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.)

Since there are so many women here, who will be far more aware of the unreported instances of rape, would you say most occured in a ONS or very short term relationship, or is it happening when longer-term partners are doing it, either overtly, or because they are just assuming and women are being emotionally bullied into it (e.g I really don't want sex, but will suffer it )?
Since so many are going unreported, how is a reasonably accurate picture formed about it?

I'm thinking out aloud, but it's been easy for me to visualise as some of the higher profile cases, but these are possibly exceptions. But if most women are suffering because a boyfriend wont take no for an answer and a woman gives up the fight, then surely it would be better to try and improve laws for those cases rather than the more high profile ones?

Yes, ideally a law should improve the situation for all women, but if it's a step by step process, where would the biggest impact be?

I agree that rape myths need debunking & seeing how some intelligent people I know have reacted to the Ulster rugby trial is so shocking & there is judgement such as 'she shouldn't have gone there' etc that levies at least a portion of blame on the victim. This is more widespread than I would have thought, (IRL these discussions don't normally come up without a trial in the press)

The change needs to happen from within the culture of the skewed perception surely? I was thinking of similar to brilliant of the. CCTV in every room. I know it's equally as unlikely but a media campaign to get male celebrities & sports icons to come out with sound bites like 'porn isn't a reality of sex', 'check you partner is enjoying themselves and if you're unsure, stop', 'don't have sex with someone who is too drunk to be able to have a sensible conversation' etc would be good.

Basic things like this which seem to be common sense have gone out the window. The stigma rightly attached to being a rapist means that there is a lack of reformed characters preaching about having seen the light the way there is with assault, burglary, terrorism.

Just as a bit of a back up Northern Ireland has a history of being quite forward thinking with campaigns such as drink driving & speeding-some TV ads couldn't be shown before the watershed as they are so shocking. Recently a new ad is on TV about the different forms of domestic violence which I wouldn't have Imagined even 5 years ago.

There was a good ad campaign a year or so back with a man - sober - watching through the window as his drunken self sexually assaulted a woman, with the slogan "don't be that man." Maybe we need more of that sort of public awareness campaing, coupled with, as buckeejit suggests, high profile men being prepared to say "porn is not real, check the woman you're with is enjoying herself, if in doubt, don't."

I mentioned upthread the fact that getting rid of presumption of innocence, and shifting the burden of proof, is incredibly dangerous - see for example the way that is used against women in countries like Nicaragua, where women are imprisoned for having miscarriages because they can't prove that they didn't take mifepristone. Tempting as it is to shift the burden of proof in rape cases, I think as a legal precedent this is just too dangerous a thing to do.

Incidentally, someone posted a link to a Guardian article on another thread, analysing conviction rates once crimes reach court, and on that bench mark, rape doesn't do badly - though of course this could be partly self-selecting - only really strong cases make it through the filters of women themselves thinking they might stand an outside chance of getting justice because the evidence is so strong (because we know the odds are stacked massively against us, and the trauma of reporting will be massive), and the CPS agreeing with them.

www.theguardian.com/uk-news/2015/mar/12/rape-cps-police-prosecutors 2015 article - only 28% of rapes reported to the police make it as far as the CPS.

rapecrisis.org.uk/statistics.php Rape Crisis' summary of the stats.

5.7% of reported rapes end in conviction. However, if we're interested in how juries see things, bear in mind that out of 100 cases reported to the police, only 28 make it to the CPS, then 5.7 of those will result in a conviction. So (and I'm not sure if the CPS go ahead with every case that makes it as far as them, I don't think they do), approximately 1/4 of cases actually getting as far as court result in a conviction, the other 3/4 are acquittals.

So (if I'm doing the sums right) it goes:
For every 1000 instances of rape.
150 taken to the police (85% don't report at all)
42 go to the CPS
8.4 convictions.

I think other crimes take place in places or through systems where evidence is less refutible.
I also didn't say it was coincidence, I said I didn't think the law was specifically making it difficult because of your sex.
I then added that yes, other social factors (such as sexism) take their toll too.

Honestly can't see how that read as coincidence.

The 1 in 10 was an illustration. It was about the idea of convicting them all in order to spare women. 1 innocent man to spare many innocent women. It was never about actual statistics. 1 sacrifice to spare 2 is the same principle as 1 to spare 100,000. Logically worth it. Ethically worth it, who can say?

Thank you for explaining that. Took time and effort. I can't ever be a woman, I can't know or suffer the same things. I can see what I believe to be injustices, some of which we will agree on, some we won't.
In truth I doubt I can change much, but I can once in a while say to other men "hold on, that's wrong and here's why", and from time to time I'm likely to do or say something that is typically male, possibly mysogynistic, possibly judgemental. I'm human. But I'm working at getting better at it, being a little less male and a little more human that is. I'm always going to be a work in progress. If you can live with that, I'm damn sure I can live with a little criticism 😊

I think this is a really good thread.

Materialist and thank you for a really insightful post. I'm off without internet for a few days - will be interested to catch up when I get back.

Given the well-publicised horror of what women endure during a rape trial, how likely is it that there is ever, statistically, 1 out of 10 men in the dock who are innocent?

I'd like to know the answer to that too. I remember seeing a Buzzfeed article that explored the probability of a man being falsely accused of rape. Among other things that were more likely (such as being struck by lightning), the article claimed that a man is 33 times more likely to be raped than to be falsely accused of rape. I didn't check the article's stats but it's an interesting idea, and supports the conclusion I'd already come to: if a man is acquitted of rape, he's probably a rapist.

