With a view to furthering this study on police investigations and victim support in relation to rape crimes perpetrated against women via a comparative study between the activities of the United Kingdom (UK) police force and the United Arab Emirates (UAE), this paper will provide a discussion of the police procedure involved with dealing with the investigation of rape cases in England and Wales. On this basis, it is necessary to consider the strong and weak points of this procedure with a view to then comparing it with the position in the UAE. This essay will also seek to discuss policing and the prosecution process through the decisions of the judiciary through the courts in relation to the crime of rape when it is perpetrated against women in England and Wales along with victim support. Finally, this paper will conclude with a summary of the key points derived from this discussion in relation to the police procedure involved with dealing with the investigation of rape cases in England and Wales.
In the UK around 85,000 women are raped annually [1] but matters have not been helped because attitudes to rape victims within society have proved somewhat detrimental to these women when they seek to make complaints. [2] Nevertheless, where a rape arises there is a police procedure to be followed. To this effect nearly all police investigations begin with the taking of forensic evidence collection to prove sexual intercourse took place and as evidence in prosecution along with providing a profile of the attacker where a stranger is involved. [3] The police will also take as detailed a statement as is possible regardless of as to how embarrassing it may prove to be to assist the prosecution and should be made as soon as possible. It is also necessary for a victim to be prepared to stay at the police Rape Suite or station for several hours and it is also possible to ask for a woman police officer to deal with a case since victims will be asked intimate and often embarrassing questions because it is unnecessary to talk to any other officer other than the one in charge of the particular case. [4] A medical forensic examination will also be carried out by a police surgeon solely for forensic evidence purposes involving both an internal and external examination to collect evidence and photographs may be taken of injuries and this can also be done by request by a female doctor. [5] The police may also wish to interview a victim again so they can phone or write to arrange a meeting at the police station or somewhere else where a home visit is inconvenient - although many rape crisis centres have an Advocacy Service to provide support and give information about the criminal justice process and accompany a victim to a Sexual Assault Referral Centre (SARC) and to court and ensure they understand what is happening. [6]
As for the matter of the offence of rape itself it is an offence created by section 1 of the Sexual Offences Act (SOA) 2003 (to redefine the legal position under the Sexual Offences Act (SOA) 1956 as amended in 1976 and 1994) that someone "(1)…commits an offence if - (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents". However, as to "(2) Whether a belief is reasonable is to be determined having regard to all the circumstances" and that "(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life". [7] Therefore, section 1 of the SOA 2003 essentially codify DPP v. Morgan. [8] Conversely, however, it was held in R v. R [9] 'unlawful' under section 2(1) of the CAA 1968 did not exclude 'marital rape' because, regardless of whether the man and the woman involved with an event tantamount to rape were strangers, friends, family or in a formal or informal relationship would still amount to a potential criminal offence.
To determine whether a criminal offence of rape has been committed it is for the judiciary to determine whether the defendant had fulfilled the requisite mens rea and actus reus. Formerly, it was recognised in DPP v. Morgan [10] rape was redefined under section 1(1) of the Sexual Offences (Amendment) Act 1976 to include those cases where the defendant was reckless regarding whether the victim consents. As a result, the mens rea became based upon determining whether the defendant was reckless in relation to whether the defendant consented - although this test was quite subjective so a defendant could not be said to not care less about something unless they knew there was a risk involved and still carried on. [11] On this basis, it remained the case the defendant's unreasonable beliefs the victim was consenting, if believed by the jury, would lead to an acquittal. Therefore, it would seem there was little categorical evidence the defences derived from DPP v. Morgan [12] were successfully run so jurors were not readily believing defendants' spurious claims.
