Just in case anyone missed it this morning (and thanks to @Anthropith for alerting me to this on Twitter) here’s the segment from Radio 4’s Today programme where they discussed how the US police investigate sexual assaults, and why 95% of victims in this country never report their assaults to the police.
I have to say I found it refreshing to hear two men discussing rape in the context of the differential power relationship between men and women, although as always I also found the discussion re the difficulties of determining what constitutes consent and non consent bloody irritating.
Too Much To Say For Myself 
Listening now, thanks for link (slept throught Today)
How come the only woman they talk to is Suzanne the rape survivor?
Because you need a male ‘expert’ before anything is legitimate depresso. If you ask a woman she could just be making stuff up for her own evol ends. In England, until very recently the judge used to give a a warning to the jury in rape cases telling them that women lie about being raped all the time. I’ll look out the wording when I have a bit more time.
Here’s a thought. As the expert pointed out, the issue is usually whether or not a woman “consented”. So why not reverse the burden of proof? Make the default assumption non consent and leave it up to the perpetrator to prove the victim consented.
Depresso: I wonder this also.
Polly: I was wondering if the judges ever present any actual evidence other than the cases that usually get torn apart in front of them? I totally agree with the proving that consent did exist. But on the other hand, I think that might have some conflict with the whole “presumed innocence” thing which is fairly essential to a functioning judicial system in a free society.
But the “presumed innocent” thing is totally stoopid really. There should be no assumption of guilt nor innocence. That should be the starting point.
I’m surprised 200 MRAs haven’t popped up by now,foaming at the mouth, unless Cath has them all in mod. But if you had to prove consent, maybe men would think about “consent” and what it actually is a bit more before assuming any woman who says hello to them, or is in the same house/flat is issuing a sexual invitation. Becuase at the moment ‘consent’ can mean ‘she was passed out on the floor, but before she passed out, she ‘flirted’ with me’. And hey presto the dude is found not guilty. I think consciousness should be a starting point, at the bare minimum.
Stormy: Touche. I hadn’t even thought of that to begin with tbqh. The idea has some merit, however, I’m sure many other aspects of the law might need changing if that were the cases which would probably be more of a long-term project.
Polly: Yes, this is an even better point. You also forgot to mention “is in a relationship with…” because for some reason (and this is from experience when trying to press charges) that negates all reason for consent also.
I’m still trying to find the exact wording of the ‘corroboration warning’ that judges had to give to juries in rape cases until 1995, but it went something ilke this. “People (read women and children) lie more about sexual offences than any other offence, so you should not accept uncorroborated evidence”.
It was legal to rape your wife until 1993 of course. We are told how terrible Islamic countries are for because they legalise rape within marriage and you need to have witnesses to succeed in a rape case, but how much better is this country? That’s reality, as opposed to in theory, dear MRA’s who delight in telling us we should be grateful we’re not in Afghanistan. I am, but that’s because the Yanks, with our aid, keep bombing it. The Taliban on the other hand, come in many guises.
I think consciousness should be a starting point, at the bare minimum.
Yeah, but the MRAs and their handmaiden supporters will argue that it would “ruin a good man’s life” or somesuch bullshit. Too bad that the victim gets scarred for life/many years. That apparently does not enter the equation.
I’m still trying to find the exact wording of the ‘corroboration warning’ that judges had to give to juries in rape cases until 1995
Is Google still your friend or not? I thought you were Queen of Google!
OMFG! I didn’t even know they used to do a ‘corroboration warning’ like that for rape cases! And to think it lasted until 1995 is pretty shocking too.
I bet Jennifer D knows.
Hi Polly – yes you’re right I do know the corroboration warning and here it is:
In 1993 (yes 1993!) Judge Smedley in a rape case heard at the Old Bailey on 1st Sept. 1993 informed the jury ‘experience has shown that people who allege sexual offences whether women, men, boys or girls for some reason or no reason at all tell false stories. Some reasons are obvious. More common in the past was unwanted pregnancy. (So that excludes men and boys telling porkies meaning lies). Also wicked jealousy, spite or revenge, as suggested here, may be a motive. Allegations of that kind are relatively easy to make and are difficult for a man to refute. It is difficult for a man to prove she consented.’
Corroboration until it was abolished when the criminal justice and Public Order act 1994 was passed. Prior to that UK judges had to deliver a warning to juries wherein they said ‘it was dangerous to rely on the word of the complainant (female rape survivor) alone.
The corroboration warning often included such words as ‘women and children are known to sometimes lie.’
