Similarly, there have been claims over the years (by some on this very blog ) that Western society is fuelled by a rape culture which oppresses women (and, to a lesser degree, men) from the day they are born.
Certainly, legendary writers like KathyAcker tapped into this train of thought for her own writing, whereas the likes of Andrea Dworkin, Catherine MacKinnon and countless others weaved their own experiences together in order to create this idea as a way of explaining the injustices (be they genuine or insignificant) that woman faced in the world.
Anthony McIntyre has written that he doesn't think:
... the society we live in is one of rape culture: I don't see it as pervasive or regarded as the accepted thing to do, which I imagine are ever present aspects of a rape culture. And blaming the victim is something the perpetrator does to evade sanction rather than society. That is not to say society handles these things well. A patriarchy and a rape culture are not one and the same. I think there may be rape sub cultures that exists just as they do in many armies. Some countries seem more emblematic of a rape culture than others. India springs to mind from a distance.
Obviously, it's a highly emotive topic with room for misinterpretation, division and outrage (real and feigned). It can often seem impossible to have a proper conversation around this topic. So it's to Luke Gittos' credit that he manages this over the course of this book.
A solicitor for Hughmans Solicitors in East London, as well as editing Spiked, Gittos is in a prime position to discuss the concept of rape, the social/cultural ramifications and the effect it has on people.
Firstly, let's get this out of the way, yes the title is meant to be provocative. Far too many books of this ilk allow themselves to be filed away in dusty corners because the title doesn't jump out at the reader. So fair play to Gittos for such a move.
In the introduction, Gittos lays out his case: that rape culture is an all-encompassing term that is used to explain away some very complex situations and, perversely, the continuation of such claims has led the state to start criminalising activity that might have, traditionally, been passed off as a bad experience. It”s a compelling argument, but the reader then wonders about the various statistics that would suggest otherwise.
Another claim is that there are, on average, 85,000 rapes in the UK every year. A highly disturbing statistic for anyone but it's a statistic that, according to Gittos, is based on misleading research. The questionnaires would frame the question as "which...of these things has someone done to you in the last 12 months...when you made it clear that you did not agree or when you were not capable of consent" and then provide multiple choice answers. If someone answered yes to certain ones, they were listed as rapes.
However, as Gittos points out, there are situations that the blunt questioning does not allow for room to consider:
The first problem with this is that someone who is penetrated without consent is not necessarily a 'victim' of rape or serious sexual assault, even in law. The question fails to take into account an alleged perpetrator's knowledge at the time of the incident...For example, a couple may start having sex before the woman falls asleep. Because the woman no longer had the capacity for consent, but the penetration was ongoing, this could amount to rape.
A slightly convoluted example but then, have there been any of us who haven't had a drunken one night stand or come home from the pub with both you and your partner bollixed? In situations like that, where both people were too inebriated to properly give consent or even perform (let's be honest) is it right to categorically call this rape?
Of course, it depends on the situation. But such disregard for the individual scenarios in favour of statistics that strongly suggest 85,000 rapes a year is the sort of behaviour that encourages people to believe that a rape culture exists in Ireland and the UK.
So, according to Gittos, what this means is that as the cries of those claiming that rape is underreported has risen in the public conscience, the state have begun to expand the terms 'rape' and 'sexual assault' to encompass more crimes, and therefore gain more convictions. One such example cited is the case of a young transgender male called McNally, who was convicted of assault by digital penetration.
For Gittos, this is an example of how the justice system can badly handle a delicate case. Did this really need to be classified as a case of rape/sexual assault, or was it something that should have been worked out between the two individuals at the centre of this case?
Is this the sort of blunt approach that we want from a tough, but effective, justice system? If not, then we need to have a calm but pointed discussion about the law and the repercussions of claiming that we live in a rape culture.
This is a book that will make you pause for thought and reconsider some long held notions. Well worth tracking down.
Luke Gittos, 2015, Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. Societas ISBN-13: 978-1845408374
⏩Christopher Owens was a reviewer for Metal Ireland and finds time to study the history and inherent contradictions of Ireland. He is currently the TPQ Friday columnist.
This a very thought provokling review and makes me want to read the book even if I find it ideologically challenging.
I will say too things.
Rape is ulimately a weapon of power and humiliation hence the incidence of so much rape in war and acts of genocide. Becuse men have been culturally conditioned to dominate women in certain patriarchal societies and context by no means make rape, sexual abniuse and sexual and domestic assault purely a male probnlem. Given the opportunity women can be every bit as sexually sadistic as the cases of Rosemary West, Myra Hindley and Irma Grese prove.
