Thursday, August 13, 2009

Re-visiting Rape

I am always interested to see that people have commented on my posts, and it seems that there have been a number of replies concerning the post on Harriet Harman’s views on rape.

It seems that most people would agree that trying to set to set arbitrary targets is not the solution to the problem of low rape convictions. There does seem to have been some disagreement as to the issue of directions by the Judge, a topic which I did not address as fully as that of targets.

In the comments section Marjorie replied:

You said "Firstly it goes without saying that rape is an horrendous and vile crime. Women (or men for that matter), do not "ask for it", and the victim is left seriously damaged."

Unfortunately one of the reasons that rape convictions are so low is because that *doesn't* go without saying. There are still many people who think that women who wear revealing clothing, drink or who have any sexual history are 'asking for it' or contributing towards the attack.

Firstly I stand by my statement. Rape is an abhorrent crime and no one, male or female, asks for it. This is a statement of fact rather than general opinion, and it would the brave and misguided person who argues otherwise.

Marjorie then goes on to comment:

For a Judge to give directions which specifically remind the jury that wearing attractive clothes, drinking, flirting or having had sex in the past do *not* constitute consent or allow consent to be presumed are wholly reasonable. *

Let us picture the scene. A Jury is listening to the closing speeches of the prosecution and the defence after having all the evidence placed before them. The prosecution have made the point that just because the girl was drinking, wearing revealing clothing, and had flirted with the guy, did not mean that she would have consented to the sex. The defence on the other hand put it simply that the defendant was out drinking, he flirted with a girl who reciprocated, and they had consensual sex.

Is it then fair for the Jury to be addressed by the Judge who includes in his closing statement an endorsement of the prosecution’s closing speech?

The real crux of the matter here is how do we secure more rape convictions? The differing opinions are analogous to the raging debate on equality. Do we aim for equality of opportunity, or equality of outcome? The target and direction camp are similar to the equality of outcome proponents. The line goes “There is a problem, and the way to deal with it is to alter the process so that we achieve the desired outcome. Therefore as we have a difficulty with perception surrounding rape cases we should weight the process in favour of the complainant”.

This suffers from a huge flaw, especially when applied to the justice system, in that Lady Justice is blind. There should not be an altering of the system to try and achieve a desired outcome one way or the other. The only objective should be that the evidence and trial are presented to the jury in a manner which is fair to both sides. It is submitted that the only fair way to achieve a higher conviction rate is:

1) Substantially increase funding and training so that every area has a committed sex crimes unit with specially trained police officers who know how to deal with complaints properly;
2) Spend more money on educating the public that no one asks to be raped and that behaviour such as flirting, drinking, and promiscuity does not necessarily mean that the sex was consensual, or that the rape was in some way deserved;
3) Work with the media to move away from the myth that rape is only ever committed by strangers down dark alleyways.

The first point will do the most to improve the number of rape convictions, closely followed by the second. However the real problem with rape is that it is primarily a crime where it is one person’s word against another. There will always be a problem in proving rape, but at least with the above system we stand a chance of improving things without damaging the impartiality justice system. I don’t think the point can be better illustrated then by this quote from Blackstone:

“Better that ten guilty persons escape than that one innocent suffer”

There was also another comment from Recorta:

Rape and perceptions of rape are still a BIG problem regardless of what BoB believes is obvious. *

What I believe to be obvious, as stated above, is that rape is a terrible crime and that this goes without saying. I did not at any point claim that rape is not a big problem.

A standard set of guidance to be issued to the jury prior to the trial's start would probably be the best way to avert the sort of problem you seem to be envisaging, where after a defence has been made a judge might appear to subtly undermine it by giving 'guidance'. *

So under this formulation the Judge gets the boot into the defence’s case before any evidence is given. The subtext to any direction such as this would be “I totally disagree with anything the defence will submit on these points and so should you”. Again this is interfering at the wrong end of the process.

I hope that this has been helpful to state my position clearer and if anyone would like to express a different point of view then I would be more than happy to put their reply up as a guest post. Please let me know at the e-mail address to the right.

All the best


*All comments are reproduced from the comment list found below, and are unchanged except for some spelling mistakes.


Lost said...

Bob I agree with you that the jury warning before, is completly wrong and would yet again give rise to a substantial Art 6 challenge.

Judges are educated to a very high degree about sexual offences cases, they receive lectures from lawyers, psychologists etc trying to dispell myths. Judges also have to take a test in order to sit on serious sex cases.

The rape conviction is low, sometimes people do not report rape for a long period after, the CJA 2003 especially s 120 is often used on this, where the complaint has to be made in a "reasonable" amount of time, when the Coroners and Justice Bill comes into force any complaint will be admissible to the jury.. now thats quite interesting..

BTW how much did you spend on your new suits? I also need a new one I feel !

Bar or Bust said...

There is a rather nice legal outfitters just down the road from Chancery Lane Tube station which has sale on. All of the suits in the sale are £195.

I find it interesting that every complaint will now be admissible to the Jury, regardless of the length of time between the alleged offence and the reporting of the complaint. How will this improve the situation and do anything other than lead to a higher incidence of unsuccessful convictions?

Law Minx said...

My Dear BoB

I feel I can make no comment with respect to the law surrounding rape at the moment, having just come from the blog of Ms Travis the Trout, whos prfound and honest post on the matter bears reading and much by way of thought.
I also recall my experiences as a midwife in this area, so I do not believe I can offer objective analysis.
I am now going off to shout a bit, because I am seriously bloody ANGRY.....

Bar or Bust said...


I too have read Travis Trout's entry about this and her story is truly shocking, but told with a dignity which I find amazing.