Of course, upstanding defendants who always appear in court wearing a suit, tie and with their hair recently trimmed and freshly shaved never, ever lie about raping a woman or girl do they?
Veering slightly off subject but actually it is all part of the same male law concept is the fact women who are intoxicated whether voluntarility or not are always presumed to be capable of ‘consenting’ to a man/men sexually penetrating them. This is despite evidence which always shows that prior to male allegedly raping female, the woman was unable to stand; she was veering in and out of consciousness, or she needed assistance to get home safely.
Yet when it comes to ‘consent’ or ‘agreement’ suddenly the woman is capable of making a choice and always, but always it is ‘yes!’
Now, now Stormy it is irrelevant whether or not a woman who has been raped by a man suffers serious health problems because these are all lies designed to cover her immorality in engaging in pre-marital/extra marital sexual activity with a man who was seduced by her sexual behaviour! The focus must always be on the damage such complaints/charges made against any man who is known to the female complainant. Rape only happens when it is a deviant ‘monster’ like Josef Fritzl or Worboys because we know (or do we since it was women these two men committed sexual violence against and we all know women are innate liars – sic) such crimes are not committed by men but by monsters!
One more thing. The comparison with the clear up rate for burglary is bollocks. Because a)most people report a burglary for insurance purposes, although they know the police will make zero effort to catch the perpetrator and b)most people don’t know who burgled them.
Stormy, ‘there should be no assumption of guilt or innocence’ is an interesting take, but I don’t exactly see how it would differ from current situation, presumed innocence does not preclude the possibility of guilt – how do you propose a trial would work in your system? Is it simply another way of saying we should lower the level of proof needed for conviction?
Polly Styrene, agree it’s false & absurd to compare rape conviction rates with burglary. Just so many differences in the crimes that it’s meaningless.
Rather than say “innocent until proven guilty” start out with “there is no presumption of innocence nor guilt” – and let the evidence unfold (which in my NSHO would be having equal weight of female rape victims, rather than taking the dude’s word as ‘more reliable’).
Polly is our resident legal eagle, I am sure she could fine tune my theory.
The standard of proof in a criminal case is ‘beyond a reasonable doubt’ so there is a presumption of innocence (the standard of proof in a civil case is ‘on the balance of probabilities’).
So currently what happens in a rape case more often than not is that there are no witnesses, the woman willingly either went to the perpetrator’s home, or he was in her home. All this is taken as evidence of likely ‘consent’ as is the fact that the woman spoke to him/had drunk more than half a shandy/ was wearing a short skirt/the moon was full etc, etc blah blah de blah blah. All I’m saying is this – remove all the presumptions. If you’re saying she consented, provide some proof of her actually doing this. Don’t just leave it to be inferred from the surrounding circumstances.
So the dude will then say, but no one else was around when she said ‘yes’. Exactly. So now you’re equal, because there’s usually no one around when she says ‘no’ either.
stormy,
If you start from 50-50, what does the jury decide if it is one word against the other and no specific reason to believe one over the other? You’d have to drop the level of proof needed incredibly low, and almost go on a hunch. Otherwise you have to start with a presumption of innocence or guilt and expect a reasonable amount of proof from the other side. The latter seems a fairer system to me.
I respect Polly Styrene’s view that the guy should have to prove consent happened, rather than the woman prove non-consent, but I’m just not sure it would be a good precedent to change the fundamentals of law to presumption of guilt.
No, you’re missing my point Ubik. At the moment a guy can say, oh well she was flirting with me, so that shows she consented. No it doesn’t. What I am saying is prove she said yes. Rather than “I assumed she said yes, even though she was passed out on the floor, because earlier in the evening she was flirting with me”. Obviously if someone is passed out they’re not consenting, but time and again men get away with having sex with unconscious women because they said she had ‘consented’ some hours before.
I agree with that and don’t think behaviour earlier in the evening should be considered as consent. And it should absolutely be the case that if the woman was unconcious, it is rape and the guy is sent to prison.
But applying this to a trial is difficult – and that’s more what I was trying to get at. When he says ‘she consented’ and she says ‘I did not consent’ and there is no other evidence (leaving aside the fact that with better police actions, there may well have been evidence), the guy will never be found guilty ‘beyond reasonable doubt’ – and the only way to change that would be to change the fundamentals (either the level of proof required, or the presumption of innocence).
Maybe I’m still mistaken, but the way I read your arguments is that Stormy’s view is effectively that lower level of proof is needed (if you start with no assumption of innocence/guilt, a slight leaning either way would produce whichever verdict) and that yours is we should start from presumption of guilt (where if there is doubt over whether consent was given, we assume it was rape and convict).
