Oxford Union president rape allegations - alumni open letter

[FairPhyllis]

The president of the Oxford Union (which is a debating society at Oxford), Ben Sullivan, is currently being investigated over allegations of rape and attempted rape of two undergraduates at the university. He is refusing to resign or suspend his presidency. Speakers are beginning to pull out of events.

www.telegraph.co.uk/news/uknews/crime/10845979/Oxford-Union-boycott-after-president-returns-despite-police-investigation-into-rape-allegations.html

If you are a member of the university or an Oxford alumna/us, and feel strongly about the minimisation of rape and sexual assault "on campus" there is an open letter you can sign here calling for Sullivan to step aside while under investigation. It is organised by the OUSU VP (Women) and other students.

Unfortunately a lot of the population think like jane- that the lack of a conviction means the woman was making a fake allegation.

We need to educate the whole population that this is not true.

FloraFox excellent post, particularly the part about nuance. It has helped me frame my thoughts on the subject much more clearly. It leads me to a question though. In terms of common law and concepts of harm and loss, in such cases as when a man had reasonable belief of consent harm has still occurred. Now if I accidentally kill someone through fault but not intent I would be guilty of manslaughter. Now in the case where rape occurs and harm is caused shouldn't the question be over the harm and not intent?

I appreciate that is not how the law is currently framed, but as it stands we are not protecting people from harm, and that after all is a cornerstone principle of why the law exists at all.

I suppose the case of the hotel worker who had sex with the wrong woman would come under that, Dervel - sexual assault by negligence?, where going to the wrong room was negligence.

(Disclaimer the above doesn't mean I found the defence in That case credible)

It's hard to make a direct parallel with manslaughter as it's not possibly to consent to your own death or injury.

Absolutely you can't it's more the point that harm has occurred. If that was the benchmark rather than quibbling over wether someone thought they had consent or not it would be easier to establish that a criminal act had occurred. After all ignorance is not supposed to be a defence in the eyes of the law.

I am also only spitballing here and throwing some ideas in the air. If it was as simple as that I suspect far cleverer people than I would have corrected the flaw in our legal system.

What is interesting to me is how people are quick to presume the innocence of the man in question on the grounds that any proceedings against him have ceased. If that is a reasonable assumption it is also therefore logical to assume that the women who made the initial claims must also be innocent of lying as the police and cps are choosing not to proceed with charges of trying to pervert the course of justice or the wasting of police time.

They should after all enjoy the same benefit of the doubt as he does, for precisely the same reason but they don't. In the end I think there is an unconscious but very real and very dangerous bias against the victims in cases such as these. We need to urgently examine this bias as a society and dismantle it as when we do the legal world will fall into step.

I know this sounds counter intuitive but unless someone is charged and convicted of either rape or falsely accusing someone of rape the individuals must exist in an almost quantum uncertain state as far as we the media consuming public are concerned. To make presumptions on either side of the case requires an assumption the other party must be guilty of criminal behaviour.

Good post.

And "innocent until proven guilty", as I understand it, simply means that unless proven guilty of a crime, society must treat a person as if they are not guilty of such a crime ie as a "full citizen".

As no one is ever proven innocent, perhaps "not guilty until proven guilty" would be a better phrase, as those are the two verdicts.

I have been on a jury (not a rape case) where we took a long time to reach a decision. We had no question that the crime had happened to the victim, our concerns were around whether we could say that those in the dock were the ones who committed the crime beyond reasonable doubt.

Dervel if you accidentally kill someone, you would not be convicted of anything. Accident is a complete defence. All crimes need an element of mens rea - criminal intent. Manslaughter is killing with something less than the intent required for murder and there are a number of circumstances where this arises but not when there is an accident.

Ignorance of something being illegal is not a defence but that isn't the same thing as ignorance of whether someone is consenting.

With rape, the required criminal intent is intention to have sex and lack of reasonable belief that there was no consent. This is a statutory provision so the common law is not really relevant.

The law could be changed to improve the chances of conviction. LRD mentioned requiring enthusiastic consent. ATM the Crown must show the defendent had no reasonable belief that the complainant consented. They can take into account any steps the accused took to ascertain consent. Currently, the accused can raise his defence by his lawyer cross-examining the witnesses. He doesn't need to give evidence himself. IMO this should be changed so that an accused cannot claim consent as a defence unless he gives evidence and the requirement should be that he demonstrates why he believed there was enthusiastic consent. A "yes" instead of a lack of "no".

