A radical overhaul of the rape laws, including a potential new definition of whether a woman is fit to give consent to sex, has been prepared by ministers to ensure more rapists are convicted.
Mike OBrien, the Solicitor General, has drawn up a package of measures to counter Britains record low conviction rate for men charged with rape, amid new concern that women may no longer come forward if the likelihood of a guilty verdict is perceived to be too low. Among the proposals is a new legal definition of a victims capability to give consent in cases where they may have been drinking or were asleep when the attack took place.
This follows concern among senior government lawyers over last months decision by a High Court judge to throw out the case of a student who claimed that she was raped while drunk and unconscious, on the basis that drunken consent is still consent.
OBrien is concerned that the ruling may have given the wrong impression that women raped while drunk risk losing the chance to bring attackers to justice.
Just 5.6 per cent of Britains reported rape cases result in the rapist being convicted in court, the lowest of any European country except the Irish Republic.
OBrien will send proposals this week to the Bar Council and Ken McDonald, the Director of Public Prosecutions, after winning the backing of the ministerial committee on sexual offences.
Under the proposals, to be unveiled early next year, judges could not preside over rape trials if they had not been on special training courses about the offence.
Anti-rape campaigners welcomed the moves, which follow a campaign by The Observer for justice for rape victims, as highly significant and likely to result in more rapists being sent to prison. Among the new government proposals are:
· Expert witnesses will be allowed to present behavioural evidence at rape trials after their successful use in the US. The prosecution would be allowed to suggest that an alleged victim was displaying psychological symptoms of having been raped.
· Special advocates to explain judicial process and offer emotional support to victims.
· For the first time there may be a legal definition on whether a rape victim was able to grant consent, making it more difficult for alleged attackers to show that sex was consensual.
· Whether the sexual history of a victim is relevant will be outlined at pre-trial hearings. It is hoped this will prevent the defence raising traumatic past events unless they are exceptionally relevant.
· A government advertising campaign to impress on drinkers that if they do not secure consent they risk a long jail sentence.
Yvonne Traynor of the Rape and Sexual Abuse Support Centre said: We have waited a long time for someone to listen to us about the miscarriage of justice during rape trials.
OBrien has told colleagues he had contacted the Bar Council to discuss a training course to ensure judges have a greater understanding of complex rape cases. Introduction of expert witnesses such as psychologists to testify about rape victims behaviour has been successful in the US in defusing jurors prejudices.
However OBrien has ruled out lowering the burden of proof in rape cases because it would carry a greater risk of jailing innocent people.
The most recent data from the British Crime Survey suggest that one in 20 adult women has suffered at least one incident of rape. Women are most likely to be raped at home by men they know. One of the main obstacles to a rape conviction is jurors attitude to female behaviour, according to police and legal experts.
