As a comment on this article about rape prosecutions, I find this:
As a lawyer, it disturbs me that a politically correct state is seeking to tell jurors what they are permitted to think about human behaviour. The insoluble problem with prosecuting rape is that the act is not unlawful in itself, but is made unlawful purely by the state of mind of the participants.
Feliks Kwiatkowski, Haywards Heath, England
Now, rape is obviously one of those difficult issues, but logic is generally not, so here we go:
First, juries are always told what to think about human behaviour, at least while they are in the jury box. They are always instructed to decide their verdict on the basis of the admissible evidence. All this article is saying is that the rape victim’s dress, level of physical resistance to the rapist, and the time elapsed between the rape and the formal accusation are no longer admissible evidence on which the jury can base their verdict. This is already the case with most other crimes: how one looks, whether one resists, and how long one takes to report it when one is the victim of theft are not considered evidence either.
Second, of course the act – penetrative sex – is not unlawful in itself. Nor is the transfer of cash from one individual to another. It is the state of mind of the participants that makes the actions a crime – namely, it is the absence of willingness or choice on the part of one party that makes the sex rape, and makes the receipt of cash theft. This is not an ‘insoluble problem’ in the case of theft, nor is it a problem in the case of rape.
The difficulty with rape, which this commenter, being a lawyer, ought to be able to articulate more clearly, is not that it is classified as a crime for bizarre reasons, or that the judges in rape cases can instruct the jury how to arrive at a verdict.
If we think in terms of theft: I cannot actually prove that a mugger has robbed me at gunpoint if nobody saw it happen. It’s my word against his that I didn’t give the money to him willingly and of my own choice. My mugger may have been accused or convicted of theft before, which supports my claim a bit, but then again he may not. My mugger may be a total stranger to me, which supports my claim a bit, but then again he may not.
With rape, again, if there are no witnesses, it’s the victim’s word against the alleged rapist’s, and the victim cannot prove the sex was not willing and done out of choice. The alleged rapist may have a record, but he (or she) may not; the alleged rapist may be a stranger to the victim, but he (or she) may not.
The difficulty with rape, therefore, is not in the act of sex itself, or the legal obligations of judge and jury, or even in the nature of the evidence when considered in comparison to other roughly analogous criminal situations. The difficulty is in perception, both of the victim and the accused, and of rape itself as a crime.
Most people are willing to take the word of a victim of theft. The punishment for theft is lighter as well. But many people, whether they will admit this or not, are innately sceptical of a rape victim’s claim, especially if the person they claim has raped them is a friend, family member, or other acquaintance. ‘Maybe it was a misunderstanding,’ they think. ‘Maybe the unwillingness wasn’t made clear enough at the time.’ The punishment for rape is harsh. There may also be an awareness that there is no recompense for rape; victims of theft can get their money back, but what is it exactly that a victim of rape has lost? One can argue that they have lost a sense of personal sovereignty and safety, but this is true of mugging victims also, and is equally intangible in that case. There is, too, the perception that thieves will continue to be thieves, but that rapes are unique to their situations. And so many people will give the accused the benefit of the doubt – not entirely unreasonably – in a way they wouldn’t do if the crime were theft – because conviction does very little to help the victim and does enormous damage to the convicted.
One person I’ve discussed this with has suggested that the problem is in the nature of consent: society (and the legal system) views all sex as consensual unless otherwise clearly stated at the time. Remaining silent is presumed to be consent as well. The solution: all sex should be presumed to be non-consensual unless otherwise stated. This is, after all, how we treat other issues of bodily sovereignty, for example organ donation. (Although I’m aware there’s a move afoot in the UK to change that.) This is also how we treat theft: if I agree to the exchange of that money, all I have to do is not call the police and make an accusation of theft. If a person agrees to have sex, all they would have to do is not call the police and make an accusation of rape. Then, if a rape occurs and goes to court, the various attorneys can get into the problem of thorny evidence, etc, but at least the victim will be spared the necessity of having to prove a negative.