By Amy Cauchi
A rape offence is not only a delicate topic, but one in which the consequences and mitigation are rarely discussed. For the longest time in Malta, such an offence based itself on the satisfaction of two elements; violence and carnal connection.
However, as of ‘Act 13’ of 2018, the case of violence was substituted with the case of consent. Simply put, consent is now the deciding factor, whether the offence of rape was committed or not. One may wonder why would the legislator want to alter the element of violence? Is the judicial system fairer now than it was before? The answer is still quite unclear.
To begin with, the element of violence was very blurred as it was not defined by law. It was almost subject to interpretation in every case. It could exist in various forms; real or presumed, physical or moral. It could also mean consent was nulled through fraudulent behaviour. The circumstances of the case had to be examined by the court;
- the victim’s vulnerability
- predisposition
- other situational conditions
The stumbling block
However, the main drawback was that violence must have been present at the time of the commencement of the act. This would mean that if violence commenced after intercourse had started, one would not be liable for the offence of rape. There have been cases where a person is injured and the court had to establish whether the injuries were caused at the commencement or after. This was clearly considered as a weak point.
Back in 2003, the case “M.C vs Bulgaria”, reports that the European Court of Human Rights had already harshly criticised those legal systems where violence was a key element of the offence as it could lead to leaving particular attempts of rape unpunished. This led to consent being the more plausible element, and thus enshrined in our legal code. Article 198 of the Criminal Code now states that the carnal connection must be non-consensual. Currently, the court must only determine whether there was consent. This, in a way, has eased the process as it has also done away with the difficulty of establishing the timeline of any injuries. But has it also brought different concerns to the table?
To mention a recent case, a 21-year-old university student was released on bail last July after being charged with having raped a woman. This charge was also placed 3 years after the incident. The court was in possession of chats in which the victim claimed “how much fun she had” and there was also continuous chatting between the two till May 2018. The accused was granted bail with a deposit of €1,000 and a personal guarantee of €5,000. The court also imposed a protection order in favour of the victim. This is just one example of how “consent” can be established and ruled over. Essentially, it would be the victim’s word against the accused.
What does the public think?
When asking what general members of the public thought about these recent changes and how they interpret rape as the subject of consent, the below comments have been highlighted and translated;
“I believe in some cases it does favour women more as it seems to be based on how empathetic you make your case out to be”.
23-year-old university student, female.
“I agree completely with it being based on consent. If I say no, then I shouldn’t be forced or coerced”.
55-year-old housewife.
“Being based on either violence or consent, both seem to have their limitations. I think the law should actually be a combination of both to prove the act”.
45-year-old father & husband.
“I don’t know whether I agree or not to be honest. How is proof on consent actually considered?”
22- year-old university student, female.
“It’s my word against any person I’ve had sexual encounters with. If it’s really this vague, I think it should be reviewed”.
26-year-old single & employed male.
It was found that when the implications of both elements, violence and consent, were explained in detail, all interviewees thought twice about the subject and how it would be interpreted at court. However, by the end of each interview, none had a concrete answer.
The awareness of such frameworks was also found to be lacking as none of the interviewees knew about the recent changes.