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.)

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.

Brilliant mistake please could you explain what you mean by this. How does a rape defence team suggest evidence of intimate wounds is self inflicted??

That the woman had sex and afterwards went on to bruise or lacerate her own genitalia in an attempt to frame the defendant?

Or are you saying that by agreeing to sex at all, a defence team will argue that she consents to any injury though sex because sex, through the male lens, is "rough" and women simply have to put up with injury as a consequence of sex (almost akin to the principle of volenti non fit injuria ) ?

How exactly is it argued that an intimate wound to a woman is self inflicted?

If I alleged I had been punched by a stranger, my injuries would be assessed, but it is highly unlikely that a defence team would be able to run an argument that I had inflicted those on myself to make a false allegation. But if a woman has sex with a stranger or near stranger, physical injuries are to be considered self inflicted???

If brilliantmind is correct that defence teams do this in rape trials, (and he supports this) I think I'm beginning to understand why medical evidence of injuries (even in sex between one woman and multiple men who are near strangers) is ignored....

Because female intimate injury is accepted as the norm or deemed to be caused by herself and is not, apparently, incompatible with the man's reasonable belief in her consent.

My view is that by allowing this line of defence, the law enshrines even consensual sex as a potentially violent act which can reasonably cause injury to the woman.
Most women would say that is wrong - that there should be a principle that consensual sex (in general) should really not cause physical injuries.

No wonder the conviction rate for rape is so low.

Am I understanding this correctly.... Consent overrides injury? So a woman who consents to (what she assumes is 'normal' sex) gets anally raped, for example, but would be prevented from pursuing the case in court under the current law? Please tell me I've got that wrong

Pinky222 A woman can bring a claim for rape in the circumstances you describe.
Though whether a jury will convict is a different matter - because the prosecution would need to show that the man did not reasonably believe she consented to that act, rather than "normal sex." That has been shown to be an extremely high threshold.

It seems from what brilliantmind is saying, that if she suffered injuries as a consequence of what you describe, pinky222, this would neither prove or disprove consent and the defence can have a field day saying she inflicted those injuries on herself!

As shown in this thread- showing that a defendant did not have a reasonable belief in a woman's consent is extremely difficult and partially why the conviction rate for rape in the UK is 5.4% or thereabouts.
In what other crime would this conviction rate be acceptable??

My point was that if brilliantmind is correct- that defence teams routinely challenge medical evidence of intimate injury on the basis that they are self-inflicted, then I am not sure how women can ever succeed in claims.

My view on reform would be that medical injuries (including bleeding) should be given much greater weight. I cannot believe I even have to state this.
As an absolute minimum, where these injuries occur in situations of multiple sexual activity or between strangers or near strangers, and where rape or sexual assault is alleged, this evidence should be given special status and juries should be directed to treat it as such. If not strict liability, could the evidence of injuries at least partially reverse the burden of proof? So that where there is evidence of these types of injury, a defendant will need to jump over extra hurdles to show his reasonable belief she consented?

Why should a man's asserted belief in her consent (basically "his word") trump a woman's physical injuries diagnosed and documented by a medical professional in this field?

And I'm keen to hear brilliantmind's views on what a "normal injury" to a woman is during sex.

Are the posts about self inflicted injuries from actual trials/real cases? Sorry, I'm not clear from the posts.

I know the rate from report to conviction is often corrected to reflect those actually prosecuted and I know the former is useful. However it's interesting that on reading it seems the prosecution conviction rate for rape isn't particularly low in relative terms, and when considered alongside comparable crimes higher than some. Juries tend to convict at a higher rate where there is a certain type of evidence, eg, having indecent images of children - there is clear physical evidence, likewise drug possession etc. When it comes to having to factor in thinking processes/intentions conviction rates are low, so eg attempted murder conviction rates are lower than rape.

Of course arguably attrition rates are important - very important overall without argument - but also in terms of which rape cases are getting before juries and theregore how meaningful comparing prosecution conviction rates is.

But I too think sexual injuries where there's a rape allegation puts it with the physical evidence type of case. I linked here or another thread work beginning to look at the links between porn and sexual violence for young people. It'll be interesting to understand more about the younger generation.

Chaos we are awaiting to hear from brilliantmind which trials he refers to, where defence teams argue medical sexual injuries are self-inflicted. Watch this space...

My point - and I am trying to be pithy - is how can a defendant successfully argue he has a reasonable belief that a woman consents to activity which results in pain, bruising, bleeding or other medical trauma or injuries? Especially if he doesn't know her?

The reasonable bystander would argue that in most cases (not all) this belief is unlikely or unreasonable.

