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.)

“I'd LOVE someone to explain to me why defendants AREN'T required to take the stand? ”

Because the burden of proof is on the state.
Accused people enjoy the presumption of innocence and aren’t required to open their mouth because it’s for the prosecution to satisfactorily prove their guilt, the burden is not on them to prove their innocence or satisfactorily deny their guilt.

In the simplest of terms they don’t have to take the stand because if you want to accuse a person of something then the onus is on you to prove they did it.

Not a lawyer but in this case there was a lot said about where the prosecution failed to challenge really obvious lies and contradictions from the defendants (such as saying they stopped kissing when she realised he didn't know her name and then apparently she consented to sex straight after).

Would it be possible for the victim to have her own legal representation as well as the state prosecution? There just seems to be a massive imbalance in defendants being able to go for the best lawyers money can buy and victims being stuck with overworked, underpaid state prosecutors.

So much interesting stuff on this thread! And yes, I sometimes wonder why prosecution barristers seem to do such a weak job of picking apart inconsistencies in the defence story, bastardginger.

I've posted a lot on Lisak's work on here too, Placebo. It always interests me (as a scientist) when two different methodologies arrive at ball-park the same number. In this case, one methodology (asking women) gives you a figure of 25% of women say they've been raped or seriously sexually assaulted. Another methodology (asking men) arrives at 6% of men, with an average of 6 repeat offences, have committed rape. So 36 rapes per 100 men... maybe 35 per 100 women on the receiving end. Allowing for some women who are victims of repeat rapes, that gives you round about the 25% figure you get from asking women directly whether they've been the victim of rape.

The other thing mentioned a few posts back was whether education would work given many men may not know they're rapists, just think the behaviour is "normal sex" (with rape classified in the minds of such men as "some other bloke, dressed all in black, who pulls a knife on a complete stranger down a dark alley - I've never done that...")

In fact, Lisak's work shows that isn't true either. He carries out two sorts of survey. One carefully avoids the word "rape" but uses descriptions of actions that meet the legal standard of rape: "Have you ever had sex with a woman who's said no, but you've used your body weight to hold her down until she stops objecting?" About 6% of men answer "yes" to questions like that. The other sort of survey Lisak uses actually includes the word "rape" and 5% of men, it turns out, will directly admit to carrying out rape.

So the "he had no clue that what he was doing was rape" cohort of rapists is a minority - 1 in 6 of rapists. The rest know exactly what they're doing, they just don't care and don't think they'll get caught, and if they do get caught, know that if they throw enough money at a good defence lawyer, they'll get off.

TheBrilliantMistake what the fuck are you talking about? Are you seriously presenting that scenario of penetrating a sleeping woman as some kind of grey area and something that happens commonly?
That is rape, no question. Consent for one sexual act does not mean consent for any future sexual act.
Also, the idea that a woman might think she has been raped but she hasn’t??
Women know whether they have consented to sex or not, if they have not then it is rape, irrespective of what can be proven in court or what the man’s perception of events is.
You have expressed some pretty appalling views on here and are a clear example of male sexual entitlement.

Okay, that got long, so I'll do a separate post on shifting the burden of proof. I said in my OP that I didn't favour doing away with the principle of "innocent until found guilty" and the concomitant view about burden of proof - that the state has to make its case, rather than the defence prove that it's unfounded. That's because there's a bigger picture at stake here than just rape trials (horrendous as the low rate of conviction in those is).

Here's why I'm against it - although it might help redress the balance for rape trials, it would be too dangerous as a principle in law because of the risk of it being misused in other circumstances.

Authoritarian governments don't have to use directly political laws to imprison their opponents. It's not hard to construct a legal system in which the state can put its opponents away for relatively minor crimes, and fit them up for those minor crimes. The presumption of innocence is one of the fundamental principles that protect us against that sort of authoritarian abuse of legal powers (along with not being required to testify in your own defence, habeus corpus, the right to free speech...)

When you look at authoritarian regimes world wide, and their behaviour, I personally think this is too important a principle to give up. Remember, getting rid of it can be used against women. For instance, there are parts of South and Central America (Costa Rica, Nicaragua) where laws against abortion are so draconian that the burden of proof is on the woman to show that she suffered a miscarriage rather than had an abortion - and medically, this is often impossible to prove, so women get sent to prison for miscarriages. Leaving aside the issue of the legality of abortion, it is clearly a horrendous breach of civil liberties to have a situation where the onus of proof is on the woman to prove she didn't take mifepristone (impossible to do - how do you prove you didn't do this, if you don't have witnesses to your life 24/7), rather than on the state to prove that she did.

