Tuesday, December 20, 2005

The wrong message

Just a couple of weeks after the Aberystwyth rape case was thrown out because the victim was too incapacitated to remember the incident, the great British judiciary is again giving rapists a clear signal to carry on as normal. Apparently "I was sleepwalking" is an acceptable defence. This is a disgusting outrage, it doesn't even matter whether the perpetrator was asleep or not. Non-consensual sex took place and that's rape. If anyone ever has the misfortune to meet the perpetrator I suggest you "sleepwalk" into the garage and get a nice big axe then "sleepwalk" in and show him the sharp end of it.


Winter said...

I wonder if you "sleep-murdered" someone if you would get away with it. Sorry M' lord I have no idea how that happened, you see, I was asleep at the time.

Andy said...

If a judge is satisfied that the perpetrator of an offence, be it rape, murder, or anything else, was asleep and unaware of what they were doing at the time, then they can not be found guilty of the relevant crime. 'Actus non facit reum nisi mens sit rea' is a fundamental tenet of common law. Criminal liability requires not only the act itself (actus reus) but also the intent (mens rea).

If you disapprove of this then that is your perrogative, but you should recognise that the law as it stands left no option but for the judge in this case. And you should think very carfeully about whether you would really want to live in a society which did not have this requirement for liability. I'm certainly not a moral absolutist but I think it's fair to say that most people judge the intention to commit an offence as what is 'wrong', not the act of committing it. Do you really believe it is fair to be punished for something you did not intend to do?

Much like the insanity defence in a murder trial, I do believe that someone found to have raped someone while asleep should face certain consequences. Not as punishment, but simply to ensure it can not happen again. I don't know what the best way to ensure this would be (and I don't know what was done in this case either) but I'm sure that safeguards could be designed. As a minimum requirement, it should be impressed upon the perpetrator that he must never allow himself to be in a situation where it might occur again. Were it to happen again then I would happily agree that he should be found guilty of criminal negligence and sentenced as harshly as someone who committed rape while awake.

Cruella said...

If the guy can be acquitted of rape because of his sleep-walking problem then we have to accept that sleep-walking is, in his case, a dangerous condition which renders him unfit to live in normal society. He should be taken to a secure healthcare establishment and detained there until he can satisfy doctors that his condition no longer poses a threat to others. This is exactly what we would do with someone who was acquitted of murder on the grounds of insanity.

Instead this guy has been released without any restriction on where and when he can sleep and thus endanger others.

The message here is not that sleep-walking is a kind of mental health problem that excuses crime, the message is that rape isn't a real crime and any old excuse will do. It's disgusting.

TalkingCat said...

On the contrary, the message is precisely that sleep-walking can be a kind of mental health problem: according to the testimony of an expert medical witness and accepted by a High Court judge. I think it rather sanctimonious hubris to believe you know better than either when your sum total knowledge of this case probably amounts to no more than having read a couple of news articles.
Nobody here is suggesting rape is not a real crime and I'm surprised to see you make such a ridiculous claim.

Cruella said...

So if the guy has a serious mental health problem that causes him to commit violent crimes, why hasn't he been tranferred to a secure hospital for indefinite detention and treatment?

Answer: because we're not treating rape like it's a real crime.

If rape is taken seriously by our judicial system why do we still have a 6% conviction rate?

TalkingCat said...

I would suggest the conviction rate is so low because conviction hinges upon the question of consent. And unless we are to return to the justice of the witch-hunt, when accusation was all that was necessary to prove guilt, then perhaps due process and the assumption of innocence ought not to be dispensed with so enthusiastically.
Proving beyond reasonable doubt that consent was not given is not easy. That, I feel, is the chief reason that conviction rates are so low. It has nothing to do with society not considering rape to be a crime. On the very contrary, society reserves no greater stigma and ostracises none other more than the convicted rapist or the convicted pedophile. Mere accusation of these crimes can destroy people's lives - as those who anonymously bring malicious accusations of rape are fully aware. How careful must we be, then, in debating how to make it easier to convict.
The status quo is unjust, doubtless. Guilty men are not being convicted. Women are reluctant to press charges. Innocent men are being ruined. I believe passionately that we should be doing a better job of Justice than this. However, I do not think that society does not care, or that rape "isn't a real crime". I think it's just a really difficult legal problem - one that's best addressed by intelligent debate and inching the law forward until the rate of conviction rises to an acceptable level. Reactionary reporting in the Media and ill-informed discussion of individual cases achieves nothing.

Cruella said...

So what of the fact that 30% of the British public considers women "at least partly responsible for their own rapes"? We see case after case being thrown out of the courts on more and more spurious grounds.

And why is this dangerous sleep-walking menace to society not being held for the safety of the public in a place where he can't offend again? You still haven't answered me that.

TalkingCat said...

Well the answer is simple.
Perhaps you have already convinced yourself of this man's guilt, despite your lack of access to the testimony. The slightly better-informed jury of seven women and five men disagree with you, however, and took just two and a half hours to decide he is innocent.
In this country a judge is powerless to impose sentence when the accused is found innocent and is compelled to order their release.

Winter said...

Ok. let's say we believe his story: he really does have a condition which causes him to have sex with women in his sleep. Surely you should agree that he now be subject to at least some kind of treatment for this condition???

Cruella said...

Yeah exactly. We accept the jury's conclusion that he has a mental illness which makes him a very grave danger to the public. So we take him to a secure establishment for treatment.

MatGB said...

@ Cruella, re So what of the fact that 30% of the British public considers women "at least partly responsible for their own rapes"?, overall, inclined to agree, he's a danger if not treated, he needs to be treated, if he's not being treated then something is wrong. But, on the Amnesty thing, friend of mine, phD student who's been raped, talked a bit about her experiences here, key bit, as she read the whole report:
And while we're bringing up the Amnesty International survey - One in three people say that in certain circumstances the victim has partial responsibility for the actions, not that the rapist is absolved from all. In fact, only 8% said that the victim has complete responsibility in cases where she was dressed inappropriately/flirted outrageously/walked home in a darkened alley etc etc. Yes, this is too too much, but it ain't 30%. It's almost certainly even further skewed by the survey's wording anyway.

It's pretty hard to deny that it's safer getting a licensed black cab home than walking the quick route through the back alleys of the red light district. Anyone who chooses the walk is taking the risk and by taking the risk takes on some responsibility for the consequences. This is a long way from absolving an attacker of rape.

Her entry when she read the whole thing and said that the survey was done so badly it would get even her to allot some responsibility; I hate to admit it as a longtime supporter of their cause, but Amnesty got the answers they wanted to make headlines.

Overall, you're right, it's the wrong message in many ways, but Andy is right to point out the verdict was correct; the media distorts things so many times. Ah well.

Cruella said...

8% think women are completely responsible for their own rapes. yeah that is a really frightening figure.

30% think they're partly responsible. this 30% are dead wrong and their views are offensive and unacceptable.

all the media reports claim the "sleepwalking" guy left court a free man. there was no detention for treatment, no secure mental health unit. he went home.

the media is actually sending out the correc message: that the public, the police and the courts belive that rape is not a "real" crime and will accept any old excuse. the message is "go ahead and rape if you want to" and i'm sure there are people in the media who love spreading that message, but i don't think they're twisting it particularly.