Oxford Union president rape allegations - alumni open letter

Flora - that is such a simple but brilliant idea: if the accused's defence is that he believed he had consent, he must take the stand to explain why he believed that, and the prosecution can then have the chance to cross-examine him. Surely that's worth a letter writing campaign to MPs, the DPP, the Home Secretary.

It the final analysis, he was absolutely right not to step down. Those who stated that point from the start of this thread were absolutely right too.

I like the idea that the defendant must speak if belief in consent is his defence - some people think rape is a "he said, she said" situation, whereas in the current court set up it could be "she said whatever she could to withstand cross examination; he was never cross examined"

Whilst I think enthusiastic consent should be taught in PSHE, I don't think it's possible to put it into law as there's no parallel elsewhere. Perhaps "what steps did you take to ensure that you had her full and free agreement to sexual contact"?

Dervel if you accidentally kill someone, you would not be convicted of anything. Accident is a complete defence. All crimes need an element of mens rea - criminal intent. Manslaughter is killing with something less than the intent required for murder and there are a number of circumstances where this arises but not when there is an accident.

Ignorance of something being illegal is not a defence but that isn't the same thing as ignorance of whether someone is consenting.

With rape, the required criminal intent is intention to have sex and lack of reasonable belief that there was no consent. This is a statutory provision so the common law is not really relevant.

The law could be changed to improve the chances of conviction. LRD mentioned requiring enthusiastic consent. ATM the Crown must show the defendent had no reasonable belief that the complainant consented. They can take into account any steps the accused took to ascertain consent. Currently, the accused can raise his defence by his lawyer cross-examining the witnesses. He doesn't need to give evidence himself. IMO this should be changed so that an accused cannot claim consent as a defence unless he gives evidence and the requirement should be that he demonstrates why he believed there was enthusiastic consent. A "yes" instead of a lack of "no".

I have been on a jury (not a rape case) where we took a long time to reach a decision. We had no question that the crime had happened to the victim, our concerns were around whether we could say that those in the dock were the ones who committed the crime beyond reasonable doubt.

Good post.

And "innocent until proven guilty", as I understand it, simply means that unless proven guilty of a crime, society must treat a person as if they are not guilty of such a crime ie as a "full citizen".

As no one is ever proven innocent, perhaps "not guilty until proven guilty" would be a better phrase, as those are the two verdicts.

Absolutely you can't it's more the point that harm has occurred. If that was the benchmark rather than quibbling over wether someone thought they had consent or not it would be easier to establish that a criminal act had occurred. After all ignorance is not supposed to be a defence in the eyes of the law.

I am also only spitballing here and throwing some ideas in the air. If it was as simple as that I suspect far cleverer people than I would have corrected the flaw in our legal system.

What is interesting to me is how people are quick to presume the innocence of the man in question on the grounds that any proceedings against him have ceased. If that is a reasonable assumption it is also therefore logical to assume that the women who made the initial claims must also be innocent of lying as the police and cps are choosing not to proceed with charges of trying to pervert the course of justice or the wasting of police time.

They should after all enjoy the same benefit of the doubt as he does, for precisely the same reason but they don't. In the end I think there is an unconscious but very real and very dangerous bias against the victims in cases such as these. We need to urgently examine this bias as a society and dismantle it as when we do the legal world will fall into step.

I know this sounds counter intuitive but unless someone is charged and convicted of either rape or falsely accusing someone of rape the individuals must exist in an almost quantum uncertain state as far as we the media consuming public are concerned. To make presumptions on either side of the case requires an assumption the other party must be guilty of criminal behaviour.

I suppose the case of the hotel worker who had sex with the wrong woman would come under that, Dervel - sexual assault by negligence?, where going to the wrong room was negligence.

(Disclaimer the above doesn't mean I found the defence in That case credible)

It's hard to make a direct parallel with manslaughter as it's not possibly to consent to your own death or injury.

FloraFox excellent post, particularly the part about nuance. It has helped me frame my thoughts on the subject much more clearly. It leads me to a question though. In terms of common law and concepts of harm and loss, in such cases as when a man had reasonable belief of consent harm has still occurred. Now if I accidentally kill someone through fault but not intent I would be guilty of manslaughter. Now in the case where rape occurs and harm is caused shouldn't the question be over the harm and not intent?

I appreciate that is not how the law is currently framed, but as it stands we are not protecting people from harm, and that after all is a cornerstone principle of why the law exists at all.

Unfortunately a lot of the population think like jane- that the lack of a conviction means the woman was making a fake allegation.

We need to educate the whole population that this is not true.

comments from various MNers:

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If he's completely innocent why on earth should his life as he knows it change completely to accommodate a false accusation?

