Criminal Law and the Man Problem

Ngaire Naffine

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509918027
• Edition: 1
• Topic: Droit
• Subtopic: Droit pénal

Men have always dominated the most basic precepts of the criminal legal world – its norms, its priorities and its character. Men have been the regulators and the regulated: the main subjects and objects of criminal law and by far the more dangerous sex. And yet men, as men, are still hardly talked about as the determining force within criminal law or in its exegesis. This book brings men into sharp focus, as the pervasively powerful interest group, whose wants and preoccupations have shaped the discipline. This constitutes the 'man problem' of criminal law. This new analysis probes the unacknowledged thinking of generations of influential legal men, which includes the psychological and legal techniques that have obscured the operation of bias, even to the legal experts themselves. It explains how men's interests have influenced the most cherished legal norms, especially the rules of human contact, which were designed to protect men from other men, while specifically securing lawful sexual access to at least one woman. The aim is to test the discipline's broadest commitments to civility, and its trajectory towards the final resolution, when men and women were declared to be equal and equivalent legal persons. In the process it exposes the morally and intellectually limiting consequences of male power.

1

The Problem Illustrated: The Landmark Marital Rape Case of DPP v Morgan and Its Mixed Significance for the Men of Law

In this first chapter I introduce and illustrate the man problem of criminal law, using a House of Lords decision of the 1970s: DPP v Morgan.¹ This is a landmark rape case (the facts of which will be disclosed shortly), still invoked as such today.² By close inspection of the legal responses to this famous case, I will ‘tweezer out’³ my principal male characters: the men of criminal law as they give voice to men and their interests. I will begin my task of bringing legal men to the fore, as an enormously powerful interest group, whose wants and preoccupations have shaped the discipline of criminal law, often in silent and obscured ways. This is my ‘man problem’ of criminal law, which forms the subject of this book.

In DPP v Morgan (Morgan) the actions and intentions of the main protagonist William Morgan, the husband who raped his wife, were graphic and horrific and not in doubt. Indeed Morgan orchestrated the serial rape of his wife, yet he was not prosecuted as the principal offender. This alone is perhaps a shocking thing. But my interest is in the variety of reactions of legal men of influence to this case (which lets the husband off as principal rapist) and to the marital immunity more generally. Some men of influence take the husband’s immunity from prosecution as a given, a background feature of criminal law, perhaps an unsavoury thing, but one that does not need to be gone into. Others treat the immunity as a positive good. Still others proceed as if it does not exist, for it is such a male partisan law, and really their arguments about the general character of criminal law, and especially its claims for civility, depend on the immunity’s non-existence.

I start with the Law Lord who gave one of the majority judgments in Morgan and move on to examine the scholarly community and their diverse reactions. Considered together, these views do not cohere and indeed these jurists do not seem to be talking to each other or about the same thing. They seem to be operating at different levels of criminal law and addressing different audiences, and to different ends. What they share is a failure to consider, closely and critically, the immunity from prosecution of men who raped their wives, what it meant for their own sex as responsible citizens and what it meant for criminal law at large. And this is in spite of their intense interest in the crime of rape, treated as a horror crime – judicially, doctrinally, conceptually and philosophically.

There is here a curious mix of attention and inattention. None of these influential men reflects carefully and critically on the non-responsibility of the husband. None reflects on the implications for criminal law as a body of principle. This is odd, for when criminal law is being thought of as a moral force, as a mechanism for civility, the crime of rape is treated as one that is universally wrong and universally condemned. Simply put, this philosophical criminal jurisprudence treats the crime of rape as if the immunity were not there.

I.Introducing the Men of Legal Influence: The Cast of Characters

There is firstly the judge in the case of Morgan who describes the facts unflinchingly and graphically and then explains in a single sentence, without further comment, that the husband was not prosecuted for rape because of ‘an ancient doctrine’ that he should be immune from prosecution. He does not look away from the violence of Morgan, but he makes little of the law that does not punish him as a husband. This is put to one side.

Secondly, we have the textbooks writers on criminal law, and its organising principles, who must be fully aware of the case, or cases like it, but who persist with a defence of the immunity that is based on a very different understanding of its nature and significance. Implicitly they exceptionalise Morgan and do not refer to it. In these accounts of rape and its law, when husbands force sex, it is because the marriage has gone a bit wrong and the bumbling husband is trying to fix things up. He is making a hash of an attempt at rapprochement and asserting his authority as a masterful husband. These legal men are intensely concerned with the interests of the husband but this is the husband benignly understood, as if the theorist were projected into his shoes or pajamas. He is horrified at the very idea of criminal law entering his bedroom.

Thirdly, there are the doctrinal and conceptual scholars who examine the case of Morgan as an important illustration of a so-called ‘core’ or serious crime, and the conditions of liability that such a crime should attract. They accept the view of the court that this is a case about the mental element of rape (by a non-husband) and they focus exclusively on what it has to say about subjective criminal responsibility: whether the defendant must realise that his victim is non-consenting; whether an unreasonable belief in consent will excuse. Morgan is repeatedly examined by such scholars for its pronouncements on the need for subjective responsibility for serious crimes: the need for the accused to intend the prohibited act in order to be blameworthy. But it is largely invisible to the scholarly community as a marital rape case – or rather as a case where the main rapist was considered legally incapable of rape, as a principal, despite the clear presence of a subjective mental element (he absolutely knew his wife was not consenting), and so was not charged as such.

