Page 659 - Magistrates Conference 2019

R. v D, 2008 WL 4657244 (2008)

deteriorated over time. According to the complainant, the appellant had become increasingly aggressive, particularly towards
the end of 2005, when under the influence of alcohol. This may have been due in part to the fact that he was having financial
problems. The complainant alleged that in the period up to the 31st October 2005, he had forced her to have sexual intercourse,
once in their bed, and once on a sofa. On an occasion thereafter between October and December 2005, when picking her up
from work, he had effectively abducted her and driven her off to a secluded place where he raped her in the car.

3. The final incident occurred on the 13th January 2006 when, according to the complainant, she was dragged upstairs, had her
clothes forcefully removed and was then raped vaginally, orally and anally. He then, according to her, inserted a deodorant can
into her vagina. The incident only stopped when the complainant's son returned home. The appellant then left the home and
went off to the public house to drink. When he came back, there was an incident which resulted in the police being called. At that
stage the complainant made no allegations of any sexual assault on her. The first time that she did so was on the 15th January
2006 when Police Constable Stephenson came to take her statement about what had happened on the evening of the 13th.

4. The appellant denied that he had ever had any sexual activity with the complainant without her consent. In particular, on
the 13th January 2006 he agreed that there had been vigorous sexual activity, which had been entirely with the complainant's
consent. But there had, he said, been difficulties between him and the complainant; and he believed that the complainant had
come to the conclusion that she wanted him to leave. The allegations that she had made were intended to achieve that objective.
Counsel on his behalf had, in cross-examining the complainant, particularly stressed the fact that she had not made any complaint
about a sexual assault when the police came on the evening of the 13th January 2006. Her answer was that she felt that it was
very difficult to talk to the police that evening. There were a number of police officers there and the atmosphere was not right.
She had felt ashamed of what had happened. It was only when she was talking to the single police officer that she felt able
to tell the whole story.

5. The appellant's case was heavily dependant on the jury being prepared to entertain doubt about the complainant's evidence
because of her failure to make any complaint on the 13th January. There was very little independent evidence to support
either party, although it should be said that the complainant's son who had come back to the house on the 13th had found
the complainant extremely distressed. And the appellant's account that the complainant was willing to engage in the sort of
sexual activity that he described on the 13th January was difficult to square with his evidence that her complaint was based on
a determination to get rid of him on the 15th January.

6. Be that as it may, the appeal is based fairly and squarely on a passage in the summing-up which, it is said, was seriously
unfair. The passage needs to be related in full. The judge said:

"Something about rape, ladies and gentleman. Rape is unlike many other criminal offences. It's quite unlike other types of
assault. If somebody came up to you in the pub and accused you of spilling drink on them, and then punched you on the nose,
you would have no hesitation, I apprehend in complaining about that and going straight to the police and saying: "that chap
just punched me on the nose I want him taken to court and prosecuted and punished." No difficulty about that. Equally, if your
home had been burgled and you knew who it was who had done it, you wouldn't have any difficulty about ringing the police
and complaining about the fact that you'd had your plasma screen television taken and the bedroom was trashed and you want
the perpetrator caught and prosecuted.

But rape is not like those offences. It's much more complicated both in its effects and how it's dealt with by victims. For example,
it's a common misunderstanding about forced sex within a relationship that in some way it doesn't really matter. I'm speaking
now of course about the rape of a woman. I appreciate, as you know, that men can be raped, and there are many other types of
sexual assault, but in relation to a woman who is raped, a woman may consent to sexual intercourse because she loves and trust
her partner. It's consent to sexual engagement within a loving and tender atmosphere, and it can greatly enrich a relationship,
and it's a joy for life for many people. It means a great deal to a woman that she consents to that sort of relationship. Therefore,
when a man forces himself on a woman it's a massive breach of trust. It becomes for the woman brutal and degrading and
humiliating and hugely upsetting, and very often men will misunderstand this, because they will say: Well I've had sex with
this woman dozens and dozens of times, so why is it so bad on this occasion? It's the breach of trust. It's the invasion. It's the
treatment of the woman in this manner of disregard that affects them so greatly.

© 2019 Thomson Reuters. 3