Secondly, having engaged with the works of Catherine McKinnon amd Andrea Dsworkin in the course of PhD thesis on abortion, I found their accpounts of men organising the rules of heterosexual intercourse amonmg themselv es ridiculously reductive.
this interview with Gittos sums up the book's arguments if you want to investigate further before purchasing the book: https://youtu.be/_jisgvTplQE
1 - There is no denying that rape is an act of extreme violence and is therefore completely separate from sex. What the book states, quite categorically, is that society has lost the ability to make a distinction between a consensual action (which one party may regret later on) and an act of violence. When people are asking if it is possible for them to withdraw consent after the incident, we are in deeply dangerous territory.
2 - I have to admire Dworkin purely on her writing ability. There is power in her words. Apocalyptic almost. It just so happens she was a misandrist who had had some appalling incidents happen to her (allegedly) and therefore sought to blame men and reduce their freedoms where she could.
I have this book on Kindle, but I haven't gotten around to reading it (or many, many others!) yet. I must say that I especially admire Christopher's willingness to engage with controversial books as well as ability to assess them fairly. Kudos.ReplyDelete
Thanks very much Alfie. Always great to hear people engaging with the reviews. With AM's commitment to freedom of speech, it would be remiss of my duties if I didn't attempt to look at controversial works. My review of Ian Brady's book sparked a bit of discussion but it was for the best.Delete
A book some reviewers would like to pass on. Not you Christopher. Tackled it head on.ReplyDelete
I wonder what Julia Turner, who sometimes comments on TPQ, might think of the book or the review. Her take is always thought out and interesting.
I wonder if the nuance written into the work and the review might lead us to ask if the interpretive mechanism used to decide on what is or is not rape/consent is shaped too much by the wokerati and PC mob?
If so does it not sufficiently address the unspoken rules of a negotiated sexual encounter (particularly amongst the young coming at the issue maybe for the first time) which is also a process and as such has its own dynamics and a mutual understanding of its developemnt and boundaries on the part of the people involved, which no law book can account for?
If this matter is to be discussed more thoroughly, then it has to take place in at atmosphere not determined by the wokerati, nor the kickback made more aggressive by an abhorrence of the PC Mob rather than a feel for the issue.
Did the Rugby players rape trial a couple of years back in the North clarify or confuse even more?
thanks for the compliments. Greatly appreciated.
The rugby trial is a perfect example of the hysteria that surrounds this topic. Regardless of verdict, many had decided that the players were guilty because
1 - they were male
2 - they were rugby players
3 - they had money
Every aspect of this case was amplified by those who know nothing about legal proceedings. They were horrified that the complainant was cross-examined for eight days. But anyone can tell you that four accused means four cross-examinations. Rory Best turns up to speak as a character witness (which is perfectly legal in NI) #notmycaptain.
Christopher - I wrote a couple of pieces about the Rugby rape trial. I found a great deal wrong with it and queried the prosecution to begin with because there never seemed any chance of a different verdict. Then the uproar over a verdict returned by jury seemed not to have any comprehension of what a jury trial is. On top of that we have a demand that a person who claims to have been raped should automatically be believed. Why bother with a trial then? I very much objected to that line of reasoning, preferring instead that a person should not be automatically disbelieved if they claimed they were raped. In the rugby rape trial there was a strong element of class prejudice - the accused were deemed guilty by some because of their class. Overall, it was badly handledDelete
unfortunately, as the book reiterates, we have moved into an era of trial by social media. In some cases (Terry Richardson, Afrika Bambaataa, Jorge Herrera) no one has made a complaint to the police but all three have lost work and been deemed guilty in the eyes of social media.
One of Gittos' claims is that Operation Yewtree set a legal precedent. The report, called 'Giving Victims a Voice' treated the allegations as proven evidence. A serious shift away from objectivity.
The judge let one of the barristers in the Rugby trial make some odd statements. At one point he said if the jury had "any single doubt they must acquit". I am surprised this was allowed. Of course, if you are not there you'll have some doubt. I wouldn't have had a problem if he said "any reasonable doubt" but that wasn't what was reported. It's an important distinction.ReplyDelete
The deletion of WhatsApp messages and the fact that immediately after the incident the complainant left the scene bleeding and crying didn't help the rugby players. How can you control social media in that circumstance? Anyway, it's up to the court to prevent the jury being influenced by social media and if the latter affects the trial it can be a mis-trial.
In Barcelona during a trial concerning a group of mem who all had sex with an unconscious teenager, the "court ruled out rape because the victim was in an "unconscious state" and the accused had not used violence or intimidation" and in Ireland you can confess to rape and not serve any jail time. I am not talking just about our friends in the Vatican.