So a man's defence team should not be able to argue or put forward a line of questioning that suggests a woman chose to be injured as part of a defence to rape except in very specific, tightly drafted circumstances.

Otherwise surely its a license for men to hurt women and for a man to say "I watch lots of porn where women get hurt and so I thought she wanted it and that's reasonable?"

Otherwise surely its a license for men to hurt women and for a man to say "I watch lots of porn where women get hurt and so I thought she wanted it and that's reasonable?"

I think this has crept in.

Sorry - I meant brilliantmistake not briliantmind. Trying to juggle real life with mumsnet!

chaos Am happy to stand corrected on conviction rates for rape from reported incidents of rape. Definitely not an expert in this field. And I would really prefer to be wrong in this instance.

The Guardian seems to suggest conviction rate is 7.5 % in the article below (in the amendments at bottom of article) for 2015- 2016.

www.theguardian.com/society/2016/oct/13/reported-rapes-in-england-and-wales-double-in-five-years

"As such, the conviction rate in 2015-16 was 7.5% of recorded allegations.."

Its not terribly encouraging, is it.

And that figure also does not take into account unreported rapes...

However if attrition rates are ignored, the conviction rate is higher - 58%:

www.theguardian.com/commentisfree/2012/mar/19/myths-about-rape-conviction-rates

Thanks for pointing that out Chaos

Re-reading back through the posts, my hypothetical scenario I can see this would be possible under 'consent withdrawn' but I also agree that even if the CPS allowed it to get to court, getting a jury to convict is another matter.

My point - and I am trying to be pithy - is how can a defendant successfully argue he has a reasonable belief that a woman consents to activity which results in pain, bruising, bleeding or other medical trauma or injuries? Especially if he doesn't know her?

He is going to argue (and this is precisely what they do argue) that the sex was extremely intense and that brushing occurred as a result. The more significant the injuries, the less credible that becomes, but you're right back at a sliding scale of likelihood.
A bruise on your calf might be thought of as pretty normal, a black eye would definitely not. Marks on the wrist might not look very good, but if they were into BDSM it might be more credible.

Whatever situation is presented by the woman, the defence will have some explanation for. How believable that explanation is, is another matter.

I would think any sensible man would run away from anything remotely kinky or groups sex related on a one night stand precisely because it was so risky even for a man with no I'll intentions, but without sounding too prejudiced I would also imagine a man who is looking for sex within hours of meeting is probably so sex mad his perspective of women is already twisted. For a famous man wanting quick sex it's even more distorted because they really do think most women can't wait to have sex with them.

In some of their my minds, they think getting in a cab with them = up for anything, mates included.

Still these aren't typical rapes. These are exceptions. Most are between two people who at some point were getting along OK then the man became preoccupied with sex.

Sorry for repeating what some others have said. Using phone so only had partial view of all posts.

Chaosandchocolate, no need to apologise, it's a very emotive subject and as a man every word I type is going to get scrutinised. I make mistakes and I word things badly sometimes, partly in haste to respond. We all want the same thing though - a better way forward. I do fear that porn and BDSM are only making it even more complicated.

Thx for the Julie Bindel link Quentin

She's saying the same thing as me - have no juries and replace by "expert" Judge and 2 lay experts. My assumption is these proceedings would be open, not closed. The lay experts can still be a problem dependent upon who they are, but assuming the qualification is understanding the complex psychological dynamics of grooming, threat, coercion and appeasement then it's better odds than a jury.

The law isn't the major issue imo - it's the lack of understanding in juries as described earlier where a gay guy, by explaining to the male jurors about the dynamics, was able to change some minds and hence secure a conviction. Its the men that are the problem - who protect other men by default and have rape myths imprinted in their minds. They only listen to other men, not women.

brilliantmistake The examples you have given for physical injuries are for other parts of the body and I accept that these could or could not be indicative of forced sex. (eg bruise on calf/ black eye). Though I fail to see from your example how a black eye could be self-inflicted??

For the avoidance of doubt- I was referring to internal intimate injuries, revealed through a medical examination.

How could a defence team argue these injuries be self-inflicted?

That the woman had sex and afterwards went on to bruise or lacerate her own genitalia in an attempt to frame the defendant?

www.thefword.org.uk/2010/03/rape_victim_jai_1/

With injuries, it's going to depend on the nature, severity and circumstances.
If the defendant admits sex took place, there would then be a question of whether the injuries were consistent with the type of sex they had... Bondage, against a wall, vigorous penetration etc, plus the severity. A bruise on a leg would probably not hold much sway, a bruising around the neck would.
If the defendant denies sex even took place, then depending on the nature of the injuries, a defence team would be looking to explain how they appeared, and self infliction would be one possibility.
Scratches on a man might suggest a struggle, but they might also suggest heated consentual sex if they are down his back.
How many bruises would it take for a jury to be convinced? Where would the bruises need to be?
If there were no injuries at all, what would that suggest? (Not all rapes incur injury).
So injuries add some weight to a rape allegation, it's by no means proof positive.