I like the idea that the defendant must speak if belief in consent is his defence - some people think rape is a "he said, she said" situation, whereas in the current court set up it could be "she said whatever she could to withstand cross examination; he was never cross examined"

Whilst I think enthusiastic consent should be taught in PSHE, I don't think it's possible to put it into law as there's no parallel elsewhere. Perhaps "what steps did you take to ensure that you had her full and free agreement to sexual contact"?

It the final analysis, he was absolutely right not to step down. Those who stated that point from the start of this thread were absolutely right too.

Flora - that is such a simple but brilliant idea: if the accused's defence is that he believed he had consent, he must take the stand to explain why he believed that, and the prosecution can then have the chance to cross-examine him. Surely that's worth a letter writing campaign to MPs, the DPP, the Home Secretary.

Avoir, there's no "final analysis"

Should people under investigation for a serious crime step aside from a role whilst the investigation is ongoing? Some agree, some don't. None of those who agree are making any assumptions about whether the one under investigation. Is guilty or not.

billn I think you could reflect positive consent in the law. The current laws are still based on the assumption that a woman is consenting unless she says "no". If the accused had to take the stand, it would mean that him saying "she didn't say no" would not meet the standards of reasonable belief in her consent. It sounds like a small thing but it would make a big difference to the cross-examination.

Lurcio maybe it is worth trying something. I think it would make a big difference to rape cases. It might also highlight that many rape cases are not "he said, she said". This common misconception fuels the belief that anyone not convicted is innocent, that the jury thought he was telling the truth and she wasn't. I think it was also mean more charges would be brought as the jury would get a chance to see / hear the accused. The statistics on false claims are largely derived from law enforcement officials who questioned both parties and believed the woman. The problem is that when they assess the evidence, they know the man won't need to give evidence. There are other factors too but that has to be significant.

"The current laws are still based on the assumption that a woman is consenting unless she says "no". If the accused had to take the stand, it would mean that him saying "she didn't say no" would not meet the standards of reasonable belief in her consent."

I'm fine with all this. I don't think women are in a state of consent by default, do you think the law "thinks" this - the letter of the law rather than the practice by judges or juries (the man who didn't speak English and therefore "didn't understand" no being a case in point of a shitty defence)

My understanding (I am not a lawyer - this is based on people on here linking to the relevant bits of the relevant acts of parliament) is that there is no such thing as implied or presumed consent in UK law. Consent is not the absence of "no", it is (under UK law) the presence of "yes".

However, I am far from clear whether this point is made clear to jurors before the trial starts (note - not in the judge's summing up - that's too late because jurors will already have filtered the evidence in their minds according to their pre-existing belief set).

No, I don't think the letter of the law reflects this but I think there has been a gradual change in how the law views consent. It used to be that there would need to be visible signs of a struggle. Even then, I recall hearing about a Scottish judge using the phrase "rough wooing" in relation to a rape meaning that the encounter may have started out rough but the woman consent in the end. This used to be a common portrayal in films - the rough kiss then the woman swoons into his arms. The law moved on to more of a "no means no" assumption where no force was required but if there was no evidence of the woman saying no, there would be no conviction. The legislation now said that in considering whether the accused's belief in consent was reasonable, the court can take account of what steps he took to ascertain consent. There is no implied or presumed consent per se but this doesn't mean he has to take steps and, as noted above, he doesn't need to give evidence to raise a defence of consent. I don't know what the directions to the jury are currently, I think they have improved greatly. But these assumptions run deep and don't change immediately with legislation. In particular, the concept of "reasonable" belief will be open to interpretation by judges and juries.

Thanks, Flora.

BillnTeds, Lurcio

I like the idea that the defendant must speak if belief in consent is his defence

I think you're chasing a solution to a problem that doesn't exist.

IME rape defendants always take to the witness box to speak - it's usually the only defence they can make. If you don't believe me go and watch a rape trial yourself (otoh - no, don't - they're not very nice).