Pay disparity, rampant domestic violence, misogyny and worse in public life, and the leniency witnessed in too many court cases when sentencing clearly doesn't suit the crimes all feeds in to a society that doesn't value women as they should. A "rape culture" is the inevitable outcome of treating women as less.
I am not sure there is a rape culture. There certainly is a ambivalent attitude to it though.
Simon - a strange line for the barrister to use. Did the judge not lay out for the jury what was expected of it? They usually do.Delete
I thought the brouhaha at the WhatsApp messages post trial was used to punish the rugby players. It seemed to me that the messages were evidence of nothing in regard to rape and more about character. Anybody who has worked on building sites will not be find anything in those messages that they haven't encountered on site.
I don't see a rape culture here or in the UK in the way that it seems to exist in India. I am far from convinced there is an ambivalence about rape. I think there is a great deal of ambivalence and resentment towards the PC culture that tries to silence discussion around the matter.
Rape is a heinous crime. The sentences should be severe for the rapist but not so severe as the sentence for murder otherwise the rapist might feel he should kill his victim to cover up his crime.
Paddy Jackson's attempt to silence public criticism of him by resorting to lawyers was also a very bad move.
If my memory serves me correctly, there were WhatsApp messages which were deleted but not recovered. There were also WhatsApp messages which as you say were read in court. One of the barristers said drunken consent is still consent. The advice is that if someone is so drunk they cannot make a rational decision it can be rape. So he was wrong here too. No use going over the court case again on the Quill, which is my fault I suppose. I was trying to show why people would be upset and used social media to vent their frustration.Delete
Let the punishment fit the crime, which it only occasionally does in rape trials. A rape can cause trauma for someone for the rest of their lives. It is my opinion that sentences for crimes more often against women or children are too lenient and I have seen enough of it over 30 years that a discussion here won't convince me otherwise. The abuse of power should be an aggravating issue.
Your point on a life sentence is valid but no jail time at all or paltry sentences that don't represent the severity of the crime? Your point also rests on the perpetrator thinking he's not going to get away with it and that someone who rapes would be quick to murder.
I am more in favour of a prison system that rehabilitates prisoners like some in the Nordic countries. Locking people up for any length of time and then forgetting about them is a system I can't buy into. It doesn't bring down recidivism rates or crime in general.
We need a system were as few people are in prison as possible and those inside are rehabilitated. The UK is copying the USA system which is a mistake. The Superprison in Wrexham is an example of this. Next we'll have privately run prisons.
The whole judicial system needs overhauled particularly with anonymity in such cases. Often survivors say reliving the events again through adversarial court cases can be as bad or worse than he event itself. This is due to trauma. But until the system changes, the sentences for domestic violence, sexual crime and rape should suit the case. Whether the perpetrator is male or female the punishment should fit the crime.
Simon - if I remember correctly, the court ruled that in the rugby rape trial no rape took place.ReplyDelete
Deleted but not recovered means no evidential value to be drawn from it. The barrister can spin it whatever way he wishes. After that the court should rule on the lawful status of what is offered by barristers.
Punishment fitting the crime is usually a subjective matter. I don't know what the figures are for sentencing. The natural instinct is to castrate rapists but we curb that and find other ways to deal with it.
I am not sure that the drunk consent has been thought through. Drunk driving is no defence against the charge of drunk driving. The law therefore assigns choice to people who are drunk. Whereas unconscious drunk can never mean consent, the rest becomes a sliding scale.
Rape is so heinous a crime I would think the rapist might likely treat their victim with such dehumanising contempt that murdering the victim might not be a great step forward for the rapist.
Ultimately, for a rape charge to be upheld the case has to be proven in court. The defendant has to have the same rights as any person on trial. That poses a particular problem in rape trials which I am not sure society is solving.
A vignette: did you know that on the republican wings there were a number of people convicted of rape? There was open dissent about it and it caused friction with the Armagh women.
AM "Simon - if I remember correctly, the court ruled that in the rugby rape trial no rape took place." I didn't say otherwise. However, a finding of not guilty in any case is just that- the person isn't found guilty. They are not found guilty if there is a reasonable doubt that they committed the alleged offence. That is not the same thing as saying a rape didn't take place. I am not double guessing the court in this case particularly just pointing out the nuance which is often missed.Delete
We have to go with the jury decision. It is difficult to make your own mind up unless you are an actual member of the jury and have sat through all the evidence.
