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

[HairyBallTheorem]

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.)

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!

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.

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

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.

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

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 ), 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.

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

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?

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.

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.

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.)

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

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).

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

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.

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).

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)

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.

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?

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

Hackmum

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

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.

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.

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.

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.