I've been having sex for over thirty years now (on and off, for the clarification of doubt, not continuously) and I have never, ever sustained any sort of injury. Do people these days seriously expect bruises and blood at the end of normal sex? Has the world changed that much?

I stand by my original suggestion - inflicting any sort of injury during sex should be criminalised. Then if people want to engage in kinky stuff, they'll have to be incredibly careful that they genuinely have consent. (Wanders off muttering "bloody 50 shades of shite has a lot to answer for..." in a dyspeptic middle aged manner.)

The examples you have given for physical injuries are for other parts of the body and I accept that these could or could not be indicative of forced sex. (eg bruise on calf/ black eye). Though I fail to see from your example how a black eye could be self-inflicted??
I used the example of a black eye in direct contrast to a bruise. Where a bruise would carry little weight, and most could easily envisage that being a result of vigorous sex. A black eye however is far from easily envisaged or expkained. Of course a far fetched story to explain a black eye could be invented, but not many would find it credible.

This is what I typed earlier:

A bruise on your calf might be thought of as pretty normal, a black eye would definitely not.
That is where I am saying a bruise is unlikely to be interpreted as convincing evidence, a black eye certainly would be. Next to nobody sustains a black eye during sex, lots sustain a bruise.

Brilliant, again, sorry if I've missed it, but are you posting lots of lengthy scenarios based on professional experience or other knowledge? I'm genuinely interested in knowing how injuries typically affect the outcome.

Brilliantmistake The idea of female self inflicted injuries (especially intimate injuries) in order to make a false allegation of rape is outlandish to the point of being almost unbelievable.

This is only one case- have you seen this defence frequently run in practice?

Surely with this defence, a man could simply argue (if he did concede there was sex) that it was "such and such.. (rough) type of sex" and therefore will always be acquitted even in the face of quite serious injury?

I think medical evidence of injuries really need to be given greater weight. The courts should not entertain any misogynist tropes by defence teams that somehow injuries were desired or inflicted by the women themselves (except in very exceptional circumstances). Injury should not be normalised or dismissed - otherwise the courts are replicating the tropes of porn culture that have contributed to sexual assault and rape.

I feel like I'm wandering around in the Republic of Gilead now.

There are two mutually exclusive assertions in this thread.

1. That the law is as clear as day about what rape is.
2. That judges and juries just aren't understanding it which is resulting in low conviction rates even amongst those cases that make it to court.

The law is not as clear as it looks at first glance and that is largely down to the reasonable belief clause.
Judges and juries struggle to reach a guilty verdict because of this clause, and because of the particularly stringent standards of evidence required.
That is notwithstanding the difficulties in gathering convincing evidence or some of the prejudices or assumptions jurors may make.
Somewhat surprisingly some academic research has found that female jurors are less likely to find guilty than male ones. I have no idea what to make of that.

www.theguardian.com/law/2011/aug/12/layla-jailed-after-reporting-sexual-assault

People do get accused of self infliction, however hard to believe.

Definitely think there is a link between porn and BDSM attempts where men are thinking more extreme acts = better sex.
It's becoming less sensual and far more physical, not for all, but for enough to see a rise in certain types of sexual acts. That isn't to say group sex, anal sex, BDSM are wrong, but some of the associated thought processes involved in them are very damaging. It's not just men either, young women are getting caught up in believing this is de facto and expected of them.
I don't want to list all terms, but 'forced', 'filled', 'hard' are commonplace. You'll be hard pressed to find sensual, intimate or passionate. Coincidence? No.

Surely with this defence, a man could simply argue (if he did concede there was sex) that it was "such and such.. (rough) type of sex" and therefore will always be acquitted even in the face of quite serious injury?
They'd try to claim it, absolutely. Back to the sliding scale of plausibility. A bruise is totally believable. A black eye is not. But where would 2 bruises and a small anal fissure fit on that scale? Juror A might think it's obviously a result of rape, juror B might still say it's vigorous sex.

We've had medical experts convince a jury that a baby was shaken to death. A few years later, that same evidence was disputed by other experts and a conviction overturned.

brilliant mistake how do you know these arguments about medical evidence being self inflicted by victims are routinely used by defence teams in rape cases?
A respectful question.

If I had my ludicrous way, every room would be recorded and encrypted in manner that could not viewed by anybody unless a specific court order was made to view the contents.
Unrealistic I know, but that is just about the best solution I can imagine.