Monday, June 18, 2007

Anyone else see the holes in this?

Looking at the headline from the Guardian, you would be forgiven for thinking the government was actually addressing the woefully low conviction rate for rape. Actually the bill has been watered down ofer and over again. Here's what we're (possibly) getting:

1) Expert witnesses allowed to explain in general terms about rape victims and their common behaviour patterns.

2) An automatic right to use the alleged victim's videotaped interview with the police in place of her main evidence at the trial.

3) Allowing the jury to be told of any occasions when the woman confided in someone else about the rape .

Now (1) might do minimal good if the right well-trained experts are called as witnesses, in practice it'll probably just start up a market for phoney "expert" witnesses. What's the better the rape "experts" will be guys? (2) is presumably intended to deal with victims who later retract their accusations, a problem which would arise much less if victims were believed and given support. (3) Is actually not a law change, that already stands as of a ruling last year.

Maybe we shouldn't be ungrateful but it's way short of what is really needed to address the situation:

1) Specialist rape trauma centres in all decent-sized policce stations nationwide, staffed by women out of uniform who have had extensive training in dealing with that and equipped with medical equipment necessary for preparing physical evidence.

2) A major advertising campaign to let people know these centres have been set up.

3) Training in dealing with rape reports and sensitive referral where appropriate for all police.

4) Clarification of the existing law that says the defence need to prove consent and NOT vice versa. Judges who counsel otherwise should be thrown out.

5) Jurors should be screened and rejected if they believe that women can be responsible for their own rapes if they dress provocatively/flirt/engage in preliminary sexual behaviour/carry condoms/have a history of promiscuity/get drunk.

6) Jurors receive training explaining that none of those things affect whether or not a rape can have taken place. Judges who do not back up this message are thrown out.

7) A public information campaign that emphasises how rare false accusations of rape are, that reminds men that it is their responsibility to ensure they have consent and that a big new clampdown is underway.

Instead there is much moaning that there should be a level of intoxication beyond which it is assumed consent cannot be given. This might solve a few cases but for me it would be a weird rule to have and would probably lead to the "she wasn't drunk so i can't have raped her" defence proliferating.

What does anyone else think?


cath said...

Hello & thanks for the comment! I take it you know about this blog on the same general subject:

Sorry to go slightly off topic!

Paul said...

I still don't fully understand this issue of the man being required to prove he has consent. I understand it in principle, of course, but I do not understand in practice how this could/should work. Perhaps this is a good topic for discussion on a post like this?

In situations where a man takes advantage of a woman's drunkenness to force himself on her I understand how making it his obligation to prove he has sought consent will make it easier to convict him of rape. Clearly a good thing.
But I can think of other situations that aren't so clear. A couple in a first date situation - and please bear with me here because I am trying to be constructive - let's say they're equally enebriated and they've had a couple of bottle of wines over the evening - both aware, both equally attracted to one another, both a bit tipsy. What kind of proof should a reasonable man (I assume they do exist!) be able to present in a court of law to indicate consensual sex has taken place? This is the part of the law we are discussing - the part I don't understand.
What is going to constitute proof of consent in court?
Is this a verbal contract? If this man does not want to risk a jail term, a lifetime of social stigma and damaging the woman in front of him he's going to want to be very sure - and quite rightly so. So the question is, how do you prove it to a jury?
I see how fear of prosecution on these grounds might deter sexual predators in such a situation - and that's got to be a good thing. But what about someone who is not predatory - perhaps he is even being actively seduced - what should he responsibly seek as proof of consent? I'm not asking about the clear-cut situations; I'm talking about the borderline cases where it's not clear.
I hope this doesn't elicit a sanppy response from you, because I think it's a reasonable question.

It's safe to assume Mr Cru obtained your consent last time you had sex, but how would he prove it in court without resorting to something like "Well it's a long term relationship and she gave consent the last time, so I assumed it was okay this time."?

staghounds said...

A few ideas, from one who prosecutes rapes for a living.

