Sexual Offences Act
Drew would probably have avoided conviction because of the “patchwork quilt of provisions” (Home Office, 2000) that rape law consisted of, and also the infamous Morgan ruling that stated that “a mistaken but honest belief” in consent could lead to acquittal even if the belief in the consent was not “reasonable”. (Morgan, 1976) Here, if the defendant did not have the mens rea (even if he clearly committed the actus reus) then he would not be convicted. This was called the “Rapist’s Charter” by some feminist legal scholars because of the apparently innate difficulty in ‘proving’ a men’s rea in all but the most obviously forceful of rape cases. (Temkin, 1987)
Under the law, the fact that they had sexual intercourse a few weeks before this incident might be used effectively by the defense to show that Drew did indeed have an “honest” belief that Clarice was consenting (Harris, Weiss, 1995), even if it did not rise to the higher standard of “reasonable”. In Regina v. A, the Lords answered the following question in the affirmative:
Lord Slynn did raise questions regarding the efficacy of this affirmation, stating the dangers involved by arguing that “evidence of previous sex with the accused also has its dangers . . . it may lead the jury to accept that consensual sex once means that any future sex was with the woman’s consent . . . this is far from being necessarily true and the question must always be whether there was consent to sex with this accused on this occasion and in these circumstances.” (R v. A, 2001)
With the 2003 law in place (and with R v. A taken into account) Drew’s conviction would depend upon the consideration of “all the circumstances” surrounding the incident. If the circumstances involving the previous sexual intercourse that had occurred between Drew and Clarice (allowed under R v. A) were similar to .the circumstances on this night then Drew would have a powerful argument suggesting that he reasonably though that Clarice was giving consent. .