An analysis of the treatment of incapacitated rape complainants: the potential of vulnerability as a new foundation for legal reform.

Abstract

This thesis critically analyses the legal treatment of incapacitated rape complainants in England and Wales suggesting the need for reform. Recent statistics have identified a substantial drop in the rate of convictions for rape and sexual assault, indicating the need for substantial change to the criminal justice system. With a particular focus on incapacitated complainants, this thesis seeks to critically evaluate the failures of the current law. It will use a theory of vulnerability to suggest that the current conceptual underpinning of the law-autonomy, is at the core of the problematic response to sexual assault. In particular, it will argue that an autonomy-based approach has led to responsibilise complainants and develop a hierarchy of protections for incapacities. These issues, together with the inadequacy of a consent model, place undue focus on complainant’s behaviour thereby distracting from the defendant’s actions. After identifying the problems with an autonomy-based approach, this thesis will suggest a new legal offence drawing from Martha Fineman’s theory of vulnerability. Titled ‘unjustified sexual relations’ the offence will expand upon Jonathan Herring and Michelle Madden Dempsey’s argument that sexual penetration requires justification. This new offence will remove the focus from consent to a more robust requirement of justification. To demonstrate justification, a defendant must show that they did not exploit the vulnerability of the complainant. This theoretical shift will encourage a move away from the individual responsibility to avoid harm that an autonomy approach carries, to a duty placed on everyone not to exploit each other’s vulnerability. This thesis acknowledges the powerful but limited role of the law. Therefore, it will be argued that a theory of vulnerability should be used to demand a responsive State to transform the societal response to sexual assault complainants requiring widespread and systemic change.