No it’s more looking at how people imply consent. Very often a man will admit that a woman hasn’t ACTUALLY consented to sex when it takes place,in terms of saying yes but will say he assumed it. Like the student who had sex with a woman who was asleep and was acquitted because she had ‘consented’ earlier.
Another good example is the (ongoing) case in Manchester at the moment where a dude is saying he was with a woman who fantasised about rape, so the ‘rough sex’ they had was in effect ‘preconsented’ to – they had an agreement to play act rape. The case hasn’t been decided yet, it’ll be interesting to see what happens, but I’d lay odds on acquittal.
If explicit consent was required – i.e. an actual verbal consent – maybe it would make men think more about what consent IS. Yes they could still lie. But cases like the one above wouldn’t arise.
(can’t copy comments, could earlier, go figure)
Ubik, in one respect it is a lower burden of proof I guess, but at the moment it is an uphill battle when we assume innocence to begin with. Polly’s point is not about a presumption of guilt to begin with, just that each party’s evidence carries more equal weight (currently not, which is the problem).
Frankly, I think a presumption of innocence is rather silly, because the defendant would not be there if there was some evidence, however slight. Most cases (lots of crimes) don’t even make it to court, because of no evidence. So logic for me dictates that there is some evidence to say the defendant is more likely to be guilty than innocent. Hope that makes sense in some way. Arts degree just doesn’t cut it to interpret the law. Polly read law, so I bow to her on such matters.
Heh, I’m in science, which isn’t always the best for understanding law either!
I tend to be of the view that the improvements can come if we focus on how the police treat accusations & gather evidence, rather than changes in the law, but it’s interesting to have the debate.
Both elements need changing before improvement will happen, both the law and the police and their methods.
I am probably, with all of my artsy fartsyness, thinking outside the box on this one, rather than to work within existing parameters.
If you want actual proof of how lowly a woman’s word is, when compared with a man, check this:
timesonline.co.uk/tol/news/uk/crime/article1089120.ece
And he got off:
timesonline.co.uk/tol/news/uk/article755800.ece
Well, they were female, and they were drunk, consent is apparently a slam-dunk in such circumstances, even if you have TWO women saying he is a rapist.
Yeah that was a good one. They are BOTH lying bitchez. They got together and fitted him up. Of course he’s innocent, he’s got a good job!
But this one is even better:
A rape victim has hit out at the law after the man accused of attacking her was cleared because he was sleepwalking.
Jane McKenna, 33, was asleep at home when a friend’s husband, who had been a guest at a barbecue, walked into the bedroom and started having sex with her.
Jason Jeal, a 37-year-old roofer with no medical history of sleepwalking, admitted sex had taken place. But he was cleared of rape after he insisted he had been asleep and had no idea what he was doing.
http://www.dailymail.co.uk/news/article-1085927/How-man-raped-cleared-sleepwalking.html
And this one.
http://www.timesonline.co.uk/tol/news/uk/article771326.ece
How many dudes start having sex while sleepwalking? It’s astounding.
Fucking hell, have we been transported back to the dark ages or something? Next it’ll be that we have ‘shrunk their members’ whilst hexing the crops and tanking the global economy. And the lads sit there, all innocent – barely legal almost, with bunches, a dummy and a shity nappy.
The boys are having a laff here…No?
Yeah, I remember the sleepwalking defences.
My other one plays Jingle Bells BTW.
That sleepwalking defense doesn’t sound too far fetched to me. I mean, I’ve had that used as an “excuse” before….
After a night out with her in March this year, Mr Bilton put her to bed in his flat while he slept on the sofa.
The 22-year-old woman said that she woke to find her trousers had been taken off and Mr Bilton assaulting her. She denied she consented to sex.
It would be one thing to “sleepwalk” shagging someone in the bed next to you, but this dude went from the sofa to the bedroom, and “sleepwalked” took her trousers off, before “sleepwalking”
shaggingraping her.Now, if this dude has such a problem as this, instead of just clearing him of charges – he should be remanded into some sort of clinic for the disorder. But noooooo, he is free to “sleepwalk sex” rape some other woman down the track.
Also note that the previous dude had ‘no medical history of sleepwalking’. So he SUDDENLY develops a problem he’d never had before, and hey presto, they very first time he sleepwalks – at 37 – he rapes a woman.
I still want to know why the long-term sleepwalking rapist just got to walk free without any treatment for his “condition”. What is to stop him “sleepwalking” again?
And why on earth can’t he suddenly decide to sleepwalk off the balcony rather than stick his penis into some unsuspecting woman…