Applying the Law on Rape

Initially, I asked the participants for each vignette if they thought a crime had been committed in the scenario and, if so, what crime? I then asked if the participants saw the offence as meeting the legal definition of rape in England and Wales, thus gaining an insight into the way the participants understood and applied the law. The legal definition of rape is codified in the Sexual Offences Act 2003. Section 1(1) of the act states:

A person (A) 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.

I asked the participants to assess whether they thought the victim consented to the penetration, and whether they thought the perpetrator reasonably believed that the victim consented. I asked the participants whether they felt the vignettes fulfilled each part of the legal definition of rape; as all three vignettes portrayed the victim and perpetrator being in agreement that penetration occurred, S.1(1)(a) of the act was clearly satisfied.

I asked the participants to assess whether they believed the victim consented to the act or not. For vignette one, all of the participants gave confident and unequivocal assertions that the victim did not consent to the sexual act. This is shown in Male officer 14’s (Sergeant, SOIT, Police Force 2) statement: 

She had no recollection of anything prior to finding his penis in her mouth. He throughout has said she didn’t say anything so I assumed it was all right. Erm, so she couldn’t have consented as she didn’t know and his view of consent is a bit, well, it’s dubious. He seems to think he can keep doing what he wants as long as nobody says no.

There were variable responses to the question of the victim’s consent for the second vignette. All apart from three participants thought that the victim did not consent. However, the majority of those who felt the victim did not consent were not as clear cut or confident as in vignette one. For example Male officer 4 (Detective chief inspector, Police Force 1) stated: 

I know the circumstances are difficult to get through court but nevertheless it’s an allegation of rape that should be taken seriously. Especially in the first instance, they should work on the assumption that the allegation is genuine until it’s proven otherwise.

Three participants were of the opinion that the victim was consenting in the second vignette with scepticism directed at the victim’s claims she did not consent. One example of this sentiment is expressed in Male officer 6’s (Detective inspector, Police Force 2) comments: 

Well very difficult to say, it’s a weak case, she said ‘can I stay in your bed, in your room?’ and got undressed and into his bed. There’s got to be every chance that she’s consented; you would really want to be examining her very closely.

A similar scepticism and suspicion over the victim’s account arose with the participants’ assertions in relation to vignette three as Male officer 6 (Detective inspector, Police Force 2) states:

That’s very difficult to say, I mean, one thing that occurs to me is it takes a few days for her to get round to making her complaint. … again you would really be assessing the people involved, it doesn’t help perhaps that as soon as sex is over he says ‘I need to get home’. Is that

why now she has suddenly decided she didn’t consent, when maybe she did? It’s a tough one.

However, all participants when asked about vignette three asserted that the victim did not consent to the act. As Female officer 10 (Police constable, STO, Police Force 1) explains: 

No, erm, just from the circumstances really I’m a great believer in just because you offer someone a coffee doesn’t mean you want to have sex with them. She did say he was kissing her neck then she said ‘I’m not ready to sleep with him’.

Generally, although with differing levels of confidence, the participants concluded that they thought the victim did not consent in any of the vignettes. Therefore, S.1(1)(b) of the Sexual Offences Act 2003 was met in the participants’ minds. In instances where a participant made an assessment that the case was not an offence of rape the reasoning was that they could not be sure the scenario fulfilled S.1(1)(c) of the act. I asked each participant ‘Did the suspect reasonably believe the victim consented?’ Again, the first vignette was distinctly viewed as completely unreasonable for the perpetrator to believe that the victim was consenting to the penetration in those circumstances. This position is summed up by Female officer 19 (Detective constable, SOIT, Police Force 1), 

No, there was no evidence whatsoever of any consent, he never asked her, she never said anything that we know of. He’s just saying he presumed all the time, I assumed she must have been on a night out, I realised she was attractive he kissed her, she didn’t say anything, why make the assumption? He assumed what he wanted to assume… gagging is a sign she definitely doesn’t want it, he has the audacity to insult her by saying he was no longer interested. I would want to punch him.

For the second vignette, eight participants did not define the scenario as a rape at this point in the legal definition. This is demonstrated by the comments made by Female officer 17 (Detective constable, SOIT, Police Force 2):

Yeah, I kinda do, you’re not really supposed to side with the suspect but, erm, yeah it is difficult, I can see why a young lad in drink would think when a girl that may or not have been flirting with him during the

night and dancing with him … She does say she shrugged him off and moved his hands away but whether that was enough when things move on to actual full penetrative sex, whether that’s enough for him to realise, I don’t know.

Even when vignette two was seen to meet the legal definition of rape, the participants were not as confident and sure in that opinion as they were for vignette one, as Female officer 1 (Police constable, STO, Police Force 5) stated:

Yes, because of the build-up all friends together knowing each other all going out to the club together flirting, he thinks it’s flirting, maybe she didn’t, other people see that’s not flirting. He thinks he has got the come on basically and she turns round and asks if she can stay the night. Ooooh, I’m onto something here. She stays for whatever reason, probably not the same reasons he is thinking of. He’s thinking I’m in here, she is up for it, and he goes for it he uses a condom and everything, very responsible.

For the third vignette, two participants thought it was reasonable for the perpetrator to believe the victim consented. However, the remaining participants were fairly confident that it was not reasonable and defined the situation as rape. Female officer 5 (Detective sergeant, Police Force 1) stated:

No, he was saying she was being coy as he put it, he knew she was trying to brush him off, he’s a man that likes himself and thinks the ladies like him. They like it a bit rough, he’s making excuses for not backing off.

In sum, all of the participants viewed the stranger rape scenario (vignette one) as a rape offence. In comparison only 72% of the participants defined vignette two (campus rape) as a rape offence, with the remaining 28% postulating that the scenario was not an offence at all. The vast majority of the participants, 93%, viewed vignette three (date rape) as a rape offence. The table below summarises the responses given:

Table 4.1: A summary of participants responses to the question of whether they believe the vignette to legally depict a rape offence