Rape, prostitution and consent.

• Jurisdiction: Australia
• Date: 01 August 2007
• Author: Sullivan, Barbara
• Published date: 01 August 2007
• Author: Sullivan, Barbara

Sex workers are particularly vulnerable to sexual assault. However, until recently, there were significant barriers to the prosecution of those who raped sex workers. Prostitutes were seen as 'commonly' available to men, as always consenting to sex and thus as incapable of being raped. This article examines 51 judgments--from the United Kingdom, Australia, Canada and New Zealand--where evidence of prostitution was presented between 1829 and 2004. It demonstrates an important change in the 1980s and 1990s when, for the first time, men began to be prosecuted and convicted for raping sex workers. This change was partly due to rape law reform, but also to feminist activism and broader changes in social attitudes to rape. The article argues that sex workers have recently been 're-made' in law as women vulnerable to rape, as individuals able to give and withhold sexual consent. This development needs to be taken seriously so that law and policy addressed to the sex industry works to enlarge (not reduce or constrain) the making of prostitutes as subjects with consensual capacity. This necessarily involves attention to more legal rights for prostitutes, as workers, and calls into question the conceptualisation of prostitution as always involving rape.

Sexual Assault, Prostitution and Consent

It is now widely acknowledged that rape and sexual assault (1) are common, but largely under-reported; crimes that particularly impact on the life experiences of women. However, it is only in recent years that research has drawn attention to the very high incidence of rape suffered by women sex workers in the course of practising their occupation (Church, Henderson, Barnard, & Hart, 2001; Neame & Heenan, 2003, pp. 7-9) and it would appear that sex workers are even more likely than other women not to report a sexual assault to the police. Clearly, there are a number of reasons for this. Many women who have been raped describe feelings of shame and powerlessness that present clear barriers to the reporting of these crimes. Women's decisions not to report a sexual assault may also be a rational choice; the literature suggests that perpetrators of sexual assault are very unlikely to be charged, let alone convicted, and that victims will often suffer significant negative consequences during and after a rape prosecution (Department for Women, 1996; Heath, 2005). Sex workers perhaps face even more difficulties than other women in all of this. Jan Jordan (2004, p. 18) has recently argued that complaints of rape made by sex workers run a much greater risk of not being taken seriously by police and prosecutors. Sex workers themselves say one reason they do not report sexual assault is fear the police will charge them with prostitution or other offences. And this may indeed be what happens. Banach (1999, p. 18) has reported that several of the Queensland sex workers she interviewed were actually arrested (usually for nonpayment of fines) when they attended a police station to report a sexual assault.

Until recently, there were also other significant barriers that prevented the prosecution of those who sexually assaulted sex workers. In common law jurisdictions like the United Kingdom, Australia, New Zealand and Canada, some of the evidentiary jurisprudence clearly linked chastity with veracity. So women who were or had been sex workers, those who were 'rumoured' to be prostitutes or who were simply promiscuous and behaving 'like a prostitute' lacked credibility as complainants, which made it difficult for the prosecution to prove the sexual assault beyond a reasonable doubt. Women in any of these categories were seen at law as 'commonly available' to men, as always consenting to sexual activity and thus, as not able to be raped. (2) Men accused of sexual assault were therefore able to use evidence of prostitution to defend themselves, to undermine the credibility of rape complainants and to successfully avoid conviction.