I am surprised that Republicans convicted of rape were on the wings. Nice way to show you're political prisoners and not criminals. Like drug dealers, rapists should have been denied access to the wings and sent to general population.
Simon - after the verdict I wrote the following:Delete
Yet it is hard to see how the jury could have reached any other verdict given the evidence placed before it. We are left with a legal fait accompli underwritten by the court determination that no rape took place in the bedroom of Paddy Jackson. The corollary of this is that there are no rapists and no rape victim.
I no longer remember the detail of the trial which led me to that conclusion. At this point I imagine that having studied the evidence of what happened in the room the jury concluded that it did not amount to rape. I don't think it amounted to a lack of evidence.
We don't have to go with the verdict of the jury. We can dissent from it. I don't dissent from it because I could not see how it could have reached a different verdict. I think that trial was a PSNI/PPS farce that has done immeasurable damage to the chances of getting rape victims to go into court.
Well, there you go, people with rape convictions were on the wings. Not republicans convicted of rape. As were a few drug dealers and people convicted of killing their wives.
"Well, there you go, people with rape convictions were on the wings. Not republicans convicted of rape. As were a few drug dealers and people convicted of killing their wives."Delete
Terrible situation. They should have been left to their own devices rather than been allowed on Republican wings. No wonder the women in Armagh were up in arms.
The attrition rate is the number of cases that fall out of the system between two set points in the process, such as between a report being made to the police and the policeReplyDelete
referring a case to the CPS, or between charge and conviction.
According to the Crown Ptosecution Service the conviction rate in England and Wales, in year ending March 2017 was 58%, in year ending 2018 was 58% and 2019 was 63%. What year or what jurisdiction did the 78% refer to?
The Chief Inspector of the HM Crown Prosecution Service Inspectorate stated in a recent report that "If 58,657 allegations of rape were made in the year ending March 2019 but only 1,925 successful prosecutions for the offence followed, something must be wrong." The HM Crown Prosecution Service Inspectorate inspects prosecution services, providing evidence to make the prosecution process better and more accountable.
Whatever you call the rate, the story isn't as rosy as the author of this book seems to suggest.
On the issue of continuing to have sex with someone who falls asleep can you reasonably say that person consented to you doing so? The apparent marrying of sex after a few beers and sex with someone who's asleep by Christopher in his review is indicative of the ambivalence in society to sexual offence. If a suspect reasonably believes consent was given then the mens rea for the offence is absent. It is more reasonable to accept someone reasonably believed consent was given if the circumstances permit. If someone falls asleep you shouldn't continue with sex. If someone is so drunk they can't consent stop.
Christopher wrote "In situations like that, where both people were too inebriated to properly give consent or even perform (let's be honest) is it right to categorically call this rape"
No-one is saying it is right to categorically call it rape. It depends on whether the suspect reasonably believed consent was given. If he didn't, yes it could very well be rape. I fail to see your point about people being too drunk to even have sex. How could rape happen if sex doesn't happen? I don't see anybody claiming it does, unless we go back to digital penetration.
Simon - a rape allegation does not a rape make. Even where there is something clearly wrong the challenge is still to fix it. And weakening the rights of the accused is not a fix. It is another abuse stacked on the original abuse of rape.Delete
A sleeping person does not consent. If a person falls asleep during it the activity should cease. But I can see the problems it is going to cause in court when the mitigation is offered: proving that the person had fallen asleep is another problem. Proving that the suspect reasonable believed - I think the onus is on the suspect to show the grounds for that belief.
But the police should never take the stance that the allegation is untrue. It should be investigated thoroughly. Should the police have discretion not to pass the complaint to the Prosecution? I would be far from convinced that would be good. Should the Prosecutor refer every case to court? I can't see that working because the job of the prosecutor is to ensure that there is a reasonable chance of securing a conviction.
I don't think I made a point about people being too drunk to have sex.
Should digital penetration be regarded as rape? I believe so - it is the unsolicited intrusion into a person's body by someone else who had no consent to do so. Digital or an instrument such as a sex toy - it is still rape in my view and should meet with as grave a sentence.
I know a rape accusation doesn't mean there necessarily was a rape. The figures show something is wrong with the attrition rate. That's not only my opinion but that of the Crown Prosecution Inspectorate.Delete
"Should the police have discretion not to pass the complaint to the Prosecution? I would be far from convinced that would be good." The police regularly do not pass on complaints to the CPS. In fact many cases do not make trial due to heavy workloads or administrative error. The Inspectorate also found the CPS was averse to risk and were under heavy workload pressure which adversely impacted the cases.
