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Original poster

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

183 replies

HairyBallTheorem · 31/03/2018 18:10

Thinking of this as a brainstorming thread and also a "don't throw the baby out with the bathwater" thread. By the latter I mean I don't favour removing the legal concept of the presumption of innocence because I think that's way too dangerous to do if you want a free society.

But we desperately need some sort of reform of rape laws because at the moment too many rapists are walking out of court with not guilty verdicts (thinking here of a whole range of cases).

So a couple of thoughts have occurred to me which I'd like to explore (others may want to add more ideas)

First - the move by Iceland to affirmative consent. The man needs a yes, not the absence of a no. Now I thought that was actually already in place in the UK - there's no such thing as presumed consent. However the problem is the court system doesn't apply it, and indeed I'm not sure how it could. I've heard people on here talk about asking the defendant why he thought he had consent, but since defendants aren't required to take the stand I'm not sure how this could be enforced? Could it form part of the prosecution's case? "The complainant has told us she didn't give consent, and since the defendant hasn't given evidence we have no idea as to why he might have come to the erroneous conclusion that he had consent.."

Second - someone mentioned the Spanner case on another thread (where a group of men practising consensual BDSM were convicted of assault on the grounds that actual bodily harm (I think it was ABH) remains a crime even if the victim consents. Could one apply this to rape? Any ABH carried out during sex would be a crime? (And a strict liability crime, if I've got the terminology right - i.e. one that simply depends on the actions carried out, not the intent of the perpetrator). In this case, any woman presenting to the police with bruises, laceration, bleeding as a result of sex could lead to the man being charged both with rape and with causing ABH during sex, with his beliefs about consent not having any bearing on the latter charge.

(I know a minority of women claim to genuinely like rough sex - and they'd still be able to do it, but by God it would make their partners a hell of a lot more careful about getting consent - no more strangling a woman on the first date just cos you've seen it in a porn film and assume she won't complain.)

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gluteustothemaximus · 01/04/2018 19:21

Hackmum - that's awful Sad

Again, there are inconsistencies with the victim (having past dragged up which affects the verdict) and the defendant (not allowed to have past brought up in case in affects the verdict).

Something is wrong there.

hackmum · 01/04/2018 19:05

Thank you, sawdust and pepperpop. I didn't realise this was possible.

Many years ago - it must have been the 80s or even the 70s - I remember a prominent rape trial being reported in the press. I can't really remember any detail except that the victim was quite young, maybe even underage. The verdict was Not Guilty, and after the verdict was given, the judge read out the defendant's previous convictions, which included previous rapes and sexual offences. What I remember vividly is reading that some of the jury members cried when the judge read out the convictions.

I just remember thinking how cruel it was to do that to the jury. Ultimately, like all these cases, it's a question of the victim's word against the defendant's, and the burden of proof is so high that yes, much of the time - most of the time - they will give the defendant the benefit of the doubt. How does the prosecution have a chance of securing a conviction if important information is kept away from the jury?

TheBrilliantMistake · 01/04/2018 19:03

The point of the jury is really to represent what the typical layperson would deem to be reasonable / fair. Yes, they have to operate within the parameters of the law, hence needing direction, but the basic premise is 'what would a normal person do / think / believe in such a situation'.

Whilst they may well not be au fait with the finer points of law, and may not be particularly intelligent in some cases, the alternative is equally perilous in that we could have highly emotive subjects being judged on via a seemingly dispassionate process (many would say it's already that way), where the outcome is really a culmination of intellectual battles between two legal teams.

TheBrilliantMistake · 01/04/2018 18:56

Is a male's input likely to be welcomed on this topic? It's a very emotive subject and presenting the issues that the defence have is not likely to make for comfortable reading for many.

gluteustothemaximus · 01/04/2018 16:59

Actually I think there are very few crimes where juries are useful

I struggle with juries too. Especially in sexual assault cases, but just generally too.

MyVisionsComeFromSoup · 01/04/2018 16:37

I was on the jury in a sexual assault case - it was very depressing to hear the rape myths in the jury room Sad. I don't know that any amount of training would have helped the handful of jurors who had made their minds up right at the very beginning "because we all know what x (type) are like" and "of course they're not going to admit they led them on".

And not even going to go into "well I don't want this hanging over me all weekend, and have to come back in on Monday" mentality, which meant that a majority decision was rushed into.

CardsforKittens · 01/04/2018 16:24

Argh! Meant to add: I am not a lawyer.

