Lawyers this way! What realistic reforms could we make to rape laws?

chaos Am happy to stand corrected on conviction rates for rape from reported incidents of rape. Definitely not an expert in this field. And I would really prefer to be wrong in this instance.

The Guardian seems to suggest conviction rate is 7.5 % in the article below (in the amendments at bottom of article) for 2015- 2016.

www.theguardian.com/society/2016/oct/13/reported-rapes-in-england-and-wales-double-in-five-years

"As such, the conviction rate in 2015-16 was 7.5% of recorded allegations.."

Its not terribly encouraging, is it.

And that figure also does not take into account unreported rapes...

However if attrition rates are ignored, the conviction rate is higher - 58%:

www.theguardian.com/commentisfree/2012/mar/19/myths-about-rape-conviction-rates

Thanks for pointing that out Chaos

Sorry - I meant brilliantmistake not briliantmind. Trying to juggle real life with mumsnet!

Otherwise surely its a license for men to hurt women and for a man to say "I watch lots of porn where women get hurt and so I thought she wanted it and that's reasonable?"

I think this has crept in.

Chaos we are awaiting to hear from brilliantmind which trials he refers to, where defence teams argue medical sexual injuries are self-inflicted. Watch this space...

My point - and I am trying to be pithy - is how can a defendant successfully argue he has a reasonable belief that a woman consents to activity which results in pain, bruising, bleeding or other medical trauma or injuries? Especially if he doesn't know her?

The reasonable bystander would argue that in most cases (not all) this belief is unlikely or unreasonable.

So a man's defence team should not be able to argue or put forward a line of questioning that suggests a woman chose to be injured as part of a defence to rape except in very specific, tightly drafted circumstances.

Otherwise surely its a license for men to hurt women and for a man to say "I watch lots of porn where women get hurt and so I thought she wanted it and that's reasonable?"

Are the posts about self inflicted injuries from actual trials/real cases? Sorry, I'm not clear from the posts.

I know the rate from report to conviction is often corrected to reflect those actually prosecuted and I know the former is useful. However it's interesting that on reading it seems the prosecution conviction rate for rape isn't particularly low in relative terms, and when considered alongside comparable crimes higher than some. Juries tend to convict at a higher rate where there is a certain type of evidence, eg, having indecent images of children - there is clear physical evidence, likewise drug possession etc. When it comes to having to factor in thinking processes/intentions conviction rates are low, so eg attempted murder conviction rates are lower than rape.

Of course arguably attrition rates are important - very important overall without argument - but also in terms of which rape cases are getting before juries and theregore how meaningful comparing prosecution conviction rates is.

But I too think sexual injuries where there's a rape allegation puts it with the physical evidence type of case. I linked here or another thread work beginning to look at the links between porn and sexual violence for young people. It'll be interesting to understand more about the younger generation.

Pinky222 A woman can bring a claim for rape in the circumstances you describe.
Though whether a jury will convict is a different matter - because the prosecution would need to show that the man did not reasonably believe she consented to that act, rather than "normal sex." That has been shown to be an extremely high threshold.

It seems from what brilliantmind is saying, that if she suffered injuries as a consequence of what you describe, pinky222, this would neither prove or disprove consent and the defence can have a field day saying she inflicted those injuries on herself!

As shown in this thread- showing that a defendant did not have a reasonable belief in a woman's consent is extremely difficult and partially why the conviction rate for rape in the UK is 5.4% or thereabouts.
In what other crime would this conviction rate be acceptable??

My point was that if brilliantmind is correct- that defence teams routinely challenge medical evidence of intimate injury on the basis that they are self-inflicted, then I am not sure how women can ever succeed in claims.

My view on reform would be that medical injuries (including bleeding) should be given much greater weight. I cannot believe I even have to state this.
As an absolute minimum, where these injuries occur in situations of multiple sexual activity or between strangers or near strangers, and where rape or sexual assault is alleged, this evidence should be given special status and juries should be directed to treat it as such. If not strict liability, could the evidence of injuries at least partially reverse the burden of proof? So that where there is evidence of these types of injury, a defendant will need to jump over extra hurdles to show his reasonable belief she consented?

