With 1 in 3 women currently in university admitting to being sexually abused and over 79,000 cases of sexual assault being recorded in 2016/17; surely we should have a system in place to adequately protect them? I for one, held the belief that if I were ever unfortunate enough to require legal assistance following sexual abuse, I would be supported regardless of the situation or circumstance. However, I was shocked to find the inadequacies surrounding the Sexual Offences Act 2003; leaving gaps where conservative attitudes towards alcohol consumption and gender identity can fester. The Sexual Offences Act contains a number of inadequacies and it often appears to disregard common sense, such as not automatically assuming rape in cases where the victim is asleep. (Yes, I realise how crazy that sounds.) Additionally, whilst the UK prides itself on its equality and protection of all social minorities, this cannot be considered the case, as the Sexual Offences Act does not protect all women, most notably, members of our transgender community.
A recent study by Finch and Munro was used to greater understand jury attitudes towards victims of sexual abuse who were intoxicated at the time of the attack. The test jurors were given a number of situations where a woman had become intoxicated and raped, with scenarios ranging from the defendant placing a drug in the drink, to increasing the alcohol content without the woman’s consent. They were then asked whose side they would fall on if they had to determine criminal liability at trial. I would have liked to believe that attitudes towards victims being blamed were starting to change (with movements such as #MeToo becoming more prominent in the social conscience). However, according to their findings, changes to the legislation have done little to alter conservative attitudes. Many of the test jurors, both male and female, classed the female victim as being partly or wholly to blame for her rape following a night of drinking. This even extended to cases involving involuntary intoxication, where women had their drinks increased in strength without their knowledge or consent. It is interesting, however, that all jurors adamantly criticised the defendant when he chose to spike the woman’s drink with a drug, as one juror put it, ‘obviously the drug changes everything’ (B6(F)). There is a commonly held myth that potential rapists are easy to spot as they attempt to put rohypnol in their victims’ drink, but this is simply no longer a common occurrence. Unfortunately, getting a woman drunk is now a lot easier (and apparently more socially acceptable) means of getting her into bed. Therefore, whilst it would be unnecessary and wholly unreasonable to regard any form of sexual relations as rape simply because the woman is intoxicated, perhaps it is time to look further into how we can better educate ourselves on the myths surrounding sexual assault and rape culture in order to ensure that attitudes such as these do not manifest as bias in the courtroom.
Under s.76 of the Sexual Offences Act there are two types of presumptions; evidential and conclusive. As the names suggest, those that fall under the category of evidential (for example, if the victim is intoxicated) are able to be rebutted by the defendant, whilst those that are proven to be conclusive cannot be rebutted, with no exceptions. Whilst all this appears to align itself with natural common sense, application of s.76 is not always so logical. Namely, the idea that a defendant has the capacity to rebut a claim of non-consent to sexual activity if the victim was asleep or unconscious during the time of sexual intercourse (thus, falling into the evidential presumptions category). The case of R v Lartner is a stark example of why many women choose not to report incidents of rape. Not only do victims have the horror of waking up to find someone on top of them but they then have to relive the entire experience multiple times at police interviews and then again in open court. Some women even suggest that the trial is more degrading and painful than the event itself, as cross examination leaves open the opportunity for aggressive victim blaming. In a recent Northern Ireland case, due to the victim being unconscious at the time, it was possible for the defence to use the victims own underwear, worn at the time of the attack, as evidence that she did wish to engage in intercourse. However, the most concerning case involving intoxicated victims that I came across was that of R v Bree. In this case, despite the victim throwing up numerous times and falling unconscious, it was found that the defendant’s choice to engage in sexual relations with her was not rape.
It should be noted that attitudes towards change are not wholly supported. There are those that would cry ‘witch hunt’ at the idea of further protecting women. They argue that the movement of this criterion to a conclusive presumption would result in men abstaining from sex in order to avoid rape allegations and potential rape charges. However, I would argue that this metaphorical line between consent and non-consent is not as blurred as some would wish us to believe. Surely, it is undeniable that there is a stark difference between being ‘drunk’ and being ‘unconscious.’ As with many aspects of law, we should look to the reasonable person test – if a woman is in a physical state where no reasonable person could believe that she is in a fit frame of mind to consent, then any sexual relations following this should be unequivocally classed as rape.
