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 don't believe I said they were routinely used. I thought I'd said a defence team would look to that as a possibility if the accused denies sex had taken place at all, or if the account of the type of sex was not consistent with the injury. If he says only oral sex took place and she is exhibiting bruising to her inner thighs, a defence is going to challenge her assertion that he caused them, and they are going to look for other ways they could have occurred.

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

That case is awful. It horrified me.

If he says only oral sex took place and she is exhibiting bruising to her inner thighs, a defence is going to challenge her assertion that he caused them, and they are going to look for other ways they could have occurred.

Yes, but the point about rapists, is that they lie.

I'm finding it difficult to follow the thread because I can't differentiate between speculation/deduction/the law in theory/in practice etc. I can appreciate any of these - but it's confusing not to know.

metro.co.uk/2017/08/24/woman-jailed-for-false-rape-claims-against-nine-men-in-four-separate-encounters-6875002/
In this case, the defence team argued precisely that. That injuries were carefully inflicted.
The wouldn't argue it for the sake of it, only if they believed it was called realistic possibility, but it does get argued.

Brilliantmistake you are quite right, you did not say defence teams routinely use these defences (victim self-inflicts their own injuries) - but you did imply this. See below:

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.

You say " A defence team would easily suggest a wound was self-inflicted... its just what a defence team would do." So this suggests it is a commonplace reality.

That's why I asked the basis of this assertion... whether you see this in practice or not...

Yes, but the point about rapists, is that they lie.
They do. Blatantly most times. I didn't think that was in question. But how do we prove it?

I'm not saying it's easy. But surely "reasonable" doubt should not mean any lame cock and bull story a man makes up to get himself off the hook. Like many of the ones which have worked in the past. "Oops I tripped and my penis went into her". "Oops it was a case of mistaken identity". "She cut her own thighs to fit me up"

You're right I ought to have said could rather than would. Apologies.

but how do we prove it?

We prove it with medical evidence which corroborates the victim's account, where that medical evidence is available.
Otherwise defendants who are guilty benefit from their own lies?

You're right I ought to have said could rather than would. Apologies.

Brilliantmistake- thanks for the apology if that was directed at me.

Are you now stepping back from your position then, that defence teams say medical injuries are self-inflicted?

To be clear - is this actually very unusual and you are simply positing this as a possible argument?

Good grief.

I agree Erishkigal, but some of the recent high profile cases don't give the public much confidence do they?
It would seem that you can agree to sex under the influence of alcohol (and argue about the amount needed to losectge capacity). You can invite a mate or two over to join in, and you can video it too and still leave enough doubt that maybe she was ok with all of that.

My gut says if that's not rape, it really should be some other crime of gross wankerism and still serve a sentence for it.
If you want group sex, you better find a girl who wants it enough to put it in writing.

I definitely didn't mean to imply all medical injuries are put down to self inflicted. I was saying that some will be put down to vigorous sex, some down to other causes with are nothing to do with the allegation, but yes, if it is a realistic and plausible option they will argue self inflicted and they have done so. But again a lot of rapes are not laden with injuries, and many that are, the injuries will often have multiple possible explanations. A bruise could have 100 explanations, a tear in the vagina a few (trauma from rape, trauma from extreme vigour, a cut from a fingernail.
One side is trying to argue an injury proves rape took place, the other side is trying to demonstrate that it does not, and to do that, they need to explain other ways it could happen. This is just how it works.

I definitely remember reading an article (probably about 10 years ago) where a woman was recounting her experience of testifying in court - her rapist was found not guilty. She had been seen talking to him in a bar earlier in the evening, and he later raped her in an alley near the bar. She fought back, sustained quite a few injuries during the fight, and the defence argued that she'd told their client that she like rough sex and thus the injuries were sustained during consensual rough sex. The jury acquitted. Despite her never having met the man before that evening, never having been in the slightest bit interested in rough sex, and despite the implausibility that any woman would want to engage in said rough sex down a dark alley.

So sadly Brilliant's guess as to how a defence lawyer would handle this sort of situation isn't so far off the mark - yes, there have been cases where exactly the sort of defence he's describing has been used. (And for me it's a case of "don't shoot the messenger" - I don't think Brilliant likes this situation, it's just a question of how we could change it without changing things like presumption of innocence, burden of proof etc.)

It seems like juries go into court with an idea that the scenes they've seen in porn/read about in 50 shades are the norm, and therefore it's plausible that an entirely ordinary woman could actively consent to being brutally raped with a side order of a violent beating, in a minging dark alley, just for the hell of it. The question is how the hell we could change public attitudes, or whether there would be scope for an alternative to jury trials in this instance.

I cannot explain how 'my penis entered her by accident through falling' could ever be credible.

I agree Erishkigal, but some of the recent high profile cases don't give the public much confidence do they?

I know. The two lame and cock bull stories I gave were real examples. I just think that's not "reasonable" doubt.

Cross post

The question is how the hell we could change public attitudes, or whether there would be scope for an alternative to jury trials in this instance.

I definitely think the rape myth/believing women problem should be acknowledged fully and other options explored.

YY. I don't find it particularly satisfactory that people just throw their hands up and say it's totally impossible, he said she said you can't prove it etc. Meaning rape might as well be legal. It is partly about how important women's lives are considered to be.

I hate the situation because simple logic says guilty people are getting off.
But if 10 accused are stood before us, and one is innocent, what should we do?
If you wanted to be logical, you might say lock them all up, and save 9 or more women from future rape, and pay that price via one innocent man. Makes some sense to some people, but it's a dangerous path to go down.

But it's not just a logic problem. They could stop letting defence teams admit sexual history evidence unless it was completely relevant to the specific circumstances. They could not pass women's underwear around the courtroom. They could try to educate the public on rape myths. They could look at other ideas like expert panels. The rates of reported rape to rape conviction are shocking.

Sorry if this has already been mentioned. Anecdotally.....ime the legal profession are confident that juries generally reach the right decision. Backed up I think by 2010 research, Are Juries Fair. Too tired to reread but it's easily found online and it's used a lot when stats are quoted.
Suggests perhaps it's not simply juries struggling with reasonable doubt as an idea (which they undoubtedly do).

Basically, the state negates the right of a woman to say no by permitting legal procedure in which her no only has meaning if that no is witnessed by someone credible. So it basically takes two voices on behalf of a woman to overrule one man's voice.
That's fairly accurate, but I don't believe it's because she is a woman. It's because she is the accusor, and the law places the onus on the accusor to prove guilt, not for the accused to prove innocence.
She is up against it from the start not because of her sex, but because proving what happened behind a closed door is so difficult.
On top of that, she faces the potential prejudices against her sex, but I think that is more social than legal.