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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.)

OP posts:
womanformallyknownaswoman · 01/04/2018 00:02

I think expert courts are needed - and I am still unsure about juries in expert courts. I'm not a lawyer btw. A lot of the problem is ordinary people believe rape myths. So even presented with legitimate evidence that a woman was raped, they invariably victim blame. I'm unsure what the way around this is - can you inform a whole jury each time or do we need, say, panels of 3 - a judge plus 2 magistrates (or equivalent), who hear all cases like CSA, rape, DV - who understand the complex dynamics of coercive control. And yes the adversarial system needs to go or at least be tempered - rape victims should not be subjected to hostile defence tactics designed to break them and smear their character, the victims sexual history should be off limits unless very exceptional circumstances. I mean we don't traumatised children to face such tactics so why do we expect that of traumatised women?

TwentySmackeroos · 01/04/2018 00:00

I should have added: in the case of a not guilty verdict, no party is named: anonymity is preserved for accused and complainant.

TwentySmackeroos · 31/03/2018 23:59

I'm in ROI and there has been avid coverage of the Belfast rape trial.

Significant differences north v south:

In ROI (or Ireland, as we call it Smile), the accused is not named.

If found guilty, only the accused-now-found-guilty is named.

If it is a case of marital/incest/close family, the guilty party is only named if the victim willingly waived anonymity.

Rape trials take place in camera: public is not admitted. There is extremely restricted access. Alleged victims are entitled to have support from Advic, and advocacy support group.

In camera trials may now (recent changes in the law) may be reported in a headline way by journalists while the trial is ongoing, but reportage is generally reserved until after the verdict - and even then only in general terms - e.g. at the circuit court in Galway a 57yo man..., not 'a married shopkeeper in Athenry.'

m not a lawyer and don't know how the interpretation of consent differs between the two jurisdictions, but thought the differences in how rape trials are conducted might be of interest to the thread.

SmurfOrTerf · 31/03/2018 23:52

I don't know, but something needs to be done.
I said to my DH this week if I was raped there is no way I would go to the police.
And that is wrong.
I hope some people here have good suggestions

UpstartCrow · 31/03/2018 23:41

Change the way that victims can be cross examined. 8 days in the stand being cross examined by 4 barristers is not acceptable. Thats an interrogation.

cheminotte · 31/03/2018 23:33

I’m not a lawyer but my suggestions would be:
Court case held in camera (no audience) - I think it is in ROI
Judge / Magistrates not jury

MimpiDreams · 31/03/2018 23:22

Just musing, but I wonder if there's a way to take the individuals out of it. Do the jury just need to be presented with the evidence and counter evidence and to make their decision on that alone? I mean, how many rapists are cleared because the jury can't see past the nice, well presented gentleman in front of them? Especially as they're likely to have been conditioned to give a man's version of events more weight than a woman's.

TimbuktuTimbuktu · 31/03/2018 23:08

Ooh I like the ABH thing.

Ridiculous to think that you are more likely to get a conviction presenting to the police with injuries caused by 'consensual' bdsm over rape. Am I understanding that right? It is fucked up!

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