All men are not rapists
Posted by Anna Bull on January 23rd, 2007
The influential Council of Circuit Judges is opposing proposed changes in the law to boost rape conviction rates. The Guardian led with this article on the front page, highlighting the abysmal 5% conviction rate from rape trials. The judges are objecting to three points, first of all a new definition of consent to sexual intercourse defining when a woman can be considered too drunk to make the decision; secondly the use of expert witnesses, as in the US, to inform the jury how rape victims are likely to act, and finally showing videotaped interviews from when the victims first go to the police, which would show jurors the victims distress.Defining when a woman is too drunk to consent to sex, which the judges say is best left to jurors to decide, is unfortunately something that does need to be spelled out, following a case in Swansea which was thrown out of court when it couldn‘t be proved that the victim didn‘t consent to sex as she had been drinking. I would guess that this is probably one of the most common forms of rape, and the least reported. Many women would blame themselves for getting drunk, feel too ashamed to report it, or assume that it wouldn’t stand up in court (as has been shown). I doubt that changing this part of the law would change the conviction rate but it would at least send a message that just because a woman is comatose, she is not fair game.The second point, the use of expert witnesses, has been dismissed by judges as too expensive and ‘inappropriate’. Their view is that the jury has to be trusted to be able to make up their own minds - after all, this is what the jury system is all about. However, there are a lot of myths about rape in our culture, which the use of expert witnesses would dispel. One is that false accusations abound. This is wrong; there are no more false accusations of rape than of any other crime. (Why would a woman go through that?). It is certainly important to protect the accused, and our justice system rests on the assumption that it is better to let one guilty person go free than to convict one innocent person; we have to err on the side of extreme caution in making convictions. However, most people don’t know much about rape; on TV it happens on a dark night in a remote place or after a break-in, while in reality it happens in someone’s home, with someone they know. Rape within marriage was criminalized as recently as 1992, as marriage was assumed to give men sexual access to their wives - whenever they wanted it.
Tell me if I’m wrong, but I get the feeling that there is a fear of making rape convictions easier to obtain because most people know a rapist, and men especially are scared that since rapists might be their friends, their colleagues, or their golf partners, then they themselves might find themselves accused of it, as they don’t see what the is different between themselves and the rapists they know. But the difference is there and it is clear. People know if they are forcing someone into sex. The vast majority of men would never, ever, do this - so why protect those who do?
PS also check out intelligent commentary on http://www.nouse.co.uk/2007/01/23/government-proposes-to-redefine-sexual-assualt-to-secure-higher-conviction-rates/
Leading legal commentator Marcel Berlins has this to say on the subject:
We are not allowed to discover what takes place in a real jury room, so we can’t be sure that the factors jurors take into account are correct in law. There are indications that myths and prejudices play too prominent a part. Some jurors in the Consent programme seemed to pay more attention to their own past experiences than to the evidence; others were unduly troubled by the woman’s failure to report the rape until six days afterwards, though there are good psychological reasons for such delay. A survey in November 2005 by Amnesty International produced worrying results. More than a quarter of the public - and therefore of possible jurors - still believes that a woman wearing sexy or revealing clothing is wholly or partly responsible for being raped. Similarly, she is responsible if she was drunk (30%), or had not said “no” clearly enough to her alleged assailant (37%). But who, if not the jury, can better decide whether or not there has been rape? Certainly not a judge alone.
Filed under: crime, society, ukpolitics on January 23rd, 2007
- “This is wrong; there are no more false accusations of rape than of any other crime.”
Do you have a source for this? How would anyone know this, anyway? If 95% of rape cases do not result in a conviction, this would suggest that there certainly are more false accusations of rape than other crimes.
- “Tell me if I’m wrong, but I get the feeling that there is a fear of making rape convictions easier to obtain because most people know a rapist, and men especially are scared that since rapists might be their friends, their colleagues, or their golf partners, then they themselves might find themselves accused of it, as they don’t see what the is different between themselves and the rapists they know.”
You’re wrong. As you say, the vast majority of men would *never* force anyone into sex, and for that reason, they would not be happy being friends with someone who they knew was a rapist. Do you really think most men happily accept that some people they’re friends with are rapists?
There is a fear of making rape convictions easier because of events like the one mentioned in the blog you link to at the end of your article, about “the recent case of a man who spent three years in prison after being falsely accused”. The thought of being easily convicted or even more readily accused (which is enough to ruin one’s life) because the chance of conviction is higher is terrifying.
Hi Sam,
You’re right that its impossible to know the rate of false convictions, but out of the small number of convictions there are, the rate of false convictions is no higher than any other crime - check out Helena Kennedy’s book Eve was Framed. However, I disagree with your point that because 95% of accusations that don’t end in a conviction that means there are more false accusations. It just means that it is very difficult to convict, which is as it should be, but measures like having expert witnesses could make the conviction rate higher without increasing the risk of false convictions. More convictions does not automatically mean more false convictions, which is what you seem to be assuming.
I also agree with you that most men would not happily accept that someone they’re friends with is a rapist, but you can’t help it if its a colleague or relative or casual acquaintance.
Despite the clear sense which you are talking sam there is a legal problem which my generally liberal brain cannot deal with. That is that if someone committed a crime, say a woman punching a man, then the claim ‘ I was drunk’ would not stand up in court as an excuse for behaving out of the ordinary. However there are cases in rape where that has stood up as an excuse for the woman’s consent, and I mean consent rather than mumbling, that she may even remember giving.
If men are expected to judge the drunken state of a women to that degree before they can be clear on their stance in court then they should really be getting the fear.
Anna, my point about 95% of cases not being successful was that, in light of this, you really can’t have any idea what proportion of cases brought to court are false, regardless of what Helena Kennedy says.
More convictions necessarily DOES mean more false convictions, unless you’re arguing that expert witnesses have some sort of unique sense to give them a rate of 100% accuracy in very complicated trials. I accept that this doesn’t mean that they’re not a good idea, the rate of false convictions relative to real ones could be small enough to be acceptable, but a) wrt above, I don’t see how we could know that and b) I just object to your implication that expert witnesses are infallible.
As for the Guardian CIF article you have appended, I remember reading that at the time and being shocked that 30% of the UK can think a woman responsible for her own rape if she was drunk. I checked the source (http://amnesty.org.uk/news_details.asp?NewsID=16618) and, really there is very little to take from this report due to its incredibly ambiguous wording. “Partially responsible” is *not* the same as responsible and does not mean that a crime was not committed or that the man was not a rapist. It is clear how many would argue that a woman is “partially responsible” if she is alone in a dangerous/deserted area (scenario f) - it doesn’t mean that they think she deserves to be raped or, more importantly, that they wouldn’t convict the rapist in court. So I don’t think that Berlins’s argument about the flaws of a jury being drawn from this pool of people stand up.
Calum, I’m not really sure what you’re saying.
Calum,
You say that being drunk has stood up as an excuse for the woman’s consent - really this means that because she was drunk, she was not in a position to say that she didn’t really consent. It comes down to the age old problem of the evidence not really being clear.
I totally agree with the use of experts, however. It’s being introduced for victims of domestic violence, and many of the typical post-rape aspects of behaviour (a long delay in reporting, feelings of self-blame) are misunderstood by juries because most of them don’t know what it’s like to be raped. Educational experts in the US, by and large, simply tell the jury that it’s perfectly normal to not report a rape for quite a while, and this helps to dispel the myths about it in the general public. The reason why the judiciary have voted against this measure is (I suspect) because of the legal system’s (unjustified in my opinion) fear of psychologists because the science is so new.
See my dissertation work in progress for more on this issue….