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.)

If you’re the kind of man that doesn’t know when someone is consenting and cannot work this out from the numerous contextual clues there will be then do not put yourself in a situation where you might rape or sexually assault someone. A simple solution. Worrying about poor men who just can’t tell if a woman wants to have sex with them or not is a waste of mn time. I’m sure there’s loads of men on reddit that will love to opine about how hard it is to know if women consent to sex ffs.

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

I think that's the truth / crux right there.
If someone wants a threesome, that's there business, but surely the default position for a man walking in on two others having sex has to be 'I shouldn't be here, let alone joining in' - that's assuming the two having sex are even having consentual sex in the first place.

He should be thinking 'I'm completely out of here, and even if she seems to want me involved too, it's not worth it'.

We have to be careful about the specifics of the recent case, as we don't know all the facts, but in general, there's got to be more onus and formality on getting consent in these situations, regardless of the spontaneity aspects.

Maybe it's not a complete solution by any means, but if there was a clause about sex with multiple partners and a much greater burden placed on the proof of consent? In simple terms, if you're going to have group sex, you're going to have to do a lot more to be sure of consent, and that specifically excludes 'joining in'. How that would be achieved I don't know, but the joining in should be considered de facto rape maybe?

It's not going to help every woman in every case, but it will help some women in some cases, and that's something.

Well, I did also wonder about threesomes as well in my suggestion about ABH during sex which I made right up at the start of the thread.

To recap - I suggested a separate offence of "causing ABH during sex" which would be strict liability (if I've got the legal term right) - i.e. the defendant's belief that the victim "wanted it" would be irrelevant. If you went to the police with physical evidence that you'd sustained an injury during sex, that would be enough to bring a prosecution. (Cf the Spanner case where a group of men into BDSM were deemed not to be legally allowed to consent to assault.) IMO, this wouldn't stop people actually engaging in BDSM, but they'd have to be bloody sure they had consent and that their partner was an enthusiastic participant in what was going on.

If I'm reading you correctly, you're suggesting a similar situation with threesomes - strictly speaking illegal, but the state isn't going to poke its nose in unless one of you makes a complaint. Not sure how that would fit with the fact that some people choose polyamory or go to swingers clubs. (Which is not to say it's always consensual - I had a female relative whose abusive husband's kink was coercing her into sex with other men. Presumably this would now be covered by laws on coercive control, but back then there wasn't a whole lot anyone else could do for her beyond watch in horror and offer house room if she found the strength to leave him.)

Again in a perfect world, yes I think I'd be in favour of 'ad hoc' threesomes essentially becoming illegal. Not because I'm against group sex, but for the protection of a woman in a spur of the moment situation. Whether that would include the FFM situation, I don't know.

Quite how you could arrange a formal group sex activity and document / provide proof, I don't know, and still, you've got the 'said no during the act' situation to contend with, but it would at least address the situation of 'she looked like she was ok with it, so I joined in' situation.

Swingers clubs? again - so complicated. What can you imply from being at a swingers club? not very much really. Doesn't mean they will sleep with just anybody, doesn't mean they want group sex. They might just be voyeurs etc. Essentially it's not really any different than going down the pub is it? All you're doing is meeting other folks who seems to be open to the concept of sexual activity with select others, which may not be physical.

Sustaining an injury during sex and strict liability (correct term) would not be practical I don't think. There would have to be some sort of grade of injury or injury count. That said, a normal 'injury' during sex would not lead a woman to allege rape, she'd put it down to being a bit overactive, so a man wouldn't have to be too concerned over a small bruise during active consenting sex. But, if she alleges rape, then yes, it's really going to matter (and rightly so). A defence team would easily suggest a wound was self-inflicted. That is NOT apologist, it's just what a defence team would do.