"I don't think I made a point about people being too drunk to have sex." I was referring to Christopher, who wrote "In situations like that, where both people were too inebriated to properly give consent or even perform (let's be honest) is it right to categorically call this rape?"
I never said we should weaken the rights of the accused. The system needs serious reform. Most leading lawyers agree with that. You can have a more just system with ensuring a suspect's rights are guaranteed and still improve the rate of cases that go to trial and even the conviction rate if that is appropriate. The judicial process needs an overhaul and that can be done without denying anybody their rights. The whole purpose of reform is to ensure the justice system is improved and people's rights are safeguarded. It's not an either or situation. Improving the system and safeguarding rights are part and partial of the whole reform.
The difference between 59000 accusations and 2000 successful prosecutions is startling. Bear in mind if there is a rate of conviction at trial of 59%, 63% or 78% the attrition rate still causes concern. Anybody can do the maths. Perhaps 57000 of the 59000 accusations of rape were false. I doubt it and those in charge of holding the CPS to account are aware of serious failures in the system. I don't understand why anyone wouldn't want serious failings to be addressed.
"What year or what jurisdiction did the 78% refer to?"
Crown Prosecution Service Data Summary Quarter 3 (2019-2020). 8,865 convictions for sexual offences against 2,121 non-convictions. So roughly 80/20 in favour of convictions.
"The Chief Inspector of the HM Crown Prosecution Service Inspectorate stated in a recent report that "If 58,657 allegations of rape were made in the year ending March 2019 but only 1,925 successful prosecutions for the offence followed, something must be wrong." The HM Crown Prosecution Service Inspectorate inspects prosecution services, providing evidence to make the prosecution process better and more accountable."
As Gittos says, there are all sorts of reasons why cases fall out of the system:
1 - the person making the complaint is mistaken. This relates to people claiming to have seen or heard a rape as opposed to rape complainants.
2 - there simply isn't evidence to charge.
3 - some police officers haven't pulled their weight.
4 - the complainant has withdrawn their charge (for whatever reason).
5 - the charge has been discovered to be false.
6 - the person may have been convicted of a lesser charge (e.g. sexual assault) instead of rape.
"Whatever you call the rate, the story isn't as rosy as the author of this book seems to suggest."
He suggests no such thing, except that this is a deeply complicated and deeply troubling area to prosecute due to the nature of it and that
On the issue of continuing to have sex with someone who falls asleep can you reasonably say that person consented to you doing so? The apparent marrying of sex after a few beers and sex with someone who's asleep by Christopher in his review is indicative of the ambivalence in society to sexual offence.
Because this is a common occurrence for people. Indeed, the crime survey (with the 85,000 figure) had to stop asking women about how they viewed the incident because there would be answers along the lines of 'I didn't consider that to be rape as it was my long term partner and we were drunk.'
"I fail to see your point about people being too drunk to even have sex."
That was an example of how both parties could be so inebriated that no one may know for certain what happened. In England and Wales, it's entirely possible for someone to be convicted of rape if the complainant has no recollection whatsoever.
I hope that list of 6 reasons for attrition by Gitto isn't exhaustive as even here on the Quill we've come up with additions.Delete
You say "it's entirely possible for someone to be convicted of rape if the complainant has no recollection whatsoever." No recollection doesn't mean that sex didn't take place. It doesn't on it's own mean there was rape. There is normally other evidence like medical examinations, confessions, blood tests for example in those cases.
Your argument about sex not happening at all is odd. If there's no sex there's no rape. If there's no evidence sex took place how can there not be a reasonable doubt? If someone is so drunk they have black outs best not to carry on regardless. Advice is easily available online which states if you doubt someone is freely giving consent due to being drunk you shouldn't have sex with them. If you're prepared to throw caution to the wind after you suspect consent isn't freely given due to drink you don't have my sympathy.
I looked over point 4 of Gitto's reasons why cases do not make it - the complainant has withdrawn their charge (for whatever reason). It is actually the most common reason why cases don't move from the police to CPS.Delete
The London rape review: a review of cases from 2016, found that 58% of victims withdrew their allegation prior to the police submitting the case to the CPS. The report found that this was not because victims did not want to continue with the investigation, but because they did not feel that they could. Research by the London team showed that the most common reasons given for withdrawal were stress and trauma due to lack of
police contact, lack of information or updates, or the sheer length of time it took for investigations to progress.
If these failings can be addressed, more cases would go to CPS and there would undoubtedly be a higher conviction rate without interfering with a suspect's rights.
Simon where you see an undoubted rise in convictions I think it equally plausible that there could be a serious rise in failed cases.Delete
In my view what progress will be made will be incremental. But that is better than no progress.