And remember there are politicians in Trump's America who would clearly like America to go down this path - so far their efforts are being thwarted by the US constitution. But we in the UK don't have a written constitution, which is why we have to think incredibly carefully about unintended constitutional consequences of what look like sensible changes to the law, changes proposed with the best of intentions.

Agree, TheVery - Brilliant's supposed counter-example is in fact a clear cut example of rape, and the whole of Brilliant's post is an example of rape myths in action, the sort of rape myths that make prosecuting rape so hard to do.

Brilliant - if a man admits to sticking his penis into a sleeping woman, he has admitted to rape - because any reasonable person would know that a sleeping person cannot consent. Therefore the defendant does not have a reasonable belief in her consent.

Sawdust - then why are judges getting away with eg saying women shouldn't get drunk, wear short skirts etc? Never mind a mistrial - who is in charge of disciplining judges and WHY aren't they doing their job properly?

I don't know that they make such comments when summing up for the jury - at least not in a generation or so. Here is a link of remarks made by a soon-to-be-retiring judge during (I think it must then be) sentencing hearing and by then the jury will have been discharged.

I think the Lord Chancellor's office is responsible for discipling judges.

In which case do you think a judge has erred ?

Those are comments I've read made by U.K. Judges in the last few years.

But did they make them before a jury ?

Yep! And I've not even included the worst ones!

The comments by the judge in the Irish rugby case include the words "reluctant consent" I kid you not.

I don't know much about the Irish rugby case, but certainly the law does regard reluctant consent as falling within the spectrum of all possible consents. The law draws a line at coercion. I could see the the judge might want to point out the distinction to the jury.

Another methodology (asking men) arrives at 6% of men, with an average of 6 repeat offences, have committed rape.

so are you implying here that the "few rotten apples" i.e. 6%, is what the research by Lisak is showing? Just curious so I don't need to go back to the original research (I wish we had a central archive somewhere with some commentary by subject specialists who are across the stats!!)

I know its more nuanced but I'm looking at gross figures i.e. my anecdotal figure of 30% of men v ?? from research. I am also taking into account the Australia research into CSA where they reference late onset sexual abusing (aged 30 onwards) in males as well - something I'd not come across before. That ties in with Lundy Bancrofts et al's work with battering men, where they observe correlation between men who batter (all forms of DV and coercive control) and child sexual assault. It's also reported upon elsewhere.

So I know the categories of sex offender will be different -I'm just trying to get a handle on the total percentage on men who may or have raped or sexually assaulted anyone, child or women

A jury anecdote. I used to know a gay man who told me his story of sitting on a jury in the case of a man being prosecuted for anally raping a prostitute. There were six men on the jury and six women. All the women were in favour of finding him guilty; all the men - apart from my friend - wanted to find him not guilty, on the basis that she was a prostitute and therefore had by default consented to sex. Ultimately, my friend said he played a big part in talking the other men around to deliver a guilty verdict. Afterwards the policewoman in the case came and thanked the jury because the guy had committed other violent sex offences and they'd been desperate to see him convicted.

Re. the "few bad apples" thing - depends in part on what you think constitutes a few, and also whether you see Lisak as setting lower limits or a realistic estimate.

6% is about 1 man in 17 or 18 - so several rapists in every packed commuter railway carriage you sit in. That's a fuck of a lot in my books. It really is the response to NAMALT - no, of course not all of them, but a hell of a lot - as in every single woman in the country will, on any given day, encounter multiple men who have at some point in their life committed rape. And those men don't conveniently come with the mark of Cain on their foreheads.

Also, that 6% figure is men who will admit to behaviours which, even if they don't see them as rape, they must at least see as less than perfect. Do people always admit to the worst of their behaviour? How many men in the "don't mention the word" questionnaire had a guilty moment of "yeah, there was that time she had a headache and I kept mithering her, and eventually she just went kind of floppy underneath me and I got on with it... but I'm not a nasty man, and I bought her flowers for her birthday, and in any case it's no different to her nagging me into taking the bins out - we all have to do stuff we're not into in a relationship from time to time" then tick the "no" box.