Coercing someone into a sexual act is illegal, but that's even harder than rape to prove, especially for activities like swinging, threesomes etc. The judge in the recent case referred to 'reluctant consent' which many people believed was an oxymoron, but the binary consent of 'yes or no' can also be seen as a scale, where there's an enthusiastic yes at one end and 'yes ok, but I'm tired and not fully in the mood' consent at the other.
I know lots of people here find this a very emotive subject and thus everything is as clear as day in their eyes, but the conviction rates speak volumes and indicate that it's genuinely not that simple and judges and jurors often find themselves having sympathy for both sides.

There's a reason for the 'reasonable belief clause' as I mentioned before, but it affords way too much scope as you've alluded to.

Hairy You couldn't release a photofit of an alleged rapist into the public domain, such as tv or newspapers, or (afaik) show it to someone outside the context of the investigation. I think a photofit created by one victim can be shown to any additional woman who comes forward, though I'm not sure at what point they do it (e.g., it might be a better idea to get each women to create her own individual photofit first, so as not prejudice her recollection, which could weaken the case if it goes to court).

You can't show them an e-fit or photograph if you know the name of the suspect and the suspect can be brought in for identification.
You can show one if you don't know the name of the suspect, but only after the witness has already provided a description (and that description has been recorded).

This is part of the P.A.C.E. Code (Police and Criminal Evidence Act).

it's quite complex too - they have to view at least 12 photos and can pick one out until at least 12 have been shown. There are more rules on this too.
That said, most rape victims know the attacker, or can provide enough information to track them down fairly easily even in a one night stand type situation. But still, there are some random attacks where this isn't the case.

Really interesting thread. Not a lawyer and not quite following all the detail here, sorry have skimmed over some posts.... but I have started to have a bit more head space for anonymity for the accused in a pragmatic way.

I can see the benefit of creating conditions where the jury might feel freer to actually weigh up the evidence and decide on reasonable doubt in a less fearful way if they had less idea of stigma in their heads.

Maybe a secondary "lesser" crime or finding... Particularly re intoxication or capacity, or not taking due care.. a wider range of remedies available to the court including non custodial sentence. Alcohol is a particularly big issue in confusing juries/anyone re consent.

Pure speculation on my part, not at all evidence based.....destigmatize being accused, make the outcome more palatable, the consequences less draconion.

(The prosecution apply for anonymity to be waived altogether in certain conditions - not just details/efit?)

I started and lost this post, hope I haven't posted these thoughts on one of the other threads.

Brilliant The PACE is a UK act - I was talking about Ireland above, trying to outline how it works when the identity of an alleged rapist is kept anonymous until conviction. Not a lawyer though, hence the guesswork.

It's a really good topic and something everybody needs to think about - how to remain fair, but try to improve our justice system.
It's pretty obvious in this specific type of case, women are not getting anywhere near a fair deal but finding a way to improve that legally is a nightmare.

Truth be told, law isn't really the answer. Behaviour is. Or more accurately male behaviour. Maybe deeper than that, is the way male's thought processes work or are nurtured to work. It's got to change.
Rape's always happened, but there seems to be a lot of influence by porn on the nature of rapes now. What was once very extreme sex is being perceived as normal, or expected and every woman is secretly yearning to do what boys are seeing in porn movies (so they think).

I've just read this thread following on from the Ulster rugby trial thread where the whole thing has gotten me incensed & depressed in equal measure.

In the Ched Evans case my interpretation of the overturned verdict was rather than 'he was innocent' that the jury believed that he as an individual could be stupid enough to think that someone who had never spoken to him, or possibly seen him, and who was in an extremely drunken state, was able to consent to having sex with him.

I've read with interest some of the suggestions about new ways to legislate proceedings & all have their merits but also it seems potential opportunities for exploitation.

The points that seem crystal clear to my simple mind are that education on this subject needs to be addressed early on in schools. I've been really uncomfortable for a long time about the easily accessibility of porn for young people & this almost used as informal sex education which contributes to a mentality of 'I fucked her up the arse' as being a 'win' of some sort for young men.

I always thought that the Ched Evans case was overturned due to 'new evidence'.