CardsforKittens · 01/04/2018 16:23

I'm not sure jury training would help much: I'm pessimistic about how effective it would be. So my preference is also controversial - I think sexual assault cases should be tried by panels of expert judges. No juries. Actually I think there are very few crimes where juries are useful. But we would need these courts to be able to hand down significant sentences. And it would be expensive. And judges would need specialist training too. But then I still struggle to understand why we have juries. Maybe I'm missing something.

gluteustothemaximus · 01/04/2018 15:13

It would help if the jury involved in rape trials were to have training on rape myths.

The jury is often already very prejudiced and often believe the common myths surrounding rape.

Original poster
HairyBallTheorem · 01/04/2018 15:05

The more I read around the law (the wording, the guidelines for judges, Keir Starmer's attempts to tackle rape myths when he was DPP), the more I think we have the raw ingredients of decent treatment of rape victims already there on the statute books. They're just not being applied correctly. "Reasonable belief in consent" seems to be being routinely interpreted as "what a man, soaked in porn culture of violence, rough sex and misogyny, would think constituted the absence of a clear NO", when the law as it is framed should not be allowing this.

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Ravenheart1 · 01/04/2018 11:38

Hairy - yes I think I agree with you on distinction between reasonable and honest belief. The new law of 2003 got rid of honest belief as a man could say "I thought she consented" and that would generally be enough to get off.

Reasonable belief is still subjective as its the man's view, but I guess held up to objective standards and he has to demonstrate why it was reasonable in the particular circumstances. And I suppose they dispensed with "recklessness" as you cannot have both a reasonable belief and reckless at the same time??

I have not seen the transcripts from the trial, but I'm stumped if I can see how reasonable belief was established here. So perhaps it has not given women the protection it was intended to have when originally drafted.

The balance feels wrong - the upshot is, it feels like there is presumed consent in many cases, unless the woman can prove otherwise. And even where there is evidence, his "reasonable" belief seems to trump her evidence of non-consent.

ConstantlyCold · 01/04/2018 11:08

My suggestion will be controversial

Doesn’t sound controversial to me. I’m not a lawyer so I’m sure someone much more knowledgeable will be along soon to shed some light on that idea. But it sounds fair to me.

sawdustformypony · 01/04/2018 11:03

Hackmum

There are circumstances where precisely this does happen - see chapter 12 of the bench book re: bad character for such circumstances.

pepperpop · 01/04/2018 11:02

Very interesting thread. I am a solicitor.

@hackmum bad character of defendants is frequently used in trials, but the prosecution have to apply to the court for permission to adduce it as evidence first Smile

hackmum · 01/04/2018 10:52

My suggestion will be controversial, but I’ve long believed that the prosecution should be able to draw the jury’s attention to the defendant’s previous bad behaviour, whether it’s criminal convictions or other examples that illustrate bad character. If the defence can dredge up the witness’s history, why shouldn’t the prosecution be able to do the same with the defendant?

sawdustformypony · 01/04/2018 10:43

Hairy

Yes definitely - and its a well accepted 'truth' that even honest witnesses get things wrong - and of course this is true of witnesses for the Crown or for the defence. Again, there is a set of directions that a judge ought to give to the jury for them to understand this and then evaluate the evidence. The directions are named Turnbull directions (named after an old case) - if you look at chapter 15 of the bench book , you'll see more about it there.

QuentinSummers · 01/04/2018 10:33

That's interesting about recklessness brave
There are so many recent trials where the "reasonable belief" appears anything but (Ched Evans being an infamous one). So it looks like that change hasn't introduced a higher bar. I'm going to bring that up in my letter (I'm writing to the MOJ, Allison Saunders, Theresa May and my useless mp. May cc in my local lib dem party too as I am a member)

Original poster
HairyBallTheorem · 01/04/2018 10:17

Thanks sawdust - that's invaluable.

It'll take me a while to read through it carefully, but one thing that springs out at the start is that judges are allowed to point out to juries that there is no one response to the trauma of sexual assault, and that victims may not react in stereotypical ways.

As I understand it, a key part of the evidence raising reasonable doubt in the minds of the jury (one presumes) in the recent Ulster rugby trial was that of the female witness who walked past the room in which the incident took place, and reported that the victim did not ask for help, but instead merely turned her head away (which was interpreted as her being okay with what was going on). Could the prosecution have made more, on cross-examination, of the fact that trauma hits women different ways, and that this response, while it could have been that of a woman engaging in consensual sex who was simply embarrassed at being seen, could also have been that of a woman who was being raped but didn't react in the stereotyped way. (The judge's guidelines explicitly mention shame and embarrassment as factors which may complicate the way in which women react and delays in reporting).