Maybe as I have grown older I have given up on change occurring radically. I no longer believe in revolution!!!
I meant an improved attrition rate. If cases which are pulled by complainants for the reasons above, which are not connected to the weight of their case, but to stress, trauma, lack of support or time wasting by the authorities, actually go to the CPS and then to court the conviction rate may remain the same but more will go to court. The number of convictions will increase, without interfering in the suspects' rights.Delete
I understand a stressed complainant may fold under questioning but this goes to the aggressive questioning of complainants. The stress can be eased through proper psychological support and they will cope with questions more successfully.
Remember these complainants are being let down by the system not by the weight of their case. Their explanations of time wasting, lack of psychological support, lack of police contact or updates can all be prevented if the resources and processes are in place.
The reasons given by the women are backed by the CPS, the Mayor's office who carried out this particular study and other oversight organisations. These problems do occur and it's a disgrace cases do not proceed because complainants do not get the support they need.
Giving someone access to a psychologist, keeping them up to date and improving resources for the justice system to move in a more timely fashion isn't exactly revolution.
If we postulate that the cases that fall behind at an early stage are those that the police consider not unworthy but the ones they have less chance of securing a result on, then bringing them forward is not guaranteed any greater likelihood of success. I think the difference in convictions would be marginal. I am guessing that the cases that are put on the long finger are those where it is the word of one person against another and where forensics play no part. How they can succeed in court to any great degree is beyond me. I imagine a conviction is hard to secure where the only evidence is a person's word against another.Delete
A psychologist could make a difference in terms of confidence but confidence is not evidence, just a better presentation of the victims own evidence.
I simply fail to see how any significant change in the conviction rate is going to come about. The resourcing required is most unlikely to and then there is the question of why not all victims of crime having psychologists.
I share your enthusiasm to crack it but not your confidence.
Anthony, I think you missed the point of why 58% of cases being investigated by the police were withdrawn by victims. It was not because of a lack of evidence. The report found that it was not because victims did not want to continue with the investigation, but because they did not feel that they could. Research by the London team under the mayor's office showed that the most common reasons given for withdrawal were stress and trauma due to lack of police contact, lack of information or updates, or the sheer length of time it took for investigations to progress.Delete
A rape complaint does not make a rape but similarly lack of evidence doesn't show a rape didn't take place.
A case being withdrawn despite the complainant wanting to pursue it because of stress or lack of update, time being taken etc. is an indictment of the system.
These aren't cases withdrawn due to lack of evidence but due to system failure. They aren't consciously put on the long finger because of some copper's judgement. They are delayed due to lack of resources and the length of time it takes to go to court. The authorities say as much. The delays are endemic.
Simon - if the serious failures in the system are to be seriously addressed somebody would need to specify the methods by which the change you wish to see can be brought about. We would also need to see what the obstacles are to such specifications being enacted and move to curb them. I am not sure of what more can be done but I am not a legal expert and have a layperson's view. My concern is about proposals (not about you) that lead to a weakening of the rights of the citizen who ends up the Accused.ReplyDelete
There is a serious problem in getting a rape conviction which I discussed on TPQ after the Rugby Rape Trial. I don't believe for a second that the vast bulk of allegations are false. But many of them might come down to one person's word against another and in the absence of forensics or witnesses, I am not sure what can be done.
Police discretion has always been a problem although I thought they as a matter of course passed on rape allegations to the Prosecution Service rather than make the decision themselves.
There are a number of reforms than can be put in place. I understand a review is still taking place but the CPS need more resources so less cases are lost on the journey to court due to unbearable workloads. The time taken for a case to go to court should be addressed also. The CPS should also be less risk averse. Another thing that would help the process would be anonymity for the accused unless a guilty verdict is returned.Delete
An other unjust outcome can mean a rapist not being held accountable but these outcomes can be successfully reduced through reform. Of course better 100 guilty men go free than 1 innocent being convicted.
The problem with the current system with it's high attrition rate is some of those found not guilty are still suspects in the eyes of the public or at least their reputations tarnished. Fixing the deficiencies in the system and granting anonymity would help address this.
If there's not sufficient grounds to pass a case to the CPS the police won't let it go further. It happens I understand in about 6 to 8% of cases. One problem in which reform could help is the reduction in incomplete files sent to CPS by the police. Processes can be put in place to help prevent that.