With these doctrinal scholars there is also something very odd going on because it is the seriousness of the crime that is the reason for the call for subjective responsibility, but the non-application of such serious criminal law to the husband (despite his subjective appreciation that his wife does not want to be forcibly penetrated) is not of note. It is not seen. It is as if they are assuming that such a serious crime, calling for subjective mens rea, were comprehensively criminalised, though the case before them shows that it is not. (There are also the feminists expressing outrage that the unreasonable belief should excuse and who ultimately win the day in England, but not immediately.)

Fourthly, there are the legal scholars as philosophers who are trying to make sense of criminal law as a whole, as a body of moral and social norms, and its role in securing a civil society, and who assert, with confidence, that rape is a core horror crime which must be criminalised and who proceed with their theories of criminal law as if the law did actually comprehensively punish all rapists, husbands included. With this ‘as if’ built into their theories, they make comprehensive criminalisation and condemnation of rape a major test of the very legitimacy and civility of criminal law. The husband’s immunity does not fit into this scheme and it is not referred to.

So my four types of men of legal influence, and their thoughts about men and the crime of rape, its seriousness and its scope and its significance, are The Judge, The Textbook Writer as Husband, the Doctrinal Legal Scholar and The Legal Scholar as Political Philosopher.

II.The View from the Bench and the Man of Law as Judge: Lord Hailsham of St Marylebone and DPP v Morgan

Lord Hailsham, who delivered the leading majority judgment in Morgan (the one most cited) gives a vivid, memorable, almost novelesque, account of the words and actions of William Morgan which leaves us in no doubt about Morgan’s cruelty and his malignant character. He abuses his position of military authority, he abuses his friendships, he incites and enables a serial rape and he rapes his wife after having helped to hold all her limbs apart while his three friends rape her first.

The main legal question for the court, says Lord Hailsham, is one ‘of great academic importance in the theory of English criminal law’, and it concerns ‘the mental element in rape’.⁴ The question is ‘Whether, in rape, the defendant can properly be convicted notwithstanding that he in fact believed that the woman consented, if such belief was not based on reasonable grounds’.⁵ This is cast as a formal question of ‘academic importance’ but his is no dry legal judgment. It is vivid and visual.

Lord Hailsham describes the facts as given by Daphne Morgan and as accepted by the court graphically, with concision and in ordinary non-legal language. In fact his is an example of lucid and highly visual legal writing, which takes us to the scenes of the crime:

The question arises in the following way. The appellant Morgan and his three co-defendants, who were all members of the R.A.F., spent the evening of the 15th August, 1973, in one another’s company. The appellant Morgan was significantly older than the other three, and considerably senior to them in rank.⁶

We are told that William Morgan and his three friends had spent an evening together in Wolverhampton, drinking. ‘Their original intention had been to find some women in the town, but when this failed, Morgan made the surprising suggestion to the others that they should all return to his home and have sexual intercourse with his wife’.⁷

As Hailsham explains, according to the three friends, Morgan had told them that his wife was ‘kinky’ and that she enjoyed feigning resistance to sex and so they should ignore such resistance.⁸ It was on this basis, they said, that they went back to Morgan’s home. Hailsham sets the scene in the home and in the bedrooms.

[William Morgan] was, as I have said, married to the alleged victim, but not, it seems at the time habitually sleeping in the same bed. At this time, Mrs Morgan occupied a single bed in the same room as her younger son aged about eleven years, and by the time the appellants arrived at Morgan’s house, Mrs Morgan was already in bed and asleep, until she was awoken by their presence.

According to the version of the facts which she gave in evidence and which was evidently accepted by the jury, she was aroused from her sleep, frog-marched into another room where there was a double bed, held by each of her limbs, arms and legs apart, by the four appellants, while each of the three young appellants in turn had intercourse with her in the presence of the others, during which time the other two committed various lewd acts upon various parts of her body. When each had finished and had left the room, the appellant Morgan completed the series of incidents by having intercourse with her himself.⁹

Hailsham gives a stomach-churning account of the rapes, drawing on the evidence of Daphne Morgan which is accepted by the court. He reveals her fear for her life, the seizing of all her limbs, her screaming, the sheer brutality employed.

According to Mrs Morgan she consented to none of this and made her opposition to what was being done very plain indeed. In her evidence to the Court, she said that her husband was the first to seize her and pull her out of bed. She then ‘yelled’ to the little boy who was sleeping with her to call the police, and later, when the elder boy came out on the landing, she called to him to get the police and ‘screamed’. Her assailants, however, covered her face and pinched her nose, until she begged them to let her breathe. She was held, wrists and feet, ‘dragged’ to the neighbouring room, put on the bed where the various incidents occurred. At this stage she was overcome with fear of ‘being hit’. There was never a time when her body was free from being held. When it was all over she grabbed her coat, ran out of the house, drove straight to the hospital and immediately complained to the staff of having been raped. The last fact was fully borne out by evidence from the hospital.¹⁰

This is bold, concrete, active writing, which avoids the passive voice. And you can feel the moral outrage of the judge. This is revolting male behaviour, to be condemned utterly.

Morgan’s three friends are charged with rape as principal offenders and also with aiding and abetting the principal offences of each other. The fourth defendant, William Morgan, is not charged with rape as a principal offender as the prosecution accepted the common law doctrine that a husband could not rape his wife. I will return to this shortly.

The defence of the three co-defendants of Morgan concerned their mental element. They argued that they did not have the necessary guilty mind for the crime of rape because they had believed Morgan – that is, they believed that his wife enjoyed sex in which she was forced but only feigned resistance. Therefore they honestly believed that she was consenting. The three men also maintained that Mrs Morgan was an active participant in the sex (they said that events had n...