A Victorian man denied his conjugal rights by his Victorian wife finally snaps and takes possession of his property in a manner the law tells him he is perfectly entitled to. From her perspective, it is not a marriage of love, but one of convenience; he, on the other hand, loves her without owning the necessary emotional language to express it. When she frustrates him beyond his tolerance threshold by taking a lover, fevered jealousy and passion overcome him and he rapes her.
A pivotal scene in the 1967 BBC dramatisation of John Galsworthy’s ‘The Forsyte Saga’ as the character of Soames forcibly took what his wife Irene refused to give him as part of her wifely duties helped make the epic 26-part series true water-cooler television before water-coolers were even commonplace workplace items. The actual scene itself is brutal without being explicit; Soames rips away Irene’s blouse and the camera cuts to a toothless old hag turning a barrel-organ in the street below during the act; when we return to the Forsyte bedchamber, the camera pans from a weeping Irene to a stunned Soames, horrified at what he has been reduced to. More interestingly from a distance of almost fifty years, the nation was divided between those who sympathised with the predicament of Soames and those who sympathised with the predicament of Irene. A vox-pops survey of the Great British public screened as a ‘Late Night Line-Up’ debate on the contentious scene saw a remarkable degree of support for Soames from both sexes, with their argument being that Irene should have done her duty all along and she would have been spared the rape. It’s hard to imagine any support for this opinion in 2015.
Marital rape was not recognised as an offence in English law until 1991 – more than a full century after the fictional sexual assault by Soames on Irene was supposed to have taken place. Rape was only given its first statutory definition in England and Wales as recent as 1976, having previously been classified as an offence of felony under common law; but rape within marriage remained exempt from criminal charges for another fifteen years. Perhaps the final lingering element of an age when a husband possessed his spouse absolutely, the belated removal of this exemption was part of a series of changes to the sexual offence laws that followed.
A notorious BBC ‘fly on the wall’ documentary on the police in the early 1980s included a sequence in which a woman alleging she had been raped was grilled by a couple of ‘Sweeney’-like detectives whose responses to her account were seen from her viewpoint. They came across as intimidating, unsympathetic bullies and the impact on the perception of the public as to how the police treated victims of sexual crimes was seismic. At the time, men convicted of rape could still escape a prison sentence and instead receive a fine. Until 1994, rape was legally defined as non-consensual vaginal intercourse; sodomy was covered by another law. Changes in the law to include anal as well as vaginal penetration also saw the term ‘male-rape’ included in the new definition, to replace the antiquated offence of buggery. Fast forward another decade and oral penetration was added to the list of rape definitions.
Rape itself had long been regarded as sexual assault, though other classifications of sexual assault were not regarded as rape. There was a clear legal distinction between an offence such as groping and forcible vaginal or anal intercourse. By the dawn of the twenty-first century, however, the law appeared to be heading towards a full-scale redefinition so that all crimes of sexual assault could fall under the umbrella of rape. Germaine Greer once argued that rape should not be regarded as sexual assault as she saw it as more an act of physical violence designed to dehumanise one’s opponent, something that had little to do with the sexual act. The fact that one of the first weapons of war employed by an invading army since time immemorial has been the systematic rape of the conquered would appear to validate her argument. It puts the subjugated firmly in their place, something that seems a more plausible explanation for this perennial military movement than the ridiculous image of a thousand randy soldiers seeking to get their end away before actually ensuring the enemy has been crushed.
For a woman – or man in male-rape cases – to stand up in court and confront the accused has never been something that could be approached lightly. To guarantee their client walks away a free man, a defence barrister will naturally stop at nothing to paint the complainant in the worst possible light to the jury; the onus is on the defence not to merely portray the defendant as the injured party, but to completely trash the credibility of the accuser. This has always been an accepted aspect of the process and can understandably be a traumatic experience for the accuser almost on a par with the original alleged offence itself. In recent years, however, the legal equilibrium between complainant and defendant has been gradually tilted in favour of the former, with the introduction of witnesses giving evidence via video links and from behind screens, innovations designed with vulnerable children in mind, not grown men or women. Does this feel like a fair trial from the point of view of the defendant? What if he were allowed to adopt such measures in order to be spared the sight of the prosecution barrister ripping him to shreds as the eyes of the gathered court observed this assault? Hardly likely, but surely if one side can be granted this privilege, then the other should be as well.
This week, the pygmy Deirdre Barlow of the legal profession, Director of Public Prosecutions Alison Saunders, announced that proposals were underway so that ‘No means No’ in a rape case was no longer a feasible concept. In future, men will have to prove a woman gave her consent before they engaged in any form of sexual contact with her.
When a defendant argues a complainant did give her consent, what else can he possibly do to prove she did other than state this as fact? Unless he had a small tape-recorder or spycam on his person when she agreed to spread her legs, I don’t see how he can do more than give his word as proof. It is up to the prosecution to cast doubt upon his word, not the absence of physical evidence that he is telling the truth. Must a man now produce a form that his potential ‘victim’ has to sign before they jump into bed? Must she state she is not under the influence of alcohol, thus guaranteeing her judgement was not impaired at the moment she dropped her knickers? How many of us, I wonder, are here now because our mothers were up for it after having downed a few too many Babychams and our fathers thought all their Christmases had come at once? Quite a few, I should imagine, especially those of us conceived before the marital knot was tied.
Of course rape is bloody horrible, a repugnant act of physical violation that has psychological repercussions for years, and those genuinely guilty of it deserve everything the law is equipped to throw at them. Samuel Johnson’s dictionary defined rape as ‘Violent defloration of chastity’, but is goosing a backside the violent defloration of chastity? Is groping a breast the violent defloration of chastity? Both can be regarded as unpleasant acts of sexual assault if the recipient of the goose and the grope (sorry, sounds like a Georgian inn) didn’t desire either. But neither is on the same level as forcibly penetrating a vagina or an anus. And the only way anyone accused of any of these offences can persuade everyone not present at the time of the alleged offence that they committed no offence is to stand in a court of law and face their accuser without an advantage being given to either side. That is what justice is supposed to be, isn’t it?