This 'new evidence' was two men that the victim had slept with (and consented) one before the rape and one after, and they both said the description of the woman having sex was very similar to that of the rape (saying to fuck harder if I remember correctly), and that basically told the jury that this woman clearly wasn't raped

It didn't change the fact Ched never spoke to the woman. It didn't change the fact he left via a fire exit. It didn't change the fact that he didn't know this woman's name. It didn't change the fact she was filmed by other 'mates' at the window.

How very very sad indeed.

A man can be convicted of rape, and then be on trial for a different rape; but cannot have his past brought into the trial. A woman can be raped, and her sexual history is exposed (like that has ANY bearing on the rape).

How did we get to this?

Brilliant can you come back and explain what you meant by your post about penetration while asleep?

Sorry, didn't refresh (I have obviously had this thread open half the day!

This 'new evidence' was two men that the victim had slept with (and consented) one before the rape and one after, and they both said the description of the woman having sex was very similar to that of the rape (saying to fuck harder if I remember correctly), and that basically told the jury that this woman clearly wasn't raped

Yes. And this amazing new evidence allegedly came to light after Ched's family offered a cash reward for information.

The following morning, in a sleepy stupor, the male elects to penetrate the female and does so for a small period of time.
The female awakes and no longer shares the desire to have sex with the male, the male accepts her decision, but the female objects to the fact he has already penetrated her and alleges rape.

This is not "complex". It is rape.

Yes. And this amazing new evidence allegedly came to light after Ched's family offered a cash reward for information.

That’s right. But that meant nothing to the Ched fans. I had numerous arguments with twitter folk who were very happy Ched had finally been ‘found innocent’ (same as not guilty apparently), and that the ‘bitch’ should go to jail for lying.

There are similar tweets from the rugby case too.

And if you read any daily fail comments on the rugby case and subsequent rallies, you will lose all faith in society.

Brilliant can you come back and explain what you meant by your post about penetration while asleep?

Oops, yes. If someone is asleep they are incapacitated, unable to consent so in most cases it is rape.
The reasonable belief clause however opens up the defence that someone assumed it was still consenting if they believed the other person was responding whilst waking.
This situation also exists when a man or woman kiss or touch each other without asking permission, or reach around in bed and touch their partner sexually without asking permission... That is sexual assault, but it is a common behaviour amongst consenting partners who do not expressly give that consent.
This is why the reasonable belief clause is both good and bad. It allows for the situations where consent is not expressly given but inferred sometimes mistakenly, but it then also gives others the chance to claim 'oh but she SEEMED to be ok with it' because she didn't protest enough or at all. Somewhere between both of those is the massive grey area that is used by defence teams and used to create that reasonable doubt in the mind of a jury.
That isn't to say it is right or wrong to have doubt, but it's definitely exploited in many cases.

Oops, yes.

Brilliant, I appreciate you are trying to contribute so I'm sorry to pick on your words. But oops yes in response to realising you used a terrible example is very flippant. Not because I'm sensitive or emotional discussing rape, because it matters more than that.

Reach around your partner and touch her breasts because you're in the mood? It's potentially sexual assault.
Stroke your husband's inner thigh to turn him on? That is potentially sexual assault to.

Because we assume they are going to be ok with it or say no. But saying no is after you've done it, so you've already assaulted them if the answer is no. This happens every day but 99.9% of instances will just be dealt with by 'not in the mood right now'. When this happens with a new partner though, the risk increases. When you date a new partner and lean in to kiss for the first time, you better be sure it's a welcomed kiss. If you kiss then touch her, you better sure the touch is welcomed etc... These are milder (for want of a better term) instances of where people misread. When you are a famous celebrity and the types of sex you engage in are far more casual than usual, that becomes their defence... that is usual for them to be in a bedroom just hours after meeting and they get easily confused about the signals. I'm not defending that, just explaining it

I read the "oops yes" as a comment on having started to post a few posts back, included a quoted question then hit send before actually answering it. Unfortunate choice of words given the context but not intended in a malicious way

I'm not defending that, just explaining it.
Thank you.

Ok sorry for misunderstanding Brilliant. And for sarcasm.