Why should a man's asserted belief in her consent (basically "his word") trump a woman's physical injuries diagnosed and documented by a medical professional in this field?

And I'm keen to hear brilliantmind's views on what a "normal injury" to a woman is during sex.

Am I understanding this correctly.... Consent overrides injury? So a woman who consents to (what she assumes is 'normal' sex) gets anally raped, for example, but would be prevented from pursuing the case in court under the current law? Please tell me I've got that wrong

That said, a normal 'injury' during sex would not lead a woman to allege rape, she'd put it down to being a bit overactive, so a man wouldn't have to be too concerned over a small bruise during active consenting sex. But, if she alleges rape, then yes, it's really going to matter (and rightly so). A defence team would easily suggest a wound was self-inflicted. That is NOT apologist, it's just what a defence team would do.

Brilliant mistake please could you explain what you mean by this. How does a rape defence team suggest evidence of intimate wounds is self inflicted??

That the woman had sex and afterwards went on to bruise or lacerate her own genitalia in an attempt to frame the defendant?

Or are you saying that by agreeing to sex at all, a defence team will argue that she consents to any injury though sex because sex, through the male lens, is "rough" and women simply have to put up with injury as a consequence of sex (almost akin to the principle of volenti non fit injuria ) ?

How exactly is it argued that an intimate wound to a woman is self inflicted?

If I alleged I had been punched by a stranger, my injuries would be assessed, but it is highly unlikely that a defence team would be able to run an argument that I had inflicted those on myself to make a false allegation. But if a woman has sex with a stranger or near stranger, physical injuries are to be considered self inflicted???

If brilliantmind is correct that defence teams do this in rape trials, (and he supports this) I think I'm beginning to understand why medical evidence of injuries (even in sex between one woman and multiple men who are near strangers) is ignored....

Because female intimate injury is accepted as the norm or deemed to be caused by herself and is not, apparently, incompatible with the man's reasonable belief in her consent.

My view is that by allowing this line of defence, the law enshrines even consensual sex as a potentially violent act which can reasonably cause injury to the woman.
Most women would say that is wrong - that there should be a principle that consensual sex (in general) should really not cause physical injuries.

No wonder the conviction rate for rape is so low.

Ok sorry for misunderstanding Brilliant. And for sarcasm.

I'm not defending that, just explaining it.
Thank you.

Reach around your partner and touch her breasts because you're in the mood? It's potentially sexual assault.
Stroke your husband's inner thigh to turn him on? That is potentially sexual assault to.

Because we assume they are going to be ok with it or say no. But saying no is after you've done it, so you've already assaulted them if the answer is no. This happens every day but 99.9% of instances will just be dealt with by 'not in the mood right now'. When this happens with a new partner though, the risk increases. When you date a new partner and lean in to kiss for the first time, you better be sure it's a welcomed kiss. If you kiss then touch her, you better sure the touch is welcomed etc... These are milder (for want of a better term) instances of where people misread. When you are a famous celebrity and the types of sex you engage in are far more casual than usual, that becomes their defence... that is usual for them to be in a bedroom just hours after meeting and they get easily confused about the signals. I'm not defending that, just explaining it

Oops, yes.

Brilliant, I appreciate you are trying to contribute so I'm sorry to pick on your words. But oops yes in response to realising you used a terrible example is very flippant. Not because I'm sensitive or emotional discussing rape, because it matters more than that.

Oops, yes. If someone is asleep they are incapacitated, unable to consent so in most cases it is rape.
The reasonable belief clause however opens up the defence that someone assumed it was still consenting if they believed the other person was responding whilst waking.
This situation also exists when a man or woman kiss or touch each other without asking permission, or reach around in bed and touch their partner sexually without asking permission... That is sexual assault, but it is a common behaviour amongst consenting partners who do not expressly give that consent.
This is why the reasonable belief clause is both good and bad. It allows for the situations where consent is not expressly given but inferred sometimes mistakenly, but it then also gives others the chance to claim 'oh but she SEEMED to be ok with it' because she didn't protest enough or at all. Somewhere between both of those is the massive grey area that is used by defence teams and used to create that reasonable doubt in the mind of a jury.
That isn't to say it is right or wrong to have doubt, but it's definitely exploited in many cases.

