sexual history of rape victims

[dorade]

As I understand it, judges have the discretion to allow the defence to question a rape complainant on her sexual history. (Please correct me if that is not correct).

Can anyone explain to me why judges need this discretion and under what circumstances, if any, the use of it could be justified?

hehehhehe.

"I am always in a state of non-consent". I was having a fight with my tablet.

But in effect, the law does say that, doesn't it?

That as long as a man isn't a balaclava-clad stranger in an alley way, women are in a state of consent unless we can convince a jury that actually, when we say we weren't, we really weren't.

The accused, rightly, does not have to prove he didn't rape someone (or at least that he didn't intentionally rape someone). The victim though does have to prove she was not in a state of consent in order to get a conviction. Proving a negative is always tricky.

The law as it stands, the assumption of women being in a default state of consent, inevitably results in most rapists walking free. I can't see how it wouldn't do, really.

That's what I've been driving at, Basil.

And that excerpt from the CPS doesn't disabuse me of the notion.

Exaxtly what I meant when referring to the prosecution having to prove that non-consent was happening. But isn't that what we should be in? Why should a legal team that is supposedly on the side of law have to prove that? Does Regina have a problem with that?

Are juries directed that victims are deemed non-consenting unless proved otherwise and advised to adjure accordingly?

It's one of those nuances that doesn't seem so nuanced when it is explained.

When I win the lottery, I will start a fund to pursue rapists through the civil court.

The law does not presume one way or another.

The defendant doesn't have to say anything, but it would be extremely unusual for one to give a 'no comment' interview to the police and then decline to give any evidence in chief at his trial. If indeed 'consent' is his defence then he, in reality, needs to counter the prosecution's evidence that the complainant was not consenting / or that his belief in consent was unreasonable- and he needs to do so to a degree as to introduce doubt in the minds of the jurors such that they are no longer sure that an offence took place.

The law may not presume one way or the other in theory Beatrix, but in practice it does.

It considers that a man might reasonably believe he has consent when he hasn't, even though it's really easy to check whether you've got consent. All you need to do is ask. If you don't ask, but you can still be considered to have reasonably believed that you have consent, then surely that implies that the default setting is consent?

So, it's all about the juries.

Or, perhaps, we could have a new* crime "penetration without a person's consent" that is treated like car crime. Does twocking cover taking a learner driver to Morrison's car park for a parking lesson but then they decide to go for a burn on the bypass with the well-meaning car owner cowering in the passenger seat?

*not really it's already law!

When it comes to relying on a defence of 'reasonable belief in consent' the onus to prove it becomes the defendant's. I seriously doubt it is a defence used very often.

The whole women in a permanent state of consent is why women were allowed to be raped in marriage. Basically you married a man so you consented to sex with him for the rest of your life. It is still a problem I think.

It is also significant that the defendant doesn't have to say anything at trial, but the victim almost certainly will have to. Wasn't this part of the problem with Jane Clough and her murderer not having to go through a rape trial, even though he was awaiting trial for rape when he murdered her?

But the very fact that it's useable at all, is quite telling.

What is the main defence, do you know?

Beatrix (sorry to "put you on the stand", but you are being very imformative), do you think, then, that the CPS are being too cautious about bringing cases to trial?

Actually, I imagine that consent is a very common defence, given the CPS's apparent reluctance to bring cases to trial. I imagine that DNA evidence is available in most cases and so the only question to answer is consent.

Yes, it's all about juries. Too true.

And juries consist of normal members of the public, that read, say, the Daily Mail, not Mumsnet FWR section. And they believe rape myths.

They are more likely to think along the George Galloway line of "it as just sexual bad manners" than "it was rape." they'll err on the side of caution - because their verdict will put a 'nice man in a suit with their whole life ahead of them' in jail. And many are not prepared to do that.

Yes I think consent is prob a common defence.

But no consent however I thought I did have consent yer honour, is probably less common.

Would be interesting to see a breakdown of defences actually.

And also to break down by which defences most likely to get you off.

We should probably just go on a MRA site, I bet they're full of experts.

Debris

To answer your 1st question, I don't honestly know - I don't practice criminal law any more, but I have a high regard for the CPS and I would have thought they knew what they were doing alright.

As to your second point - don't confuse the defence of 'consent' and 'reasonable belief in defence' - look at the illustration I posted about the students. In a 'consent' defence, the defendant is saying, s/he definitely consented. In the 'reasonable belief in defence', he is in effect saying, that he agrees that there was in fact no consent, but at the time he believed there was and that this belief was reasonable held.

Sorry - the above should of course be 'reasonable belief in consent'

That bit above about the reverse onus of proof might not be correct - I'll do some research. Still think it's used very rarely though

That was my original point - whose belief is deemed "reasonable"? The defendants or the jury's?

It would sadden me if it was the jury's. Because that would mean that police who no-crime rapes and the CPS who decline to take cases forward have so little faith in the general populace to know what is reasonable. Yes, by my standards. But I don't think that enthusisastic consent is an unresonable standard to hold. I would not want to be alone with anyone who thought otherwise. Would you?

So, the campaign "this is not an invitation to rape me" is a good one then?

this is not an invitation to rape me

To get across to men the nature of consent that is enthusiastic consent.

Everyone needs to see this.

We discussed this above - it did come down to the jury in the end - they ask themselves the question was the defendant's belief genuine and if yes - then was it reasonable, with the 12 members of the jury bring their knowledge and experience of life to bear, in deciding what is reasonable. (the discussion above, didn't spell the last bit out - but that is why you have juries of one's peers)

Re: enthusiastic consent - one can agree to something without being enthusiastic about it - its so infantile. Imagine, the scene post implementation of new law

partner (at the end of a long day)....fancy a shag, love
me...(yawn) err...err. yeah maybe
partner....oh dear I'm not getting enthusiasm, best not eh - the new law ?
me..shit yeah best not....night then...

Beatrix, that's not what "enthusiastic consent" means to me. It means participation, happiness, affection, lust, that sort if thing. Rather than, say, going along with it for a quiet life.

Active consent might be an alternative.

But the law is there for people who feel they need justice Beatrix.

It's not there for the couple who feel no need to call on it.

It's incredibly useful in dealing with people who want to abuse other people though.

Much like the law on assault - if people choose to assault their own children, they're still allowed to, as long as they don't leave marks. They're not allowed to assault anyone else's children though. Which makes the world a safer place for many children.

In one of your examples from the bench book, consent covers "reluctant acquiescence".

So a defendant could state that he reasonably believed that she had reluctantly acquiesced, and that would be ok.

As long as a choice is freely made, the law rightly has no interest in the motivation of an adult. Women are not children and are allowed to make choices for whatever reason they choose and with whatever level of enthsiasm they feel at the time. Imagine the concept of enthusiasm being applied generally. Reluctantly lending money to a friend could be theft. Agreeing reluctantly to go out for an evening= kidnapping.

Clearly choices made for reasons of fear or coercion are not free choices and that is clear in law and guidance.