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

Really interesting thread. Not a lawyer and not quite following all the detail here, sorry have skimmed over some posts.... but I have started to have a bit more head space for anonymity for the accused in a pragmatic way.

I can see the benefit of creating conditions where the jury might feel freer to actually weigh up the evidence and decide on reasonable doubt in a less fearful way if they had less idea of stigma in their heads.

Maybe a secondary "lesser" crime or finding... Particularly re intoxication or capacity, or not taking due care.. a wider range of remedies available to the court including non custodial sentence. Alcohol is a particularly big issue in confusing juries/anyone re consent.

Pure speculation on my part, not at all evidence based.....destigmatize being accused, make the outcome more palatable, the consequences less draconion.

(The prosecution apply for anonymity to be waived altogether in certain conditions - not just details/efit?)

it's quite complex too - they have to view at least 12 photos and can pick one out until at least 12 have been shown. There are more rules on this too.
That said, most rape victims know the attacker, or can provide enough information to track them down fairly easily even in a one night stand type situation. But still, there are some random attacks where this isn't the case.

You can't show them an e-fit or photograph if you know the name of the suspect and the suspect can be brought in for identification.
You can show one if you don't know the name of the suspect, but only after the witness has already provided a description (and that description has been recorded).

This is part of the P.A.C.E. Code (Police and Criminal Evidence Act).

Hairy You couldn't release a photofit of an alleged rapist into the public domain, such as tv or newspapers, or (afaik) show it to someone outside the context of the investigation. I think a photofit created by one victim can be shown to any additional woman who comes forward, though I'm not sure at what point they do it (e.g., it might be a better idea to get each women to create her own individual photofit first, so as not prejudice her recollection, which could weaken the case if it goes to court).

Again in a perfect world, yes I think I'd be in favour of 'ad hoc' threesomes essentially becoming illegal. Not because I'm against group sex, but for the protection of a woman in a spur of the moment situation. Whether that would include the FFM situation, I don't know.

Quite how you could arrange a formal group sex activity and document / provide proof, I don't know, and still, you've got the 'said no during the act' situation to contend with, but it would at least address the situation of 'she looked like she was ok with it, so I joined in' situation.

Swingers clubs? again - so complicated. What can you imply from being at a swingers club? not very much really. Doesn't mean they will sleep with just anybody, doesn't mean they want group sex. They might just be voyeurs etc. Essentially it's not really any different than going down the pub is it? All you're doing is meeting other folks who seems to be open to the concept of sexual activity with select others, which may not be physical.

Sustaining an injury during sex and strict liability (correct term) would not be practical I don't think. There would have to be some sort of grade of injury or injury count. 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.

Coercing someone into a sexual act is illegal, but that's even harder than rape to prove, especially for activities like swinging, threesomes etc. The judge in the recent case referred to 'reluctant consent' which many people believed was an oxymoron, but the binary consent of 'yes or no' can also be seen as a scale, where there's an enthusiastic yes at one end and 'yes ok, but I'm tired and not fully in the mood' consent at the other.
I know lots of people here find this a very emotive subject and thus everything is as clear as day in their eyes, but the conviction rates speak volumes and indicate that it's genuinely not that simple and judges and jurors often find themselves having sympathy for both sides.

There's a reason for the 'reasonable belief clause' as I mentioned before, but it affords way too much scope as you've alluded to.

The bar for "reasonable belief in consent" in the minds of the average jury appears to be so low it's positively subterranean.

I think that's the truth / crux right there.
If someone wants a threesome, that's there business, but surely the default position for a man walking in on two others having sex has to be 'I shouldn't be here, let alone joining in' - that's assuming the two having sex are even having consentual sex in the first place.

He should be thinking 'I'm completely out of here, and even if she seems to want me involved too, it's not worth it'.

We have to be careful about the specifics of the recent case, as we don't know all the facts, but in general, there's got to be more onus and formality on getting consent in these situations, regardless of the spontaneity aspects.

Maybe it's not a complete solution by any means, but if there was a clause about sex with multiple partners and a much greater burden placed on the proof of consent? In simple terms, if you're going to have group sex, you're going to have to do a lot more to be sure of consent, and that specifically excludes 'joining in'. How that would be achieved I don't know, but the joining in should be considered de facto rape maybe?

It's not going to help every woman in every case, but it will help some women in some cases, and that's something.

