Complicity and Rape

The case of R v Clarkson (1971) concerns the complicity of three non-participating observers to a vicious gang rape. The observers were charged with ‘encouraging’ the rape, but this was rejected by the Court of Appeal on the ground that two of them had been ‘mere’ observers, and there was no evidence that they had encouraged the perpetrators by word or gesture. This case is regularly cited to this day, without critical comment, as a limit on complicity under English common law. In this article, I want to challenge the Court of Appeal’s judgment and argue that the two observers should have been found complicit. My argument is based on the special nature of rape, and the capacity for a male observer to compound the female victim’s humiliation by their mere presence. My argument is even more justified in the case of Clarkson, I argue, because it took place on a British army base abroad