She too agrees that targets are not the answer to the problem of low conviction rates. I think my suggestions are fairly similar to her's as to the possible solutions.

What are you angry about?

Bar or Bust said...

I realise that the question may seem a bit dumb but I wanted to make sure that it was not me in particular that had made you angry...

Law Minx said...

My Dear BoB,

Its not you, not at ALL. Having read TT's post, and recalling my own experiences as a midwife,having to go to a police station at the behest of a pregnant client who worked as an escort, but who had been badly beaten and raped where I witnessed treatment beyond that which may be euphemistically labelled 'disgusting' purely because she happened to be 'known' to them, my blood began to boil. Legislation may come in RAFTS in this contentious area, but nothing will change until the myth of the 'perfect rape' is shattered (i.e victim is a virgin/attacker is a stranger/victim bravely resists, then immediately reports her assault to the police)once and for ALL, nothing is going to change; in fact,legislation/changes to the rules of evidence and procedure or no, I believe matters are only capable of getting worse.......

recorta said...

BoB, I suppose I wasn't clear enough in what I said, but your glibness is generally unjustified. Stating that rape is a horrible crime is not the same as stating - or accepting - that perceptions of rape are a big problem and need to be combated.

I think when you think of rape, I suspect that underneath it all you are thinking of stranger rape, which is so obviously vicious, violent, and unprovoked that few could think otherwise. You are NOT thinking about roughly 90% (probably more) of actual rapes (most of which would NEVER come to a court in the first place), which are much more complicated, with accuser and accused normally known to each other, previously on familiar terms, even previously dating or married to one another. In these cases, sympathy for the accused can and does run high. Therein lies one of the major problems with obtaining rape convictions and appreciating the true scale of sexual assault in this country. In THESE circumstances, a juror may well think, "They were good friends. There was just a bit of a misunderstanding... She's changed her mind after the fact... Does the guy REALLY deserve all that time in jail?" In such a circumstance, your statements that guilt and criminality are "obvious" don't apply... If you - or anyone else - continues to be in doubt, try reading "Yes Means Yes"...

That being said, I think that - in reality - the justice system as it currently stands is not the instrument by which to try and change society and treat these problems. It just happens to be the sharp (or, I suppose, currently blunted) end of the stick with which we might actually be able to do some small thing to combat the problem. I'm no fan of Harman, but I see why, faced with a seemingly insurmountable problem, she's chosen to recommend these sorts of changes.

Bar or Bust said...


If you actually read the article you will see at the numbered points I have both identified and acknowledged the problems which preconceptions cause in rape cases.

I am being neither glib nor am I only taking a very simplified and naive vew of what rape is. I have worked in the criminal justice system, including on a full length rape trial, and I understand exactly how difficult it is to secure rape convictions, especially in the case you describe.

My point is that these suggested measures won't work to improve the overall situation, they will only increase the chance of a miscarriage of justice. And if the point that you make about jurors is correct (which I agree it generally is), then no amount of directions by the judge will improve things.

Finally I have not made any statements about guilt or criminality being obvious. If you can point to these then please do. I know that there is a problem with convictions rates, but I don't agree that Harriet Harman's suggestions are the solution.

Odysseus said...

An interesting post BoB. A few quickly considered thoughts. And as such, just to be contradictory, here goes...

Apologies in advance for the use of he/she. It is used in such a manner only to make easy distinction, and to follow the statistics of the vast majority of cases.

There is certainly some room to argue the toss about judges being able to give directions to the jury about the alleged victim's behaviour. However, the judge is not agreeing with the prosecutions events per se, nor directly contradicting the defence.

The defence will, as rightly you point out, put forward the argument that the defendant "was out drinking, he flirted with a girl who reciprocated, and they had consensual sex". However, my issue is that the point of such an argument is to make the jury infer from her behaviour that she consented. In other words, the more behaviour is along these lines, the more likely the chance of having had consensual sex. The defence will suggest that the behaviour she exhibits is indicative of someone who would have given their consent in this circumstance. The behaviour is not being put forward as actual consent itself.

Therefore, when the prosecution counter this by saying, as they would, that she did not consent. I emphasise here that the issue is she did not consent. This is the crux of the issue; their line of argument will be that her behaviour did not equal consent. This will be reinforced by the judge, that flirtatious behaviour does not itself equal consent. However, I feel that this does not undermine the defence, as the defence case is that consent is likely based on the aforementioned behaviour. Thus, whilst they are not saying that the behaviour equals consent as a matter of fact(and are therefore saying the same as the judge, albeit skewed to their advantage), they are saying the behaviour is an indicator of likely consent.

Apologies if I have not made this as clear as it could otherwise have been. After having my dissertation first draft shredded by my supervisor and attempting to rectify it all in one go, I may not be on top form.

Your wonderful mooting partner said...

I want to pick up on just one thing. I'm in agreement that dressing provocatively/drinking/being outrageously flirtatious in no way equates to consent or justifies the act.

However, I will say it certainly plays a part in explaining how the set of events came about. It also goes some way to explaining why this person became a victim of rape over somebody who did't but was in the same social situation (i.e. in a club/pub/whatever).

If the victim hadn't have dressed/acted/drunk how s/he did, is it reasonable to say that his or her chances of getting into that situation would have been reduced?

My answer would be yes. But again, this is in NO WAY an excuse for such a heinous crime. Perhaps it should be more of a warning, for people to take into account so as to avoid falling into these situations. Of course people have every freedom to dress/act/drink as they like on a night out, but that should come with responsibility and awareness and to be mindful of how your behaviour is likely to be interpreted by others.