Thanks all - really good food for thought on this thread

@TheBrilliantMistake

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.

I don't agree with your thinking here - no problem is normally single faceted with one solution. It requires approaching from different perspectives - for example if a car starts making a thumping noise and slows down for no apparent reason, there's a number of actions taken by the driver to isolate the fault - consult the dashboard, is there a red light somewhere, if that red light is resolved does that make the original problem go way and so on.

Seems to me there isn't a sufficiently nuanced approach to the issue of what's going wrong with enforcing the law around sexual assault against women and really no male in power is that bothered about it as it doesn't affect them.

Perhaps some informed experimentation needs to take place with different models, after women have been consulted about what works for them, - and then pilot a couple of options and measure the results. Would be interesting to run a case through two different models in parallel and compare the results after smoothing any major differences - there's not enough systems thinking in law nor in many govt funded services imo

I agree with everything @Materialist says and the good news is tech provides the answers now - there's some great new technologies that would allow women to report perpetrators securely, in private, and only be alerted if that same perpetrator was reported by another. It avoids the libel laws and is the way to go - and women will have to fund this themselves….

Thanks so much materialist for your powerful words and insights.

This is why we cannot simply wring our hands and say it is impossible to change the law in the face of abysmal attrition/ conviction rates.
It really must be possible, even if it is a crime taking place behind closed doors.

And I'm fascinated by the social/ community measures you propose.

woman I want to know more about the measures in respect of notification of perpetrators to other women via technology. Is this really legally possible?? What a great start-up idea. What it be an app? Or a subscription service that women could sign up for, for example if they are dating online etc and concerned about their safety? Or would all women sign up to it as soon as they turned 16?

There are some men who can damage a great many women's lives. They should be ostracised and the opportunities for them to harm other women must be limited.

Not a lawyer but a few things I would out in place if in charge:

• rather than a jury, rape trials would be help infront of a panel of trained paid representatives who would analyse the evidence; hear the defendant and the victims speak; visit the crime scene if needed and work with the lawyers to come up with appropriate questions to be asked of both in place of a cross examination
• defendant and victim receive anonymity.
• defendant and victim sexual history not shared or assessed.
• previous related crimes are known.
• private courtroom.

@Ravenheart1

I've worked out how to do it technically - yes it would be a subscription service / ad driven business model (don't like ads but might have to, at least initially).

Identifying predators is the only way that women have a chance at keeping themselves safe but the men will fight tooth and nail against it - and will probably try and sabotage it/ undermine using any legal process they can get their hands on so I need to think now to stop myself becoming a target like Snowden - any ideas??

woman. I LOVE this idea though it is fraught with difficulty, as you say.

Would a woman be able to put a man's identity on a database after a bad experience? Or only after she had complained to police? (Think the latter may be too high a threshold..). Is it equivalent to the "shitty media men" list that circulated around the States after Weinstein scandal?

I think alot of women know one man that they would warn their friends about.... if this could be scaled up, then at least women would have the information and can decide for themselves if it is safe to continue any encounter/ experience.

This approach has already been introduced for domestic violence (Clare's law).

www.bbc.co.uk/news/uk-politics-26488011

I suppose easier for domestic violence as this can be both a civil and a criminal matter. So even if a man has not been convicted, (given the higher burden of proof- beyond all reasonable doubt), history and evidence of non-molestation orders and prohibition orders would be revealed.

Of course, on a night out you might not find out a man's surname , or remember it, or he might lie, or change his name by deed poll...

Any defamation lawyers out there who could comment on how the information could be shared legally? (tall order, I know...)

As part of this brainstorming exercise, if we were sitting at the cabinet table and creating a new feminist society that put women's safety at the heart of policy and law making, I would think about the idea of a register.
Like the sex offenders register, but it would contain a list of every defendant accused of rape and sexual assault which went to trial. You would need a national team of researchers to attend trials to compile this database, if the CPS could not provide the data.

This would have a limited remit as it would not include those men whose case did not go to trial due to attrition rates. But it would capture those cases where the CPS believed there was a reasonable prospect of success.

A tiny percentage of men where cases actually go all the way to trial may be innocent. But the case is in the public domain, and it would simply be an alert for women. If women wish to give those men the benefit of the doubt, then fine.

At the moment the general public only know the identity of men in high profile cases as these are widely reported.

Why are we not using the fact that defendants do not have anonymity to protect women better?

This would be in the public interest and would help prevent these crimes happening in the first place.

Only users with established credentials could have access to the register or app in highly specific circumstances, with some vetting and it would need to be reasonable and proportionate to do so. It could not be used by corporates to prevent people getting access to services (eg health care, mortgages or insurance etc.)

Massive data protection, libel, privacy issues of course plus risk of misuse. And lots of resistance.

But what price women's safety?

(Just wanting to acknowledge that I am reading and appreciating this thread.)

Around 20-30% of men are Cluster B - mostly undiagnosed. They commit 80% of crimes and harm and kill women and children. And for some insane reason the law protects them more than the women and children. Cluster Bs clog the courts, cause all the injuries, child disputes, etc etc

I've realised I have a way round the legal and data protection issues I think - that's legal - I just have to figure out the last bit - how to share information - that's tricky so may have to be left to individuals - I'll think on it for a while longer. The problem with Clares List is it relies on a previous conviction, and most Cluster Bs never get one - so serially re-offend whether rape, sexual assault, workplace bullying and so on.

I need to raise a bit of money 10k ish and get a proof of concept off the ground - it's desperately needed.