If you’re the kind of man that doesn’t know when someone is consenting and cannot work this out from the numerous contextual clues there will be then do not put yourself in a situation where you might rape or sexually assault someone. A simple solution. Worrying about poor men who just can’t tell if a woman wants to have sex with them or not is a waste of mn time. I’m sure there’s loads of men on reddit that will love to opine about how hard it is to know if women consent to sex ffs.

Julie Bindels view
www.theguardian.com/commentisfree/2016/aug/12/juries-no-place-rape-trials-victims-deserve-unprejudiced-justice-judge

Well at the moment men are getting off when they admit never even speaking to the woman they penetrated. So that would seem very laissez faire regarding consent.

Everything is as clear as I suggest. Rape apologists like to make out it isn't.
I'm done now because i have spent too many hours arguing with this kind of rubbish on here.

No it wouldn't be hard to ask what steps they took.

The difficulty is in proving if they did or did not. You're still right back at square one for many cases, which is 'he said, she said'.

I would argue that is it difficult though. When a man kisses a woman and touches her knee (or vice versa) - where is the consent. Usually nobody says 'can I touch your knee?' it just happens, or the other persons says 'no', but if they don't say no, either because they are starting to become fearful, or because they are ok with it, where is the actual consent given? how do we prove it?

An awful lot of sex is happening where consent isn't expressed verbally. Perhaps it should be mandatory that it is.
But even if it was, proving what was said is notoriously difficult, nigh on impossible.

There's going to be some men who really don't care what the answer is - they intend to have sex regardless.
There are going to be some men who genuinely do misread signs, and will stop once it's pointed out to them, but by then, they may well have already committed sexual assault by touching.
There are going to be some situations where things are getting very heavy (consentually) but a woman changes her mind, and the man has to stop and there is a difference of opinion about the precise moment consent was no longer given and how soon he stopped.

Any law we make has to take into account these situations and what is black and white on paper is no longer black and white in a courtroom when two teams are putting forward two different interpretations of events, signals, timings etc.

Even consenting to sex doesn't mean a woman consents to every possible sexual act, and the entire list of permissible sexual acts is rarely agreed beforehand.

Of course this is a far cry from situations where groups of men have zero regard for themselves let alone a woman and have the sole intention of carrying out their acts on whichever woman happens to cross their path, but it's the difficult grey areas that allow those men to exploit the law. They know it's difficult to prove, and they exploit that difficulty.

If those more extreme cases are difficult to prove, then is this not proof of why more subtle cases are never even brought before the courts - because there is such little chance of conviction?

There's no backpedalling, this is the state of play today. This is why it's difficult to convict. The extreme examples are already difficult enough to prove, let alone the more subtle ones, but I'm trying to explain WHY the subtle cases have an impact on the more extreme ones, and how those subtleties are used in defence cases.

Everything is not as clear as day as you suggest. The 'reasonable belief' clause is precisely why morning after sex isn't always a guaranteed conviction.

womanformallyknownaswoman: "What did your friend say to persuade them otherwise btw and what's his take on that situation?"

I don't remember! I have to confess it wasn't so much a friend as a very chatty (and very camp) hairdresser who did my hair for years - he was a lovely man, and would happily talk to me in great detail about his personal life. I imagine he said the sensible things that we would all say, such as being a prostitute doesn't automatically mean you consent to having sex with just anyone, but I can't recall.

I agree, it's interesting about the pack animal nature of men. And depressing.

Oh my God, a huge man made of straw

Consent is not difficult. Rapists just like to make it seem difficult to make it easier for them to get away with raping.

To be honest, I don't think taking steps to ask defendants what they did to ensure consent would be that hard.

Consent is so clear in concept so difficult in practice.

Every man or woman who has approached their partner and kissed them, or fondled them has effectively risked sexual assault. Consent isn't typically sought, it's assumed.

This is why we have the clause about reasonable belief, because in most cases, we don't actively seek consent. When people engage in kissing or foreplay, there's usually a steady progression of events and touching where consent once again is assumed, or in part implied.
When we know each other very well, it 'almost' goes without saying - and there's a REAL problem. A wife (or even husband) might not consent on any given occasion, despite having done so many times previously.

So is the wife who pinches her husband's bottom, or the husband who kisses the back of his wife's neck without asking first guilty of sexual assault? By the letter of the law, quite probably.

