The failure of the law to address the problem of rape was highlighted by the Italian Court of Appeal last week. It overturned the conviction of a 45-year-old driving instructor found guilty of raping an 18-year- old pupil on the grounds that she could not have been raped as she was wearing jeans. The defendant had allegedly forced her to stop in a deserted spot, pulled her out of the car, thrown her to the ground, slapped her, then raped her.
To be a credible witness in a rape trial, a woman has always had to prove she is not the type of woman who is seen as “provoking” rape. In this case, the judges did not present the usual argument that her clothes were provocative, but ruled on the absurd lines that her jeans could not have been removed without her co-operation. They dismissed the explanation for her lack of resistance, arguing: “It is illogical to state that a young woman can passively undergo rape, which is a grievous affront to her person, for fear of suffering other hypothetical and certainly less grievous affronts.”
Criminal justice systems worldwide have failed adequately to address the problem of rape. The problem is that the burden of proof rests on the credibility of the witness and the criteria used to test this is pernicious: in England, it can include not only questions regarding past sexual history but also details of her lifestyle – her lingerie, her make-up, even her menstrual flow.
In one case at the Old Bailey in 1993, a 24- year-old student reported how she had been raped twice on her way home from a nightclub by a mini-cab driver. She managed to run away after the rape, leaving her coat behind. No contraception was used and the complainant had contracted a sexually transmitted disease.
In the trial, she was cross-examined about whether her dress and shoes could be described as “dressy”, her jacket as “flimsy”. She was then asked to describe the material of her jacket and whether or not it was transparent. On being asked to take it in her hands, she burst out: “You are going to ask me to put it on, aren’t you?”
This did not dissuade the defence counsel from persisting in asking whether or not the material was transparent and whether or not her knickers could be seen through it. Undeterred, he then insinuated that she had not been wearing knickers or tights which she strongly denied. In his summing up, the judge, without explaining why, said the jury had to decide whether she was wearing a G-string or pair of flimsy panties. The defendant was acquitted.
These views are not strangers to our shores. In South African Law Of Evidence, Lord Hoffman declared: “Experience has shown that it is very dangerous to rely upon the uncorroborated evidence of the [rape] victim complainant.”
In 1994, a South African judge overturned seven-year sentences for two rapists. The 19-year-old victim – a virgin – knew her attackers, who said they had a gun and would shoot her unless she submitted. Judge Pierre Olivier reduced their sentences on appeal because, he said, the rape was based not on violence but on the need for sexual gratification, the victim had suffered no serious injury or psychological harm and the fact that she knew one of the men well meant she was not raped “by total strangers” and must have known that they were lying when they said they had a gun. It later emerged that one of her attackers was awaiting trial for another rape.
In Australia, Judge John Brand said those who had been in the law as long as he had knew that with women, no often subsequently means yes. And Justice Derek Bollen found a husband could use “rougher than usual handling” if his wife refused sex.
In Russia, despite high-profile trials of a handful of serial rapists, attitudes are mired in the patriarchal conservatism of the Soviet era and only 2% to 5% of women raped are thought to report it. Police commonly reject complaints, accuse the victim of provoking the attack and refuse to refer her to a doctor to gather evidence.
Rape is difficult to prove in Chile because the penal code for sexual crimes from 1874 describes it as a “crime against the honour of families and good customs”.
“A woman has to show wounds, prove she fought tooth and nail,” says Veronica Matus of feminist think-tank La Morada. “We interviewed one judge who said he did not believe in such a thing as rape because women provoke men.”
In 1996, a judge examining the rape of a 14- year-old concluded that her torn hymen was “not necessarily synonymous with an active sexual life but could have been provoked by rough exercise or her own sexual manipulation”.
Arguments over rape are rarely heard in Asian countries for the simple reason that few cases get to court. Power and privilege both create the conditions for rape and prevent it being exposed. In Malaysia, outspoken opposition MP Lim Guan Eng complained when a senior minister escaped prosecution for statutory rape of a schoolgirl. Lim is now in jail for “malicious publishing of false news”.
In the United States, crime rates are plunging in most big cities but one class of violent offence is failing to respond – rape. Much attention has been given to date- rape drugs, but alcohol is said to be linked to more than 70% of sexual assaults. Last year, psychologist Nathalie Bartle cited in a book a survey of 750 girls aged 12 to 19 which found that 90% believed drink was a major factor leading to sex. The name of the book? Venus In Blue Jeans.
Additional reporting by Christopher Zinn, James Meek, Elizabeth Love, Chris McGreal, John Gittings and Michael Ellison