This article aims to explore some of the legal and social barriers to the prosecution of those who sexually assault sex workers. There are many ways this aim might be pursued but this article examines court judgments in sexual assault cases involving complainants who were sex workers or where evidence of prostitution was presented to the court. A search was made, initially in 2000, with a follow-up in 2004, for judgments (both reported and unreported) that fitted this description in the United Kingdom, Australia, Canada and New Zealand. These four countries were selected because of their strong cultural (and legal) links and because it was assumed there would be only a very small number of available judgments (so looking at more than one country was an attempt both to identify any broad trends in relation to the prosecution of sexual assaults where the complainants were sex workers and to increase the number of cases available for examination). The assumption about a small number of judgments proved to be correct in relation to the period before the late 1980s, but a large (and burgeoning) number of judgments were found for the last 20 years. So the sample used in this investigation is not comprehensive, especially for the last 20 years. Fifty-one judgments were located and utilised in this study, including 21 from the United Kingdom, 14 from Australia, 12 from Canada and 4 from New Zealand; these span a period between 1829 and 2004, although the vast majority of court judgments examined are from the post-1950 period. Most involve appeals in relation to the conviction or sentencing of men accused of rape; there were no women defendants, and there was only one male complainant (involving a male sex worker in the Canadian case of R v Palrette Hoonjan). In the first part of this article I examine the development and application of evidentiary rules that prevented the prosecution and conviction of men who sexually assaulted sex workers (and other women deemed similar to prostitutes). In the second part of the article I look at how this situation began to change in the late 1980s and 1990s. This was due partly to rape law reform but also to feminist activism and changing social attitudes to rape in the broader community. Overall, the article argues that sex workers have recently been 're-made' in law as women vulnerable to rape, as individuals able to give and withhold sexual consent, and thus as entitled to redress under the legal system. This is an important development the implications of which remain largely unaddressed in the fields of law and public policy. Public and legal debates about the sex industry rarely pay attention to the likely impact of proposed changes on the constitution of sex workers as subjects. This impact needs to be taken seriously so that law and policy addressed to the sex industry works to enlarge (not reduce or constrain) the making of prostitutes as subjects with consensual capacity. As I argue in the final section of the article, this necessarily involves attention to more legal rights for prostitutes, as workers, and calls into question the conceptualisation of prostitution as always involving rape.

Evidentiary Rules and Evidence of Prostitution

In 18th century British law it was recognised that a prostitute could be the victim of rape. Writing in 1769, Blackstone suggested that even prostitutes and 'common harlots' were protected under the enlightened common law of England (cited in Henning & Bronitt, 1998, p. 76). In practice, however, it was very unlikely that a man would be convicted of rape on a woman known to be a prostitute (Edwards, 1981). As Henning and Bronnit (1998 p. 76) argue:

In practice, the reputation and prior sexual experience of the complainant was a crucial factor in securing a conviction for rape. Rape trials, then as now, focused to an unusual degree on the moral character of the complainant. Respectable women who had physically resisted their attackers and promptly complained of their abuse could seek the protection of the criminal law. But women who did not conform to this norm invariably forfeited this protection. Rules of evidence reflected the widely held assumption that unchaste women were untrustworthy. Thus in rape trials, the complainants's sexual reputation and past sexual experiences were deemed to be relevant to her truthfulness and reliability as a witness (Henning and Bronitt, 1998, p. 77). From at least 1829, evidence of the complainant's actual or rumoured occupation in prostitution was accepted as relevant evidence in a rape trial. Defendants could present testimony that the woman who accused them of rape was a known or 'common' prostitute, had in the past been a prostitute, associated with prostitutes or had simply indulged in behaviour which made her resemble a prostitute. In court, women who claimed they had been raped could be extensively cross-examined about their sexual reputation and experience, and any evidence of prostitution was seen to compromise their credibility and thus be directly relevant to the issue of consent, including any claim that there had been no consent to the sex. The view of the law would appear to be that evidence of prostitution made it more likely that a woman had not been raped but had consented to the sexual conduct. Thus, a man accused of sexual assault in this situation would be more likely to be found not guilty.

In Britain, Canada and Australia there are numerous examples of this state of affairs. In the British judgment of R v Barker (1829), counsel for the accused was permitted to ask the complainant, Mary Anne Saunders, about her activities as a prostitute. The judge said that, in general, evidence of a complainant being involved in illegal activities would not be admitted in a rape trial. However, this did not include prostitution and:

... evidence might be adduced by the prisoner to shew the general light character of the prosecutrix and that general evidence might be given of her being a street...