Nevertheless, since the plea was easy to run and difficult to disprove, it sent an undesirable message out in relation to the crime of rape derived from the common law court decision in DPP v. Morgan [13] - i.e. it is acceptable to take unreasonable risks as to your partner's consent to sexual conduct. [14] Therefore, the law under the SOA 2003 was one of its most significant effects as it reversed the DPP v. Morgan [15] so a genuine but unreasonable belief in consent will be sufficient for proving the offences recognised under sections 1-4. [16] To this end, the mens rea has been recognised by the common law courts as being founded upon the fact the defendant does not believe the alleged victim consents and whether a belief is reasonable is to be determined in a given case including any steps the defendant has taken to determine whether the alleged victim consented to sexual intercourse. [17] But, when determining whether the actus reus is present, domestic law in the UK now includes non-consensual fellatio regarding rape whilst section 2 of the SOA 2003 also provides for the recognition of a new offence of sexual penetration by objects other than the penis. [18] With this in mind, this recognition of the increased breadth of the offence of rape under the SOA 2003 has devalued what many have chosen to refer to as 'real' rape (i.e. vaginal penetration with the penis). [19]
At the same time, however, any indictments put forward should specify the orifice penetrated - although the offence can be committed as a principal offender only by a man. In addition, under the SOA 1956 it was held sexual intercourse was a continuing act and if the alleged victim withdrew their consent during the act of intercourse, the defendant would still be considered to have committed the actus reus to be necessary for rape under domestic law. [20] But rape is now defined in terms of 'penetration' rather than 'sexual intercourse' and section 79(2) of the SOA 2003 provides penetration is a continuing act and, whilst section 44 of the SOA 1956 (now repealed) provided it was not necessary to prove intercourse's completion, there is now no such provision under the SOA 2003. However, the most significant element of rape remains focussed upon the absence of consent [21] because without that, penile penetration is not merely not criminal, penile penetration is an explicit expression of intimacy. Therefore, sections 74-76 of the SOA 2003 provides a clear definition of consent that creates three separate routes through which the prosecution can establish - (i) section 76 regarding conclusive (irrebuttable) presumptions; [22] (ii) section 75 rebuttable presumptions; [23] and (iii) section 74 regarding the general definition of consent. [24]
Then, with regard to the matter of support services, the first Rape Crisis Centre was established independently of the government and the criminal justice system in 1973 to support rape victims. [25] On this basis, the creation of the first Rape Crisis Centre in the UK was emblematic of the fact "The 1970s marked the beginning of the rape reform movement" when feminists looked "to secure the passage of numerous . . . laws that broadened the definition of rape and altered rape trial procedures". [26] This meant the "credibility of rape allegations had been weighed previously against the time that elapsed between the crime and its report, by whether the story could be corroborated, by the extent of personal resistance to the attack, and by a review of the victim's prior sexual encounters". [27] Therefore, Rape Crisis Centres are front-line services providing crucial support and independent advocacy for all women and girls who have experienced sexual violence through specialist support, advocacy, counselling and information to women and girls, free of charge and in the strictest confidence, in a safe and non-threatening environment. [28] On this basis, Rape Crisis (England & Wales) wants all women and girls to be free from sexual violence by better promoting their needs and improve the available services to them [29] although the problem is these groups in the UK vary somewhat in their shape and size for the purpose of providing support. [30]
However, apart from one-year project funding from the Victims Fund, there is a distinct lack of money forthcoming from the government since there has been little or no mention of future sustainable funding for rape crisis centres in the government's strategy tackling violence against women and girls. [31] Therefore, it was only after more than a year of fierce lobbying from women's organisations and Rape Crisis (England & Wales) that government policy makers announced a £1.6m special emergency fund to help sexual violence services teetering on the brink of closure. [32] As a result, Rape Crisis (England & Wales) welcomed the 'Violence Against Women & Girls Strategy' that was launched with its commitment to working across government departments. [33] This is because the strategy guaranteed tackling violence against women is a clear priority within health, schools and the criminal justice system. Therefore, the government consultation encouraged women throughout the UK to discuss issues about violence after thousands took part. [34] However, whilst Rape Crisis (England & Wales) welcomed the strategy they were disappointed that it was not sufficient because of the lack of mandatory training on sexual violence issues for all police force areas and for social workers along with the promised future sustainable funding for Rape Crisis. [35] In addition, Rape Crisis (England & Wales) were concerned with the fact many of the Actions and Recommendations highlighted will lead to an increase in referrals to Rape Crisis (England & Wales) Centres so where there is a lack of adequate resources these centres will struggle. [36]
To conclude, in the UK law and practice undertaken by both the police and support services has developed substantially to provide greater protection for women's rights and the recognition of their needs in cases of rape and other sexual offences as and where they arise. Court processes have changed somewhat under the SOA 2003 so there is now greater regulation in place despite the fact social attitudes have proved morally questionable. This is because the law now provides greater certainty and consistency regarding the circumstances when a defendant will have committed the offence of rape against a female complainant. However, whilst both government and non-government organisations have looked to provide greater support for rape victims, there are still some significant problems. This is because although Rape Crisis (England & Wales) provide an array of services for rape victims, the problem is there is still a significant funding deficit not being resolved whilst the law is constantly moving on to enhance the position of complainants so already underfunded organisations are being place under ever greater pressure.
