The history of rape laws: Some might find it hard to believe, but the law is a lot better now

Bloody clothes used to be pivotal to a prosecution

Few offences have stumped the courts quite like rape.

A statutory offence under the Sexual Offences Act 2003, a defendant will be found guilty of rape if he intentionally has non-consensual sex with his victim and he does not reasonably believe that his victim consents.

But it’s not the law itself that is the focus of controversy: it is the persisting dissatisfaction with how it is applied.

Rape is, and has long been, one of the trickiest offences of all to prove up to the requisite criminal law standard. Though the conviction rate is the highest to date (58%), it still trails behind the overall ratio of 83% for all crimes. This, coupled with the reluctance of victims to report a rape, means conviction rates are considered depressingly low. This was explored at length by previous Legal Cheek Journal contributor Efa Gough.

This isn’t just a problem cited by lawyers. The world is becoming increasingly fascinated by so-called rape ‘culture’, arguing that modern societies are structured in such a way that rape is normalised and tolerated, and that perpetrators are being shielded by it. Kesha’s alleged assailant Dr Luke, Stanford rapist Brock Turner — people are getting fed up with offenders ‘getting away with it’.

Though there are problems with current prosecutions and no one is suggesting our current system is perfect, our contemporary rape legislation and criminal procedures are more logical and fair than they have been throughout history. In an English legal system characterised by capital punishment, modes of proof that are retrospectively ridiculous (trial by ordeal, trial by battle, etc) and raging inequality of the sexes, the law’s approach to sexual offences similarly left a lot to be desired.

Though rape was considered serious — it was a capital offence until 1841 — it was extremely difficult to get cases to court thanks to a string of societal and procedural barriers.

Law often influences culture, but it cuts both ways. Lest we forget that in the past women could not vote, divorce their husbands or inherit under wills. The culture of the time dictated that rape was not an appropriate matter for resolution through prosecution; instead, there were an awful lot of out-of-court settlements (victims married off to rapists or paid off).

For those complainants keen to see their attacker prosecuted, the onus was on them to make their case. While this gels nicely with modern concepts of the burden of proof, immediate action had to be taken to signal to the authorities that the offence had occurred. Bloody clothing and torn garments were one of the best ways to do this, which meant the rape of virgins or rapes of demonstrable violence were most likely to reach the courtroom. As you can imagine, however, many victims were barred from accessing justice because of this: in 1805, there were just eight prosecutions for rape.

If the case managed to get to court, it was difficult to obtain a conviction.

With embryonic rules of evidence knocking about until the 19th century, the fear of miscarriage of justice weighed heavy on the courts’ shoulders. Accusees frequently portrayed their accusers as malicious and revenge-seeking, preying on hapless victims, and any indication of carelessness on the victim’s part could totally destroy a case (a common complaint in today’s justice system). In 1863, an accused rapist was acquitted of raping a woman in some hop fields not because the jury did not believe he had committed the act, but “because she had acted foolishly in going with the prisoner through the gardens.” In 1879, a young man accused of raping a woman was acquitted because she had agreed to let him walk her home.

In rare cases where all these hoops had managed to have been jumped through, the punishment dished out to convictees could be pretty illogical. Though death sentences and mutilation of the eyes and testicles were used, the extent of sentencing hinged on the victim’s respectability (the quintessential ideal in those times). A like punishment would not be imposed for the rape of a nun and the rape of a prostitute, for example.

The tables began to turn in the 19th century which saw an increase in rape cases and convictions. At the same time, women’s rights movements began to pick up pace: equity had put females on a more level playing field with their male counterparts, witchcraft was an offence of the past and divorce law had begun to evolve.

The introduction of the police force and the increase in specialised medical witnesses also helped shape the law of rape into something more akin to what we have today. Though the current state of play is hardly perfect (and no one is suggesting complacency) it’s a hell of a lot better than it was.