Simon - a case either merits a hearing or is doesn't. Unbearable workloads should not be allowed to influence an outcome. I don't know how they would speed up the case - the wheels of justice do not move fast. The case involving Alex McCrory in the Belfast Courts have been going on six years. Nor do I know how attrition works in regards to other complaints. How does it compare with rape? Or is rape the one we are exposed to most because of its vileness?Delete
The CPS will always be risk averse. Make it less risk reverse across the board in all cases (not just rape) and then the wheels of justice will move even slower. Cost unfortunately will always be a factor.
I agree with anonymity but should it be restricted only to rape cases?
All the measures you suggest would not in my view make a serious dent in the problem.
"All the measures you suggest would not in my view make a serious dent in the problem." The Inspectorate believe they, amongst other measures, will have an impact and as we acknowledge they're the experts.ReplyDelete
The waiting times for trial are atrocious as the justice system is seriously under-funded and under-resourced.
That may well be so but for the belief to become effective policy we would have to wait and see. I seriously doubt it. The only way that I can see a substantial increase in convictions is a diminution in the rights of the defendant. Anything else will be piecemeal and incremental. But maybe that is how society works best, evolution rather than revolution.Delete
The goal has to be firstly no rapes; secondly 100 % conviction rate where rape occurs; thirdly a progressive movement towards that conviction rate without weakening the rights of the accused.
'You say "it's entirely possible for someone to be convicted of rape if the complainant has no recollection whatsoever." No recollection doesn't mean that sex didn't take place. It doesn't on it's own mean there was rape. There is normally other evidence like medical examinations, confessions, blood tests for example in those cases.'
The point I was making was the system, in that regard, is actually in favour of complainants. So much so that they can claim to have no recollection of what happened.
"Your argument about sex not happening at all is odd. If there's no sex there's no rape. If there's no evidence sex took place how can there not be a reasonable doubt? If someone is so drunk they have black outs best not to carry on regardless. Advice is easily available online which states if you doubt someone is freely giving consent due to being drunk you shouldn't have sex with them. If you're prepared to throw caution to the wind after you suspect consent isn't freely given due to drink you don't have my sympathy."
It's not really odd. It reflects the fact that the process leading up to such encounters is a delicate, intimate play between two which can be easily misinterpreted. I've seen people head out of pubs hammered, with their hands all over their companion for the evening. In situations like that, it is all too possible for someone to change their mind halfway through an encounter. Or even drunken fumbling which doesn't lead to penetration where someone hasn't said no, but hasn't said yes as well. Of course it's possible for these to happen, and situations like these are far more common than most let on. The questions we should be asking are: should these cases be considered rape/sexual assault? Should they be considered attempts at rape/sexual assault? Or should they just be consigned to the "it seemed like a good idea at the time" part of the memory?
If you haven't seen it already, watch this recent interview with Gittos:
Christopher, I find it a little odd that you say if someone is raped when unconscious or blacking out their right to bring it to trial means the system is "in their favour". If someone is raped and there is evidence of rape then the system isn't weighed in favour of the victim because they don't chalk it up to a bad idea or experience.Delete
If consent is withdrawn at any time no matter what went on beforehand and the person doesn't stop having sex with the other that is rape.
If you don't get that, no wonder you are light on the subject.
You're right. We'll have to wait and see if any robust changes are made and then if they're effective. Serious reforms can be made to increase the conviction rate and improve the accused's rights at the same time. The accused has the right to a fair trial. Other things in their favour which are keeping the conviction rates down are not necessarily rights. Inadequacies in the system do not equal rights.ReplyDelete
The inspectorate stated a "damning" number of cases are lost amid "under-resourced" investigations. Providing resources to ensure more cases go to trial doesn't affect the defendants rights although it may cause him serious concern. This is just one example.
Yes, no rapes would be the solution. Innocent people are often on trial so a 100% conviction rate wouldn't be a panacea. If we could convict all rapists and no innocents it would be great but there's no justice without injustice. We have to mitigate the injustice.
At least these are things we can agree on. Anyway, it seems as if I have spent my entire afternoon debating this so a little agreement is a nice opportunity for a rest.
Simon - I fail to see in anything you say a the possibility that the accused's rights might improve. While you don't argue for a weakening of those rights at best we can only hope they stay as they are.Delete
The system is riddled with inadequacies - one of which is underfunded. Much like every other public service. I fail to see how the inspectorate can say cases are lost due to under resourced investigations. How do we know there is a case until it is actually investigated, which it isn't if it is under resourced. I feel cases are lost further down the line. I also think there might be grounds to suspect that because the investigations are under resourced the ones that are investigated are those where it is considered by the investigators likely to produce the most positive outcome. So if the ones a;readh investigated and passed up the line don't it make to conviction stage there is even more likelihood that the ones left behind will not make it either. I think the real problem is evidence. There can be more investigations, more resources, more everything but when it comes down to a clash of claims and counter claim, what is to be done?