If we scrap the 'reasonable belief of consent' exemption - would we have to formally enter into an agreement? Asking permission seems a perfect solution if not particularly spontaneous, but we're still left with no evidence of an agreement and still face the problem of saying 'no' at any point in time which would supercede any previous agreement.

When it's sex on a one night stand, it seems more logical that a man needs to take steps to ascertain consent. But a lot of sexual assaults aren't one night stands, they are between long term partners too (with most never being reported). How often do partners ask if touching or full sex is ok? I would guess it's not often, it's assumed, or interpreted.

How can we make consent far more clear, and provable? until we find a solution for that, we won't make much progress.

OP, in Ireland, there are sometimes calls by the gardaí for other victims to come forward even in the case of anonymity for the accused.

Something like (made up example): "a 55yo Dublin taxi driver has been charged with multiple accounts of rape and sexual assault that took place between 2012-2016. [some more info about the MO]. Gardaí are urging any women who experienced any similar assaults to contact Crimestoppers on 1800xxxxx. All calls will be dealt with in the strictest confidence."

Afaik, there's a period of time between someone being charged with a crime and a final file being sent to the Director of Public Prosecutions (who will decide if there's enough evidence to prosecute in court), so any additional charges can be added to the file. Not a lawyer though, so others may have more specific info.

@hackmum yep that story is what I'd expect - thx for sharing - it takes male moral leadership to bring the others into line - otherwise guys tend to victim blame the woman en mass and stick on the bro's side- it's a curious phenomenon - I start to believe that the guy who told me men were pack animals really nailed their true colours. Some are personality disordered but most, in the absence of moral leadership, stick with the objects they recognise - men - they have no felt empathy for women at all. It intrigues me that their default is to support the male whilst women's default is to see the truth, more often than not. What did your friend say to persuade them otherwise btw and what's his take on that situation?

@HairyBallTheorem

The situational effect is actual very relevant as many kids who are abused and /or killed are step kids. Again I don't know stats but know that much DV abuse of kids is from their stepfathers - they don't like the kids that they didn't father.

I suppose I'm beyond the 6% as 4% is the normal number quoted by psychopathy researchers and I know definitely that many rape and DV abusers are never diagnosed with the Cluster B traits they exhibit nor prosecuted for the crimes they commit. Just look at the rate of sexual harassment in UK Parliament for example - 19% of women reported sexual harassment plus another 25% reported other bullying or inappropriate behaviour.

To me the stats will only increase - like traffic on a newly opened motorway. Most of us can't tolerate the unpalatable truth that a large minority of men are not fit for intimate relationships of any sort, not fit fathers and are not safe to be around - unfortunately. I wish it were different but its not and the sooner we take that on board and look at different societal structures, the better

A jury anecdote. I used to know a gay man who told me his story of sitting on a jury in the case of a man being prosecuted for anally raping a prostitute. There were six men on the jury and six women. All the women were in favour of finding him guilty; all the men - apart from my friend - wanted to find him not guilty, on the basis that she was a prostitute and therefore had by default consented to sex. Ultimately, my friend said he played a big part in talking the other men around to deliver a guilty verdict. Afterwards the policewoman in the case came and thanked the jury because the guy had committed other violent sex offences and they'd been desperate to see him convicted.

Another methodology (asking men) arrives at 6% of men, with an average of 6 repeat offences, have committed rape.

so are you implying here that the "few rotten apples" i.e. 6%, is what the research by Lisak is showing? Just curious so I don't need to go back to the original research (I wish we had a central archive somewhere with some commentary by subject specialists who are across the stats!!)

I know its more nuanced but I'm looking at gross figures i.e. my anecdotal figure of 30% of men v ?? from research. I am also taking into account the Australia research into CSA where they reference late onset sexual abusing (aged 30 onwards) in males as well - something I'd not come across before. That ties in with Lundy Bancrofts et al's work with battering men, where they observe correlation between men who batter (all forms of DV and coercive control) and child sexual assault. It's also reported upon elsewhere.

So I know the categories of sex offender will be different -I'm just trying to get a handle on the total percentage on men who may or have raped or sexually assaulted anyone, child or women

I don't know much about the Irish rugby case, but certainly the law does regard reluctant consent as falling within the spectrum of all possible consents. The law draws a line at coercion. I could see the the judge might want to point out the distinction to the jury.

Yep! And I've not even included the worst ones!

The comments by the judge in the Irish rugby case include the words "reluctant consent" I kid you not.

But did they make them before a jury ?