Home Civil Liberty When Is A Rape Actually A Rape?

When Is A Rape Actually A Rape?



This is not to make the Whoppi Goldberg distinction in which she claimed that the statutory – and anal – rape of a minor age and drugged teenage girl by Roman Polanski wasn’t the same as, you know, “rapey rape”. For of course Whoopi was right in that distinction – many would say Polanski’s actions were worse than leaping out of the bushes etc.

We do though have a problem here in our definition of rape. Clearly, a rape is a rape when a rape occurs. But when do we know that a rape has occurred? This being the problem we’ve got to try to wrestle with when discussing the conviction rate for rape in Britain right now.

The Crown Prosecution Service has faced a barrage of criticism after rape convictions in England and Wales fell to a record low, with police publicly censuring its charging policies and a judge paving the way for a landmark legal challenge.

New figures revealed that prosecutions and convictions more than halved in three years even though reported rapes increased. Despite police recording more than 55,000 rapes in 2019-20, there were just 2,102 prosecutions and 1,439 convictions. Three years earlier, just over 41,600 rapes were recorded and there were more than 5,000 prosecutions and nearly 3,000 convictions.

That gets it right to begin with then veers off into error. It is correct to state that there were 55,000 reported rapes. But that does not then glide over to 55,000 rapes having happened nor that the police recorded 55,000 rapes. The police, correctly recorded 55,000 reports of rapes.

We know, for example, that some reports of a rape having occurred are entirely made up. Either phantasms of the imagination or deliberate attempts to screw over someone. There are people serving jail sentences for having done this, we really are very certain that it happens.

No, let us not get waylaid into how often even if the best inquiry we’ve had suggests about 6% of reports are such.

We then have a further problem. Which is that not all that is reported as rape is in fact so. This is after the malice above is accounted for. Rape being a difficult crime in the first place for two consenting adults humping away is entirely legal, rape is when one or t’other isn’t consenting. Which isn’t quite enough for the offence in fact, the one consenting has to know that the other isn’t.

Thus the report of a rape is not the same as a rape having happened. It is necessary to examine what did happen to decide whether a rape occurred. Which is what we have a legal process for of course but it appears that this part of the legal process is exactly what is complained about.

After this we have the more usual problems of agreeing that a crime has been committed and then working out who did it. In the case of stranger rape this being difficult at times.

But it is that gap between one person believing that a rape has happened and righteously reporting it and being able to conclude that a rape did actually happen that really causes the problems here. It’s possible to shade the law rather a lot, to demand that consent is open, even written. Or to assume that without vehement displays of disagreement that it exists. No, not to say that either of those is the desired manner of doing so, only to point out that we can be lax or strict in either direction on the matter of demonstrated consent.

But we still have this problem. Sex is a fairly normal activity. It is the lack of consent that converts it to rape. So, it is necessary to demonstrate, or assume, or conclude, something about consent before we can agree that a rape has occurred.

At which point we can, conclusively, state that Joan Smith is wrong:

Thousands of women summoned up the courage to go to the police in England and Wales last year – only to see no one charged.
But it also means that perhaps 50,000 men got away with rape, and there’s nothing to stop them doing it again.

It simply is not true that a report of a rape means that a rape happened. The determination of what happened being a rape or not being something that comes later in the process.

This is important and something that needs to be remembered in this current debate. A report of a rape is the starting point to the determination of whether the crime of rape occurred or not. It is not evidence by and of itself that the crime has happened.

Not that we’re going to get this level of subtlety from Joan Smith of course. If your love life has included trysts with Dennis MacShane then sex is undoubtedly something you’re going to be a bit hazy about.



  1. I had to repeatedly warn somebody they were committing libel when they repeatedly wrote “he got away with it” about something, I kept telling him: no, he didn’t get away with it, the legal process found that he *didn’t* *do* *it*.
    “Yeah, so he got away with it”
    *NO*, He. Didn’t. Do. It.
    “So he got away with it”
    (gives up, suspends his account for 24hrs)

  2. Perhaps we need different (legal?) terms, like murder/manslaughter. There’s rape that involves some guy with a knife leaping out from behind a bush and ravaging some defenceless woman – this is what comes to the mind of most people when they hear the word, and (to my memory) would have been the entirety of ‘rape’ 30 years ago. My impression is that this type of rape has significantly diminished.

    And then there’s the modern type of rape, which is sex that takes place without the consent of both (all?) parties, but where no violence or (apparent) coercion is involved, which makes up the great majority of rape statistics. I think we need a different word to describe it.

    • This is getting closer. Tim touched on it when he mentioned stranger rape, but that is the crucial distinction. Stranger rape is open and shut. Acquaintance or date rape is murky especially where there are no witnesses which is the norm. Nobody’s going to go for a softer version of the word ‘rape’ to describe the non-violent type, so there will have to be rape and aggravated rape.


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expunct (ɪkˈspʌŋkt)
VERB (transitive)
1. to delete or erase; blot out; obliterate
2. to wipe out or destroy

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