I've done jury service 3 times, and in each of my stints one of the trials was a rape - I don't know whether I've just been 'lucky' or whether it just reflects that a lot of jury trials are for rape. Most recent one was a couple of years ago, and I remember the details of that very well.

In all three cases the defendants chose to speak. In all 3 cases (ISTR) they were the only defence witness. In at least one case the defendant effectively convicted himself on the stand - one person making up a story is no match for 12 people critically comparing that story against all the other evidence they've heard.

So 3 cases, 3 convictions. We spent hours debating every single scrap of evidence - but there's not a shred of doubt in my mind that we got it absolutely right.

So having seen this from the inside, I'm totally convinced that the 'trial by jury' part of the system is working fine, in particular the last trial was very good indeed (police, CPS preparation etc). I believe the conviction rate for rape cases that go to trial by jury is now around 60% - which is exactly where it should be. It seems to me that it's getting to that point which is the challenge.

Bear in mind that forensic science has pretty much put paid to nearly all defences to rape ("it wasn't me" etc) - the only one left is 'consent' - which of course is why we're discussing it.

At my last trial the prosecution opened with an outline of the case and then a very long and detailed discussion about the exact wording and meaning of the current law, the concept of consent and what it did and didn't mean. The defence opening was shorter but did pretty much the same. So after the first hour or so, before we had heard a single witness, we were all very clear on what this case was about, and what we had to do.

Peckham I think the fact that your experience is of a 100% conviction rate demonstrates that your experience does not reflect the norm and also demonstrates the benefit of the accused being required to give evidence. I know criminal defence lawyers who will withdraw from the case if the accused insists on giving evidence, such is the likelihood of them incriminating themselves on the stand.

Just really want to applaud the lucid and articulate explanations from Buffy, Bill, LRD etc. No one has clearly responded to the double standard issue, as in most people accused of.serious crime.or.misconduct are suspended/ suspend themselves during investigations, why would this case be different?

And also, just want to query why allegations of.false accusations are.being left to stand, false accusation is a.criminal offense which has not been proved or even apparently considered in this case so those people.alleging false accusations are.currently labelling two young women?

Also, can I just point out that The Crucible is a work of.fiction meant to metaphorically refer to the McCarthyism. Also, it was written by a sexist man in a sexist time interpreting a series of events in which young women were afraid for their lives in the case they had been found to be legally responsible for their own sexual desire/ autonomy. So it's hardly likely to be a just or truthful interpretation, more likely to be biased by the sexist prejudices of the man writing about the people of another deeply misogynistic era. And is in any case a work of fiction and not an historical document.

*libelling not labelling

OutSelf - Yes +1

Flora

You've not said anything to address my main point - which is that there is no need to compel rape defendants to testify because they always need to anyway to make any sort of defence.

This has been true for all the trials I've seen (admittedly a small sample)

It's also true for all the recent celebrity trials (although not all of those have been for rape)

I would be interested if you could point me to any typical UK rape trial where the defendant didn't testify but wasn't convicted. By typical I mean excluding those where the prosecution case was broken purely by technical evidence - e.g. showing that the defendant could not have been at the scene etc.

I know criminal defence lawyers who will withdraw from the case if the accused insists on giving evidence

For rape cases I find that quite difficult to believe. Unless you're not in the UK? it sounds more like an american thing?

In the UK barristers are officers of the court. Your defence barrister is not allowed to collude with you to devise the best defence which circumvents the prosecution evidence - they just have to take whatever story you tell and try and run with it.

I've sat in court completely incredulous at the ridiculous defence being made, when there was a much simpler and more difficult to disprove story that could be told. It was only afterwards that an ex-barrister aquaintance explained how it works - whatever bollocks the defendant comes up with, the barrister has to run with it.

Basically my point is that with current UK law and procedures, once you've got a rapist in the dock, facing a real life jury, he's in a bad place. It's getting the bastards to that point is where we should concentrate efforts now.

When I say 'UK' I should say 'England and Wales' - Scotland has its own law, of course.

Thanks for that Peckham - very interesting. Actually, does anyone have the stats to hand? I seem to remember reading that your experience is backed up to some extent by the stats - the actual conviction rates for rape charges which reach court are fairly comparable to those for other crimes - the drop off is with the CPS deciding not to proceed, or with cases being "no-crimed" at earlier stages.