That is UTTERLY unacceptable in my mind, to be forced out of a job simply because of a (false) accusation

Massive publicity before all the evidence has been collected doesn't just cause huge distress for innocent people on the receiving end of a false allegation, it also highlights that some women do lie.

My sympathy lies with the victim, in this case someone who was falsely accused of a vile crime

I would hope most mumsnetters feel utterly sorry for the falsely accused man who hasn't even been charged

If any of us were falsely accused why should we lose all we had worked for
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the double standards here are emormous. yes the Union president is legally innocent but they same applies to his accusers. they did nothing wrong reporting his actions to the police and are not guilty in any way.

Oh, sorry, I missed your post!

I am falling over myself to agree.

I wasn't actually complaining to either of you . It was more a 'yes I agree' comment.

YY, sorry, I do know!

I was doing the highly irritating 'must repeat many times for those who refuse to read the thread' defence, and I should have said so.

It's becoming ingrained. Annoyingly.

LRD I agree that's not the issue here, I was just responding to the more general point about innocence / guilt. I agree he should have stood down.

Penguins I skipped over your post in my rush to rant. I agree with what you said.

I said that too, just not as well I used to rant about it in law lectures.

I do disagree with you (sorry!) in that I think innocence or guilt aren't the issues here.

But I think this is utterly spot on and needs repeating:

'A more nuanced point in relation to rape claims is that it is possible that both parties are telling the truth. The woman can know she did not consent but the man had a reasonable belief that she did consent. His reasonable belief may not have any impact on her experience. She may have exactly the same experience of sex without consent as another woman where the rapist had no reasonable belief of her consent.'

This is something I think a lot of people don't get, and why 'enthusiastic consent' is so important.

I've been lurking on this thread for a while. Just popping on to say how astonished I am at the stupidity of people who don't seem to be able to grasp some fairly basic points about the criminal justice system.

1. Not being convicted or not being charged does not mean a person is not guilty. It means there was not enough evidence to meet the criminal standard of proof (beyond a reasonable doubt). "Not proven" is a more accurate verdict than "not guilty".

1. People are sometimes found not guilty in criminal cases but in a civil case on the same issue found liable because the standard of proof is on the balance of probabilities. Is this a false allegation?

1. People who are not guilty are sometimes convicted, people who are guilty are sometimes not convicted. The criminal justice system exists to determine whether the person should face criminal punishment. It is not a seer of truth.

1. "Innocent until proven guilty" is an underpinning of the criminal justice system that largely affects the procedures used in the criminal justice system. It is not literally true, that would clearly make no sense. We as individuals are free to believe whatever we want. We need to be careful about expressing what we believe as the court findings are relevant for libel claims but we are free to believe someone was guilty but "got off".

I'm always astonished when people don't seem to be able to grasp these basic points.

A more nuanced point in relation to rape claims is that it is possible that both parties are telling the truth. The woman can know she did not consent but the man had a reasonable belief that she did consent. His reasonable belief may not have any impact on her experience. She may have exactly the same experience of sex without consent as another woman where the rapist had no reasonable belief of her consent.

The criminal justice system is clearly flawed in relation to sexual offences given the woeful conviction rate. Parading around shouting "well done to this boy" is beyond ridiculous and contributes to the problem.

Jane are you arguing that teachers who are accused of sexual offences should remain teaching while investigations are ongoing? At the moment (as I understand it) they go on paid leave.

Would you extend this across the board?

There is no evidence that these were 'false allegations' Jane. There is a difference between the police deciding not to prosecute any reported crime and that being an intentionally false allegation.

Also, speaking more generally, bear in mind that rape is an area where the victim can experience the crime as we would see it in everyday language (I was subjected to sex to which I had not consented) and no crime has been committed in the eyes of the law (I had sex with a woman I genuinely believed had consented).

It is not a binary position: conviction or false accusation. In between as with many crimes, there are many complexities.

'Being President of the Union shouldn't just be some shiny toy or prize for the undergrad who hacks the most.'

But in practice it is really isn't it? There are consistent shenanigans around election to positions at the Union which muddy the waters.

I can't speak on the rape allegation, but this young man has fallen at two hurdles. Trying to use society funds for his own use is corruption at worst misconduct at best. If you seek a position of leadership you should be a servant to the people or organization you which to lead. Which in this instance the service would be to step down for the good of the group.

The difference is between selfish self interest and enlightened self interest. Flipping this on its head this was an opportunity for him to show his quality. In this he failed to demonstrate any thought for anyone besides himself and his own prospects.

If he were my son I would back his choice as it stands. However I would wonder if I had failed to impart a sound ethical foundation and moral core.