That's before you get onto situational effects like what percentage of men would rape a group of women who weren't "the same as their sisters/daughters/nieces" because they'd been systematically "othered" - e.g. soldiers raping civilian populations in a country they'd conquered or even a country they'd "liberated". So the 6% in peacetime might well become 20 or 30% or higher in wartime.

So to me the 6% certainly doesn't count as "just a few bad apples." It's a high number even if it's the top end estimate and there are reasons why you might well think it's an estimate on the low side.

@hackmum yep that story is what I'd expect - thx for sharing - it takes male moral leadership to bring the others into line - otherwise guys tend to victim blame the woman en mass and stick on the bro's side- it's a curious phenomenon - I start to believe that the guy who told me men were pack animals really nailed their true colours. Some are personality disordered but most, in the absence of moral leadership, stick with the objects they recognise - men - they have no felt empathy for women at all. It intrigues me that their default is to support the male whilst women's default is to see the truth, more often than not. What did your friend say to persuade them otherwise btw and what's his take on that situation?

@HairyBallTheorem

The situational effect is actual very relevant as many kids who are abused and /or killed are step kids. Again I don't know stats but know that much DV abuse of kids is from their stepfathers - they don't like the kids that they didn't father.

I suppose I'm beyond the 6% as 4% is the normal number quoted by psychopathy researchers and I know definitely that many rape and DV abusers are never diagnosed with the Cluster B traits they exhibit nor prosecuted for the crimes they commit. Just look at the rate of sexual harassment in UK Parliament for example - 19% of women reported sexual harassment plus another 25% reported other bullying or inappropriate behaviour.

To me the stats will only increase - like traffic on a newly opened motorway. Most of us can't tolerate the unpalatable truth that a large minority of men are not fit for intimate relationships of any sort, not fit fathers and are not safe to be around - unfortunately. I wish it were different but its not and the sooner we take that on board and look at different societal structures, the better

OP, in Ireland, there are sometimes calls by the gardaí for other victims to come forward even in the case of anonymity for the accused.

Something like (made up example): "a 55yo Dublin taxi driver has been charged with multiple accounts of rape and sexual assault that took place between 2012-2016. [some more info about the MO]. Gardaí are urging any women who experienced any similar assaults to contact Crimestoppers on 1800xxxxx. All calls will be dealt with in the strictest confidence."

Afaik, there's a period of time between someone being charged with a crime and a final file being sent to the Director of Public Prosecutions (who will decide if there's enough evidence to prosecute in court), so any additional charges can be added to the file. Not a lawyer though, so others may have more specific info.

Consent is so clear in concept so difficult in practice.

Every man or woman who has approached their partner and kissed them, or fondled them has effectively risked sexual assault. Consent isn't typically sought, it's assumed.

This is why we have the clause about reasonable belief, because in most cases, we don't actively seek consent. When people engage in kissing or foreplay, there's usually a steady progression of events and touching where consent once again is assumed, or in part implied.
When we know each other very well, it 'almost' goes without saying - and there's a REAL problem. A wife (or even husband) might not consent on any given occasion, despite having done so many times previously.

So is the wife who pinches her husband's bottom, or the husband who kisses the back of his wife's neck without asking first guilty of sexual assault? By the letter of the law, quite probably.

If we scrap the 'reasonable belief of consent' exemption - would we have to formally enter into an agreement? Asking permission seems a perfect solution if not particularly spontaneous, but we're still left with no evidence of an agreement and still face the problem of saying 'no' at any point in time which would supercede any previous agreement.

When it's sex on a one night stand, it seems more logical that a man needs to take steps to ascertain consent. But a lot of sexual assaults aren't one night stands, they are between long term partners too (with most never being reported). How often do partners ask if touching or full sex is ok? I would guess it's not often, it's assumed, or interpreted.

How can we make consent far more clear, and provable? until we find a solution for that, we won't make much progress.

Oh my God, a huge man made of straw

Consent is not difficult. Rapists just like to make it seem difficult to make it easier for them to get away with raping.

To be honest, I don't think taking steps to ask defendants what they did to ensure consent would be that hard.

Which doesn't answer the question of why you picked an incredibly bad example, Brilliant. Your example was a one-night stand where the man presumed (despite the fact that pretty much anyone who's ever had a ONS could tell you there's a very high risk of the beer goggles coming off the next morning) that he still had consent and penetrated a sleeping woman.

That wasn't borderline, that wasn't he said she said, that was clearly and unequivocally rape.