Brilliant can you come back and explain what you meant by your post about penetration while asleep?

Yes. And this amazing new evidence allegedly came to light after Ched's family offered a cash reward for information.

That’s right. But that meant nothing to the Ched fans. I had numerous arguments with twitter folk who were very happy Ched had finally been ‘found innocent’ (same as not guilty apparently), and that the ‘bitch’ should go to jail for lying.

There are similar tweets from the rugby case too.

And if you read any daily fail comments on the rugby case and subsequent rallies, you will lose all faith in society.

The following morning, in a sleepy stupor, the male elects to penetrate the female and does so for a small period of time.
The female awakes and no longer shares the desire to have sex with the male, the male accepts her decision, but the female objects to the fact he has already penetrated her and alleges rape.

This is not "complex". It is rape.

This 'new evidence' was two men that the victim had slept with (and consented) one before the rape and one after, and they both said the description of the woman having sex was very similar to that of the rape (saying to fuck harder if I remember correctly), and that basically told the jury that this woman clearly wasn't raped

Yes. And this amazing new evidence allegedly came to light after Ched's family offered a cash reward for information.

Sorry, didn't refresh (I have obviously had this thread open half the day!

Brilliant can you come back and explain what you meant by your post about penetration while asleep?

I always thought that the Ched Evans case was overturned due to 'new evidence'.

This 'new evidence' was two men that the victim had slept with (and consented) one before the rape and one after, and they both said the description of the woman having sex was very similar to that of the rape (saying to fuck harder if I remember correctly), and that basically told the jury that this woman clearly wasn't raped

It didn't change the fact Ched never spoke to the woman. It didn't change the fact he left via a fire exit. It didn't change the fact that he didn't know this woman's name. It didn't change the fact she was filmed by other 'mates' at the window.

How very very sad indeed.

A man can be convicted of rape, and then be on trial for a different rape; but cannot have his past brought into the trial. A woman can be raped, and her sexual history is exposed (like that has ANY bearing on the rape).

How did we get to this?

I've just read this thread following on from the Ulster rugby trial thread where the whole thing has gotten me incensed & depressed in equal measure.

In the Ched Evans case my interpretation of the overturned verdict was rather than 'he was innocent' that the jury believed that he as an individual could be stupid enough to think that someone who had never spoken to him, or possibly seen him, and who was in an extremely drunken state, was able to consent to having sex with him.

I've read with interest some of the suggestions about new ways to legislate proceedings & all have their merits but also it seems potential opportunities for exploitation.

The points that seem crystal clear to my simple mind are that education on this subject needs to be addressed early on in schools. I've been really uncomfortable for a long time about the easily accessibility of porn for young people & this almost used as informal sex education which contributes to a mentality of 'I fucked her up the arse' as being a 'win' of some sort for young men.

It's a really good topic and something everybody needs to think about - how to remain fair, but try to improve our justice system.
It's pretty obvious in this specific type of case, women are not getting anywhere near a fair deal but finding a way to improve that legally is a nightmare.

Truth be told, law isn't really the answer. Behaviour is. Or more accurately male behaviour. Maybe deeper than that, is the way male's thought processes work or are nurtured to work. It's got to change.
Rape's always happened, but there seems to be a lot of influence by porn on the nature of rapes now. What was once very extreme sex is being perceived as normal, or expected and every woman is secretly yearning to do what boys are seeing in porn movies (so they think).

Brilliant The PACE is a UK act - I was talking about Ireland above, trying to outline how it works when the identity of an alleged rapist is kept anonymous until conviction. Not a lawyer though, hence the guesswork.

I started and lost this post, hope I haven't posted these thoughts on one of the other threads.