The Review of Sex Offences and Rape Law Reform: Another False Dawn?

Abstract

The offence of rape, as it is defined and enforced has been the subject of an ongoing process of evaluation and reform for several decades and across numerous jurisdictions. The latest contribution to this process has been the publication of volumes 1 and 2 of the Home Office consultation document Setting the Boundaries-Reforming the Law on Sex Offences.1 This report results from the deliberations of the Review of Sex Offences which was established to provide recommendations 'for clear and coherent offences that protect individuals, especially children and the most vulnerable, from abuse and exploitation, and enable abusers to be appropriately punished'.2 Yet it has to be seriously doubted whether the Review's recommendations on the law of rape will significantly address any of these objectives. Indeed, by focusing exclusively upon the revision of the legal definition of rape, the Review was unable to examine what is arguably the most important issue facing rape law today, that is, how that legal definition of rape is interpreted and enforced by the criminal justice system. As with previous law reform efforts that have focused upon issues of 'black-letter' law,3 the Review's narrow focus only serves to obscure the practices of criminal justice agencies that hinder the effective enforcement of the law in this area. As such, the implicit impression given by the Review's remit and recommendations is that such problems can be resolved by limited revision of the substantive law.4 The purpose of this article is to examine the Review of Sex Offence's recommendations regarding the actus reus of rape, in particular, its proposals concerning the definition of sexual intercourse and consent. In addition, this article will consider whether the Review's recommendations are likely to lead to any significant improvement in the actual enforcement of rape law. It will also explain why successful rape law reform will only come about when the reform process