate to contemporary society.

There are new offences that cover those who actively encourage or incite sexual violations and a newly worded offence of sexual assault replaces indecent assault. A number of new offences deal with sexual activities involving children including the revision of sexual intercourse with a child under 13 as statutory rape and the prohibition of a range of sexual activities conducted with children under 16. Sexual abuse by those in a position of trust is covered.

The crime of incest is replaced by two new offences of familial sexual activity dealing with sexual activity with a child family member and sex with an adult relative. In the case of the provisions relating to children the offences are not just limited to blood relations but acknowledge the looser structure of modern families and extend to adoptive children and other non-blood relatives. The law relating to the sexual exploitation of children and in particular child pornography and the taking of indecent photographs of children is tightened up and new provisions addressing those who cause and encourage child prostitution and trafficking appear in the legislation.

Three new offences are introduced to deal with those who attempt to procure sexual activity by the administration of drugs, or who exercise violence or trespass on premises. Completely new offences including sexual penetration of a corpse, exposure, sexual activity in a public lavatory and voyeurism raise a number of issues about enforcement and prosecution.

It is hoped that the new legislation will bring a fairer balance of justice than currently exists. Fewer complaints about rape get to court, compared with other forms of crime. There is a significant attrition rate, some of which is due to complainants withdrawing their complaints but also a significant number which are due to the actions of the Police and CPS (Harris and Grace, 1999; Kelly, 2000; Myhill and Allen, 2002). There is little point in changing the law if we cannot get victims to report to the police in the first place or if the case is subsequently dropped. Regardless of how good the changed laws are, there remains much more for the criminal justice system to do.

And finally, the Government needs to start investing in rape survivors directly by funding the support a complainant gets from rape crisis centres, Sexual Assault Referral Centres and other support services. This is far more likely to help establish and sustain a successful complaint - to prosecution - and for justice to be achieved. The Sexual Offences Act marks a promising start to the twenty-first century by creating greater clarity and strengthening the law. As the law comes into force in May it should be seen, not as a final destination, but as definitely a step in the right direction.

Helen Jones

Manchester Metropolitan University

Asylum and Immigration (Treatment of Claimants, etc.) Bill

This piece of legislation is currently going through Parliament and has the potential to limit rape survivors asylum appeals.

We provide a link through to an article from the Guardian written by Women Against Rape and also a section of the Harvard report on the debate around the Bill. It seems that some of the Lords have a good understanding of rape whilst others feel it it necessary - and by extension easy - to tell the story of rape to an officious stranger.

Guardian article - Erosion of Asylum rights

Hansard extract

Hansard Record

Lord Avebury 5 Apr 2004

The noble Lord said: Clause 7 deals with a claimant's credibility. That is frequently an issue in asylum claims and it results in many cases being remitted to an adjudicator by the tribunal, as in some of the cases that I witnessed at the tribunal on Friday. Often, the details of a claimant's history are known only to him, as we have said when discussing previous amendments, and the "deciding authorities" have to reach the best judgment they can on the credibility of what he says.

The Government are now proposing that behaviour of certain kinds, some of which has to be a matter of opinion, is to treated as damaging his credibility in general. The clause takes no account of the advice in paragraphs 198 and 199 of the UNHCR handbook on procedures and criteria for determining refugee status. Perhaps I may remind your Lordships of that advice. Paragraph 198 states:

 "A person who, because of his experiences, was in fear of the authorities in his own country, may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case".

 Paragraph 199 states:

"While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case".

 Paragraph 205 requires an examiner to,

"assess the applicant's credibility and evaluate the evidence (if necessary giving the applicant the benefit of the doubt)".

He would no longer be able to do that under Clause 7.

It is a matter of common knowledge that a person who has suffered torture or rape is generally reluctant to discuss his or her experience. Many claimants have what they regard as legitimate reasons for being unwilling or unable to answer questions put to them by the deciding authority. They may, for instance, feel a sense of shame at having had to leave their country rather than stay shoulder to shoulder with comrades who were also the victims of persecution. Or they may believe that something they say could jeopardise the safety of those comrades or their relatives. In fact, the IAA's own guidelines recognise that,

"delays in claiming asylum or revealing full details of an asylum claim, will not necessarily be due to lack of credibility . . . torture, sexual violence and other persecutory treatment produce profound feelings of shame. This 'shame response' is a major obstacle to disclosure. Many victims will never speak of sexual violence, or will remain silent about it for years".  

Subsection (3)(e) fails to recognise this, and obliges the deciding authority to treat failure to give an answer as damaging the claimant's credibility in general, and not just on the particular issue in question. The qualification that the failure must be without reasonable explanation is worthless, because obviously if the answer to the question touches on a sensitive issue, so would the explanation for refusing to answer.

Earl Russell: An applicant from Zaire once received a refusal letter that said:

"The fact that you say that the soldiers entered your house firing wildly seems to refute your claim that they threatened your life, and thereby severely damages your credibility".

Another refusal letter, sent in 2001 to an applicant from the Congo, said:

"You say that you were beaten, stripped naked and left in a cell soaked in urine. The fact that you say that this constitutes torture is so incredible as to destroy the credibility of the whole of the rest of your story".

Credibility is a way by which the interviewer is able to express his ignorance of the world. What he finds incredible is what surprises him. One might cite many more examples of that, and I shall not go on with them; but the Home Office seems totally unable to take on board quite how difficult people find it to tell the story of rape or torture. I do not know how many people there are present in this Chamber who have actually had the task of trying to persuade a rape victim to tell her story to the police. I have had that job three times and have succeeded once—and I have sometimes wondered whether the once when I succeeded was the once when I really failed. It is not an easy thing to do. One at least of those three victims would, I am convinced, have had her mental stability destroyed for life if she had taken my initial advice and gone ahead and told the story.

I have never had the dubious privilege of trying to persuade a victim of torture to tell her story, but one imagines that it may well be rather worse than that. Until the Home Office can take that on board, it is simply not living in the real world. 

Baroness Scotland of Asthal: I can reassure the Committee that the Government live in the real world. I can reassure the noble Earl, Lord Russell, that I live daily in the real world. I disagree with nothing that the noble Earl has said in relation to the dangers that people experience. In such a situation, as in all others, the ability to persuade and encourage people to tell the truth is always helpful because once the truth is told an informed judgment can be made. I understand what the noble Earl says about persuading people who have difficult stories of abuse to disclose them.

A core principle underpinning the Bill is that those making asylum claims should be co-operative and honest in their dealings with the immigration authorities. Only if people are co-operative can the system operate as smoothly and as well as we want. The asylum system that we put in place must aim to achieve credibility with the public and with the genuine refugee.

A key part of delivering that system is to ensure that it deals robustly with those who do not co-operate and who try to play the system for their own benefit and to the detriment of others. Sadly, on too many occasions applicants are not as co-operative and as honest as they might be, failing to provide documents or destroying them, failing to answer questions fully, or failing to apply as soon as they can.