Finally, what is arguably the most important question coming into a new era of visibility for the transgender community is whether the Sexual Offences Act is truly fit for purpose. We must ask ourselves whether it does enough to assist all women, regardless of the gender that they were assigned at birth. Rather distressingly, the SOA holds an outright bias against the transgender community, as seen in s.76(b); where a person may be concluded a rapist on the grounds that they have convinced someone to engage in sexual intercourse as a result of an impersonation.
For the sake of balance, it is important to note that there are some common-sense justifications for this subsection. There has to be a line somewhere and it would seem unfair for someone to be labelled a rapist for simply impersonating a celebrity. However, what is most concerning is that a defendant will be conclusively presumed to have committed rape on the grounds that they have deceived as to their gender – in other words, they have not disclosed that they were transgender. We as a generation have experienced the push for greater acceptance of all people, regardless of their identity, and yet the SOA continues to perpetuate injustice.
However, of potentially greater significance, it is uniquely offensive to belittle someone’s expression of who they truly are as mere ‘impersonation.’ The language used implies that gender expression is almost akin to a façade, concocted to convince someone to have sexual intercourse. This clearly demonstrates a lack of understanding of the transgender community and is simply at odds with social conscience in the 21st century. Every person within the UK is given the right to protection of their private life (under Article 8 of the Human Rights Act 1998). Yet, this appears to be at abject odds with the SOA, which chooses to criminalise those who do not wish to share this personal element about themselves. I see no correlation when a person such as McNallyfinds themselves on the Sex Offenders Register for life for simply choosing to keep an aspect of their identity private and yet those that do not wish to disclose their age, religion or marital status (objectively aspects that a victim may feel just as strongly about) are described as deceiving on ‘peripheral matters.’ Potentially the most shocking case I found was that of Saunders, where Judge Crabtree concluded that he suspected ‘both these girls would have rather been raped by a man than had sex with a woman’. Perhaps it is time we did more to protect the women within our community and downgrade the conclusive presumption of gender deception to evidential?
Overall, the SOA does not adequately protect all women who are a part of our society. The understanding that deception as to the gender of a person automatically connotes someone a rapist is an outright violation of our basic human right to privacy. Maddeningly, whilst the law remains stringent on gender identity, it appears to be more relaxed and less willing to convict a defendant who has sex with a victim whilst they are asleep. Whilst it is obvious that changes in legislation will not automatically impact the general attitudes of the public, there is certainly the possibility that changes to the legislation may ensure these attitudes are not given the opportunity to arise as frequently as they do now. As future lawyers, we have the opportunity to alter existing legislation, so as to more accurately reflect the values we deem most important in the 21st century.
 Olivia Goldhill and John Bingham, ‘One in Three UK Female Students Sexually Assaulted or Abused on Campus’ The Telegraph (14 January 2015) <https://www.telegraph.co.uk/women/womens-life/11343380/Sexually-assault-1-in-3-UK-female-students-victim-on-campus.html> accessed 20 November 2019
 ‘Sexual Offences in England and Wales – Office for National Statistics’ (Office for National Statistics, 8 February 2018) <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexualoffencesinenglandandwales/yearendingmarch2017> accessed 20 November 2019.
 Emily Finch and Vanessa E Munro, ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26 Legal Studies 303, 313
 Emily Finch and Vanessa Munro, ‘The Demon Drink and the Demonized Woman: Socio-Sexual Streyotypes and Responsibility Attribution in Rape Trials involving Intoxicants’ Social & Legal Studies, 16(4), 591, 604
 Sexual Offences Act 2003 s.76
 R v Lartner  Crim LR 75
 ‘Outcry over Teen’s Underwear in Rape Trial’ BBC News (14 November 2018) <https://www.bbc.com/news/world-europe-46207304> accessed 20 November 2019
 R v Bree  EWCA Crim 804
 ibid 25
 (n 6) s.76(b)
 Human Rights Act 1998, art 8
 R v McNally  EWCA Crim 1051
 R v Saunders  EWCA Crim 1571; R v Saunders (Doncaster Crown Court, 12 October 1991); for more analysis of this case see A.M. Smith, ‘The Regulation of Lesbian Sexuality Through Erasure: The Case of Jennifer Saunders’ in K Jay, Lesbian Erotics (New York University Press 1995) 164-179