The Times

April 7 2000

Rape law change 'breaches rights'

BY FRANCES GIBB, LEGAL EDITOR
The Times

PROPOSALS to make it harder for men to fend off rape claims by creating a new definition of consent came under fire yesterday, with lawyers saying that it could breach defendants' human rights.

The proposals, now with ministers, would see rape defined as an act of penile penetration to which the victim had not "freely consented". Supporters hope that the change will stop men escaping conviction by saying that they thought that a victim had consented.

However lawyers immediately voiced concerns yesterday that the change would effectively shift the burden of proof, with defendants obliged to show how the victim had "freely consented". Bruce Houlder, QC, a leading criminal barrister and spokesman for the Bar Council, said: "My immediate reaction is that anything which imposes a duty on a defendant to prove or disprove an element of a crime will contravene the Human Rights Act.

They have already tightened the rules to make it harder to introduce a woman's previous sexual experience, which in some cases is relevant to a man's belief that the woman consented."

Mark Haslam, vice-president of the London Criminal Courts Association, said that lawyers would end up arguing over what was meant by "freely" and what evidence was needed to prove it.

Mr Haslam said: "At the end of the day the jury has to decide on the evidence what is in a defendant's mind on the evidence before it. You won't change that by tinkering with phraseology."

The proposal was drawn up by a working party as part of an overhaul of sex laws. Dame Helen Reeves, a member of the group and the chief executive of Victim Support, said it had been "deeply concerned for a long time about the almost impossibility of proving rape under current law".

Copyright 2000, Times Newspapers Ltd.