You're now back-pedalling frantically into "but what if a married couple occasionally pinch each other's bottoms without getting a form signed in triplicate."

Consent isn't difficult, it isn't this messy concept, it's actually straightforward. If someone isn't happy, you ask. (Seriously, how bad is some people's sex life if they spend their whole lives having to second-guess whether their partners are actually enjoying it?)

Woman in pain - STOP (unless she's explicitly said she is up for this particular sort of kinky activity on this particular occasion and you've agreed a safe word.)

Woman inebriated and not making sense - STOP.

Woman lying there motionless with her face turned to the wall - STOP.

Woman with tears running down her face - STOP.

Consent really isn't rocket science. People who try to persuade you otherwise in my experience have an agenda.

womanformallyknownaswoman: "What did your friend say to persuade them otherwise btw and what's his take on that situation?"

I don't remember! I have to confess it wasn't so much a friend as a very chatty (and very camp) hairdresser who did my hair for years - he was a lovely man, and would happily talk to me in great detail about his personal life. I imagine he said the sensible things that we would all say, such as being a prostitute doesn't automatically mean you consent to having sex with just anyone, but I can't recall.

I agree, it's interesting about the pack animal nature of men. And depressing.

MarDhea - that's interesting. So you could pick up offenders with a repeat MO (e.g. minicab driver), but presumably wouldn't be able to use a photo-fit of the description of them?

No it wouldn't be hard to ask what steps they took.

The difficulty is in proving if they did or did not. You're still right back at square one for many cases, which is 'he said, she said'.

I would argue that is it difficult though. When a man kisses a woman and touches her knee (or vice versa) - where is the consent. Usually nobody says 'can I touch your knee?' it just happens, or the other persons says 'no', but if they don't say no, either because they are starting to become fearful, or because they are ok with it, where is the actual consent given? how do we prove it?

An awful lot of sex is happening where consent isn't expressed verbally. Perhaps it should be mandatory that it is.
But even if it was, proving what was said is notoriously difficult, nigh on impossible.

There's going to be some men who really don't care what the answer is - they intend to have sex regardless.
There are going to be some men who genuinely do misread signs, and will stop once it's pointed out to them, but by then, they may well have already committed sexual assault by touching.
There are going to be some situations where things are getting very heavy (consentually) but a woman changes her mind, and the man has to stop and there is a difference of opinion about the precise moment consent was no longer given and how soon he stopped.

Any law we make has to take into account these situations and what is black and white on paper is no longer black and white in a courtroom when two teams are putting forward two different interpretations of events, signals, timings etc.

Even consenting to sex doesn't mean a woman consents to every possible sexual act, and the entire list of permissible sexual acts is rarely agreed beforehand.

Of course this is a far cry from situations where groups of men have zero regard for themselves let alone a woman and have the sole intention of carrying out their acts on whichever woman happens to cross their path, but it's the difficult grey areas that allow those men to exploit the law. They know it's difficult to prove, and they exploit that difficulty.

If those more extreme cases are difficult to prove, then is this not proof of why more subtle cases are never even brought before the courts - because there is such little chance of conviction?

There's no backpedalling, this is the state of play today. This is why it's difficult to convict. The extreme examples are already difficult enough to prove, let alone the more subtle ones, but I'm trying to explain WHY the subtle cases have an impact on the more extreme ones, and how those subtleties are used in defence cases.

Everything is not as clear as day as you suggest. The 'reasonable belief' clause is precisely why morning after sex isn't always a guaranteed conviction.

Well at the moment men are getting off when they admit never even speaking to the woman they penetrated. So that would seem very laissez faire regarding consent.

Everything is as clear as I suggest. Rape apologists like to make out it isn't.
I'm done now because i have spent too many hours arguing with this kind of rubbish on here.

Julie Bindels view
www.theguardian.com/commentisfree/2016/aug/12/juries-no-place-rape-trials-victims-deserve-unprejudiced-justice-judge

Quentin - absolutely. Walk into a hotel room with a woman you've never met before, ask your mate who's having sex with her if you can "have a go" and apparently this is consent.

Claim to have fallen penis first into a drunken woman's vagina - apparently this is not rape either.

Leave a woman bleeding from her vagina and in hysterical tears... not rape either.

The bar for "reasonable belief in consent" in the minds of the average jury appears to be so low it's positively subterranean.