Physical evidence like DNA is less og a problem than one might think. Nearly all rape cases that come to trial are ones where the occurrence of sex is either not the issue or it happened long before the report. Very few cases indeed are ones in which the rape is BOTH reported promptly enough that physical evidence still exists AND in which the defendant does not claim consent as a defence. Not to say evidence collection isn't important, but in gross not that much so.

The police training happens. Whether individual officers make use of it is another question.

The MOST effective tool of proof in consent defense rape cases is statements of admission by defendants. As I understand the British practice, the police are not permitted to question suspects, even out of custody, without identifying themselves. And not in custody without a lawyer.

Follow along with me here. Rapist has just committed his crime against victim. He knows her (as they usually do) to some extent. HE BELIEVES HE HAS GOTTEN AWAY WITH IT. He knows that most rape victims never report, and he believes that this girl whom he knows won't.

So, this case is a loser. If it's her word against his, it's a not guilty.

Imagine that the police, instead of alerting rapist that he's suspected of the crime, instead have victim call him on the telephone. And say something to him along the lines of "I told you no, I can't believe you made me do that, I thought you were my friend." Almost every time, a genuine rapist will admit what he's done TO THE VICTIM. But this investigative tool is denied British police.

And the rules need to change about interrogations. If the police have to tell suspects what they are suspected OF, at the interrogation stage, what's the point? They should be able to ask, "What did you do on Tuesday, May %" without further information. If he was having consensual sex with victim, he'll say so. If he says "I was home alone all night", there goes his consent defence.

As far as "proof of consent", my state's laws are "without consent", so that we have to prove only that consent was not given and that the defendant ad reason to know it was not given. The problem is that jurors seem to accept some level of conduct as being an indicator of consent. As do lots of people- really, how many times in most of our personal lives has consensual sex been preceded by explicit request for and grant of permission?

Jurors will ALWAYS say that they won't hold a victim's conduct against her. Some of them are lying when they say that.

Unless you trust the other person entirely, get consent in writing. Face it- if you need "being caught up in the moment" to get a yes, you probably don't want that yes. If it can't be given in the cold light of day, it probasbly isn't really yes at all. If you don't want to do it enough to take 5 minutes to write yes down, then don't do it.

False accusations of rape are not the only big problems one can get from a bad decision.

And finally, remember that much of this advice is totally wasted. Sadly, most "consent defence" rape victims are doing something- or lots of things- that increase their risk. Rapists do not generally prey on sober, strong, clear minded, articulate, puritan targets.

We cannot legislate wisdom any more than we can legislate kindness.

Cruella said...

Really interesting stuff, thanks for all your thought. I like the idea of the police being able to monitor a phone call. In general I don't like the idea that they can effectively "trick" people into confessing. Got to be worth a try.

Right now the law in the UK is that the burden of proof for consent cases is with the defendant. In practice however this is never practiced and cases are frequently thrown out by judges when they see that it's a matter of her word against his...

Definitely something should be done.

Paul said...

Thanks for the long reply - it's always interesting to hear from a legal professional, especially when non-legal people are discussing changes to the law.

I must admit, though, that your advice about gaining proof of consent in writing really troubles me. It troubles me because it's sensible. If I truly have consent and I should be willing and able to write it down before proceeding as a reasonable precaution against any future claim against me.
The problem is that to me we're getting into the kind of legal territory that has given us 'Warning contents hot' labels on takeaway coffee cups and 'Do not use in the bath' labels on hairdryers. We live in a legal disclaimer culture - do we want to take this into the bedroom as well?

Cruella said...

The consent form thing poses a couple of problems - largely the same ones that regular consent cases already.

The one thing I don't think is a problem is the idea that gaining consent or a form signature can "spoil the mood". So can putting on a condom or wiping up the glass of water on the bedside table that you've just spilt.


1) People being made to sign under duress.

2) People being asked to sign when they're drunk or incapable of making such decisions.

3) People signing then changing their mind.

4) People signing and then effectively discovering they've given carte blanch to some weirdo to do whatever horrible things they want - including in fact raping them...

It's a minefield really but I do think if you're too shy, awkward or unlikely to get a positive result if you expressly ask for consent, you should think twice about going ahead anyway.