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sawdustformypony · 01/04/2018 10:05

Maybe some would find it interesting to read the manual that judges have when summing up for juries. Chapter 20 deals specifically with sexual offences - including rapes myths. Although a judge is permitted to choose their own words, if a judge steers too far away from these guidelines then it could result in a mistrial.

Original poster
HairyBallTheorem · 01/04/2018 09:52

Yes, it was the Morgan case in that linked Guardian article which my friend used to use as an example.

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Original poster
HairyBallTheorem · 01/04/2018 09:51

Thanks Raven. I wonder... if I'm getting this right, "honest belief" would be subjective - i.e. that the man believed it, no matter how delusional that belief might look to a third party, then that was a defence, whereas "reasonable belief" is "objective" (in the legal sense of coming down to a social consensus view - what the person on the Clapham omnibus might believe), so any old belief won't do, it has to be one which can be articulated as a view of the situation any reasonable person would come to in that situation.

But it seems to me that lawyers in rape trials and juries still use "honest belief", as in "any cock and bull story is good enough". Why is this? Why don't prosecution lawyers and judges challenge this? (The idea that juries will believe any old excuse seems to me confirmed by the case of the guy who got off because the jury bought his claim that he tripped and fell, erect penis first, into the vagina of his drunk and insensible victim who just happened to be lying on the floor).

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Ravenheart1 · 01/04/2018 09:41

Hairy - Not a criminal lawyer but I believe the recklessness element was removed after 2003, because under the old statutes previously, a man only had to show that he had an honest belief in her consent. But if he was reckless he could not rely on this defence.

Instead, the government introduced a higher burden - the test of reasonable belief so that the courts could analyse what steps the defendant had taken to ascertain consent.

Though I am mystified in this case as to how he established reasonable belief in her consent - what were the steps he allegedly took to ascertain her consent?? His own evidence suggests a callous indifference to her feelings throughout.

www.theguardian.com/politics/2002/nov/20/ukcrime.prisonsandprobation3

Original poster
HairyBallTheorem · 01/04/2018 08:45

Thanks for all the thoughts - when I went to bed last night I thought this was one of those threads that was just going to disappear.

The "reckless penetration" idea is an interesting one Quentin. AFAIK (used to chat to a friend whose research field was philosophy of law, way back in the 1990s), prior to the 2003 act the mens rea for rape was that the accused either did not have reasonable belief that he had consent, or was reckless as to whether he had consent. Does anyone know why this second clause was dropped from the 2003 act?

Twenty how does anonymity for the accused work in Ireland in the context of getting additional people to come forward? It's often said that Worboys would never have been successfully prosecuted had it not been for women coming forward in numbers once his identity was in the public domain.

As for hearings in camera - I personally am always wary of "secret courts" as a wide issue (and it sounds like there have been some serious miscarriages of justice in the family courts which can't be unearthed precisely because of reporting restrictions. Would some sort of half-way house be possible? One where journalists were allowed in, and representatives of NGOs (such as civil liberties campaigners), with members of the public required to sign a form stating their reasons for wanting to attend, and signing to say that they understood that revealing the name of the victim would put them in contempt of court? (From what I've read on other threads, the recent trial sounds horrific - people attending the trial out of prurient curiosity, people in the public gallery laughing while the victim was cross-examined.)

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Ifonlyus · 01/04/2018 08:40

Is the terminology a barrier to conviction rates. We've grown up associating rapists and rape with violent men who force sex on a stranger in public areas. Is it too much of a stretch for jurors to impose that same label on men in the scenarios which come down to 'he said, she said' and introduce even 1% of doubt in the juror's mind.

QuentinSummers · 01/04/2018 08:25

I've said on other threads, not a lawyer, I would like to see a crime of reckless penetration for men who haven't done enough to establish consent (e.g. if a woman was drunk or if their mate said they could have a go).
I think it's absolutely disgusting that a man can claim consent from a woman he never even spoke to.

I also want the law rewritten to get rid of the "reasonable belief" clause. That effectively enshrined the man's view if the situation as more important than the woman's and actively works against the "incapacity" clause.

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