Sarah Churchwell: The law on rape remains asinine and archaic

One of the most grotesque aspects of rape law on both sides of the Atlantic is how fossilised it remains. Last week a United States congressman debating a bill that would deny paternity rights to rapists whose victims conceive a child quoted Sir Matthew Hale, England's Chief Justice in the 1670s, who opined: "Rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused."

Charged with insensitivity, Congressman Vallario has continued to defend his archaism as a "history lesson". For victims of rape, history is a nightmare from which society needs to awake; far too many lawmakers appear to have been snoozing peacefully for centuries. (Perhaps this has something to do with the fact that women make up 20 per cent of the UK Commons and 16 per cent of US Congress?)

Rape law in the United States and the United Kingdom continues disproportionately to sympathise with the defendant and to blame, slander, or otherwise discredit the victim. This week's latest gem, courtesy of the Government's drug advisers, advises women to avoid going alone to social events in order to protect themselves against rape.

Clearly these people have never seen The Accused: if you're a woman, there isn't necessarily safety in numbers. A woman going to a party alone: now there's some seriously reckless behaviour. If she happens to walk on a street in order to get home, maybe we can call her a streetwalker and absolve ourselves of any collective responsibility for her safety whatsoever (I am thinking in particular of the columnist who wrote after the Ipswich murders that strangulation should be regarded as an "occupational hazard" for these "disgusting, drug-addled street whores").

These latest recommendations come in the wake of reviews about the role of drink and drugs in prosecuting date rape. Recently, the senior jurist Sir Igor Judge was quoted as explaining that if a woman is incapable of giving consent, then sexual intercourse with her amounts to rape; if she is capable of giving consent and does, sex with her is not rape.

No doubt this point seems uncontroversial, but it raises a big question about the notion of "consent" as some immutable, irreversible permission. Even if she consented when they "started having sex" (whatever that means: kissing? fondling? penetration?) isn't it possible that before they "finished having sex" (before which one has finished having sex? How do we define finished? ejaculation? orgasm? loss of interest?) she might change her mind in medias res?

The law would seem not to think so. But what if she changes her mind because he started smacking her? Because he wanted to indulge in behaviour that she found uncomfortable, unsavoury, or frightening? If he continues, when she has told him to stop, then surely there is a strong moral argument for saying that he raped her, despite her having initially "given consent".

But for the moment let's pretend that a woman "consenting" to sex is like signing up for satellite television, and that she is bound by her decision for a period to be determined by the other party in the transaction. The real problem is what Sir Igor Judge revealed about how consent is legally determined: "If, through drink, or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse, she is not consenting," he clarified. "Subject to questions about the defendant's state of mind, if the intercourse takes place this would be rape."

Subject to questions about the defendant's state of mind - not the accuser's. British and American rape law, uniquely in criminal cases, hinge on the asserted state of mind of the alleged criminal, rather than on the perceptions of the alleged victim.

If she has lost her capacity for consent (i.e., she is semi-conscious or unconscious), and he takes that as a lucky break and has sex with her, then the court sets out to determine what his state of mind was. If he could "reasonably" have concluded that consent was given, then he is legally not guilty of rape. Instead of determining whether a defendant committed a crime, the court must determine whether the defendant believes that he committed a crime. Granted that any case of date rape is going to devolve into her word against his (assuming heterosexual rape; there is still precious little attention paid to the very real crime of homosexual rape), the question is not solved by making him the arbiter of her state of mind.

In 1977, according to one report, about a third of all rape cases in the UK ended in conviction. Thirty years later, the conviction rate has dropped to 5.31 per cent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.

A few months ago, British audiences were treated to the spectacle of Michael Portillo, Jeffrey Archer and Stan Collymore pronouncing on a mock rape trial on the BBC's The Verdict. Portillo asked why a woman would go to a man's hotel room if she didn't intend to have sex with him. As if that weren't asinine enough, Collymore insisted that footballers don't "need" to rape because they can have sex with any woman they want. The woman's consent evidently remains a foregone conclusion: obviously, Sir Matthew Hale knew whereof he spoke.

The author is senior lecturer in American Studies at the University of East Anglia