I should have said a 100% conviction rate for rapists not for people who are accused of rape.
I think a legal approach seeks to find a cure whereas a better strategy might be prevention. The more society comes to see rape as an abomination, the more consent is educated into every citizen, there might be slow progress. Against that - there is nothing more scorned than paedophilia and still it flourishes.
The lost cases are included in figures provided by the CPS to the inspectorate.ReplyDelete
"The more society comes to see rape as an abomination, the more consent is educated into every citizen, there might be slow progress. Against that - there is nothing more scorned than paedophilia and still it flourishes." There are arguments that suggest education on consent should start at an early age. With reports on peer group sexual assault in schools, properly delivered this could help stem the rate of attacks. Prevention should be a focus. A more robust judicial system is part of that.
'...I find it a little odd that you say if someone is raped when unconscious or blacking out their right to bring it to trial means the system is "in their favour".'
You're twisting my words (I mentioned nothing about people being unconscious or blacking out or rights to bring it to trial, which is down to the CPS). I wrote that "... it's entirely possible for someone to be convicted of rape if the complainant has no recollection whatsoever...The point I was making was the system, in that regard, is actually in favour of complainants." If you genuinely do not think that the possibility of a rapist being brought to court and convicted in spite of the complainant having no recollection is a positive for complainants and demonstrates that the justice system does take rape seriously, then we're clearly on opposite sides of the debate.
"If someone is raped and there is evidence of rape then the system isn't weighed in favour of the victim because they don't chalk it up to a bad idea or experience."
Once again, I point to the high conviction rate for 2019/2020.
"If consent is withdrawn at any time no matter what went on beforehand and the person doesn't stop having sex with the other that is rape."
We all know that. It goes without saying. However, you're not addressing the more ambiguous cases that have been outlined.
Christopher, If they didn't suffer a black out or were unconscious why else would they not remember being raped? Okay, so let's assume they didn't have a black out or were unconscious but still can't remember being raped. Just because they can still bring a case to court doesn't mean justice favours them. They have a right to bring non-consensual sex to court and if it's proven beyond a reasonable doubt a conviction will occur. If the evidence isn't there a not guilty verdict should according to the law should occur. It's not in their favour. It's welcome but not down to an imbalance between defendant and complainant. Something being in someone's favour implies an imbalance, as if someone is getting preferential treatment or an advantage.Delete
Do you mean the ambiguous cases of suspects not being able to "perform" or the cases were people fall asleep half way? If someone falls asleep consent is withdrawn. Any ambiguous cases should be down to the CPS to decide and then for the courts to decide whether the accused reasonably believed he had consent. You can't have a blanket ban on the ambiguous cases. The judicial process is there to investigate on a case by case basis.
If I didn't address your ambiguous case point please list them again. However, it is likely anything ambiguous would have to stand on it's own merit following due process. I wouldn't chalk it up to bad experience prematurely.
Small point about the Rugby trial, The accuser didn't leave the house crying and bleeding, she only became upset after being dropped off home by one of the defendents and while she was by herself.ReplyDelete
During the 'incident' she failed to give a believable account of why she left the room three times and returned.
One of the other females in the house walked in on "a threesome" with one of the accused asking if she wanted to 'join in'..which was refused.
Very easily spun as regret. The inference was that the alledged victim suddenly thought that the woman who barged in may have had a phone/camera and snapped a compromising shot, potentially ruining her reputation in Queens and beyond.
The jurors who went to the house didn't believe her description/account either.
Steve - pretty much as I recall it to the extent that I remember much about it but the general thrust of your comment seems to be in the right direction.Delete
I think both Christopher and Simon brought a lot to the above topic which I found very informative.
What we can be near enough certain of is that things will not improve dramatically for people who believe they have been the victim of rape and who wish to obtain justice. If Simon is right and there is a road map out of, then it will be so littered with potholes because of ideological opposition to funding and resourcing, that the road will not be fit for purpose in terms of accommodating those who seek to travel along it.
Steve. The taxi driver gave evidence and said "The young woman definitely seemed very upset. She was crying-stroke-sobbing throughout the journey,”Delete
She also had a vaginal tear whuch the prosecution said may have been there before the night in question.
The remembered Harrison saying: “She is with me now. She is not good. I’ll call you in the morning.”
I didn't want to go into detail about the trial precisely for this reason - you get inaccuracies and the debate never ends.