Jun 152009

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.

  19 Responses to “Don’t hire this guy to represent you”

  1. So, the fact that she grabbed my todger and eagerly gobbling away doesn’t constitute consent? She could then subsequently claim rape anyway?

    Jesus, but you’re hard to please.

  2. So, what, I have to ask every time? Just in case?

    • You mean you don’t?

      • I understand that must be very convenient for you. But we allow ourselves to be outraged when proof of negatives is demanded in other situations – ‘Prove that wad of cash isn’t the proceeds of crime!’ – so why should we be okay with it when the crime is rape – ‘Prove you didn’t consent!’ ?

        I know that in criminal cases the burden of proof must fall on the accuser, not the accused, but when there is a question of the presence or lack of consent, surely the burden of proving the presence of consent must fall on the defendant, as it does in every other criminal situation in which the crime is not rape. In all other criminal matters, the defendant must prove consent was obtained if he wishes to use it as a defense; for some reason, this is not the case with rape. All my friend was suggesting is that the same legal principle be applied throughout the law and not excepted in this one instance.

  3. In explicit words? Never.

  4. “I understand that must be very convenient for you.” Gosh, how wonderfully patronising (matronising?) of you!

    I’m not sure how you can equate a wad of cash in a drawer somewhere with a gross invasion of and assault upon a person. I’m also confused how you can compare MY having an unexplained wad of cash with YOUR assertion that someone raped you. In the first case, it’s the defendant who is being challenged, in the second it’s the accuser who is being challenged. The two examples are not the same.

    I’ve lived with the victim of a rape and I’m probably slightly more aware of the consequences than most men. I’m not in any way unsympathetic to the trauma of rape, but I feel like this suggestion will open the doors to a floodgate of rape accusations that have more to do with embarrassment or guilty consciences than an act of violence towards a woman.

  5. Whilst having sympathy with your arguments you have given probably the only benefit of growing old. It was bad enough managing relationships as a fumbling, bumbling, teenager without having to worry about getting consent, god knows what it will be like with it.

    I also have visions of all the young men getting wads of pre printed forms with their consent already provided and just leaving space for the girls name and handing them round in night clubs as an ice breaker. This will then need to be criminalised to protect women from unwanted intrusions.

    Sorry for appearing to trivialise what is a serious post but it has to be said.

  6. ” all sex should be presumed to be non-consensual unless otherwise stated.”
    okay, but why should this be restricted only to men ?

    why not have a legally binding, written contract, each time everyone has sex ?

    oh; so that legally binding, written contract might be profoundly embarrassing for all concerned ? Oh ! what a surprise !

    “You mean you don’t?”
    so tell me; do you explicitly ask for permission every time ? in that case, why are you not a rapist ?

  7. “God forbid people should endure a little embarrassment”

    not sure this is realistic. in this area, disclosure could result in lost jobs, relationships, and other serious consequences. Moreover, one might understand that this behaviour is fairly common.

    “And no, I’m not a rapist.”
    we only have your word for it :-)
    According to your scheme, anyone who has had sex with you could simply claim you raped them. In fact, even having sex probably isn’t required; simply being in a room alone will do for a claim.

    how would you deal with that, other than full written contracts ?

    actually, those contracts would be a bitch to write. How many would you need to carry with you ? would they all cover every, err, eventuality ?

    just imagine if your left your contracts lying about at work :-(

  8. well, actually, that is what some people want. They want the act of sex itself to be criminal, so anyone who complains after the fact has a slam-dunk conviction.

    The only slight problem is that it makes the whole population into criminals- well, currently the half who can be accused of being rapists.

    “And no, I’m not a rapist.”
    Can I register my incredulity ? If you have ever been in a relationship, man or woman, and formally asked for “permission” every time; well, suffice it to say i do not believe you.

    And this is the issue; I don’t believe you would sign a contract, or give a formal permission every time you have sex. You are proposing a law based on a standard of behaviour which is unrealistic.

  9. “if the defendant wishes to use consent as a defence, he/she has to prove that consent existed”
    “The solution: all sex should be presumed to be non-consensual unless otherwise stated. ”

    it looks to me like you are suggesting criminalising the act of sex, unless there is a statement that it is consensual. That looks to me like a system for formal permissions. However, if I have misunderstood, do explain.

    “so tell me; do you explicitly ask for permission every time ? in that case, why are you not a rapist ?”
    “And no, I’m not a rapist.”
    Given your suggestion that all sex is non-consensual, unless otherwise stated, i asked if you have always sought permission from your partner. You replied you were not a rapist, and I took that to mean you have always asked for permission. Do you mean that you have not always asked permission ?

    You are making a suggestion; surely it is reasonable to explore if you have, or would, adhere to this suggestion ?

    If you forgot to ask permission, would you be happy about subsequently facing a rape allegation that you couldn’t defend ?

  10. well, i am a tad slow.

    so i will see if i follow. You talk about a presumption of non-consent e.g. for theft; but I do not think this is right. In practice, you will need to swear a statement that the money was taken from you without your consent.

    The issue is whether you are believed by the jury, and this is surely a much simpler issue. If you accuse a random person of mugging you, and taking money, and there is evidence that money changed hands; then what possible reason would you have to give this person money ?

    Likewise, you are assaulted by X, you have to swear to this. Juries tend to believe you, mostly because being assaulted is unpleasant, and most people would have little reason to ask someone to assault them.

    There is a difference with sex. Apparently, some people have sex because it is enjoyable, and they want to have sex. So when Z says, “I had sex but it wasn’t consensual”, there is actually a reason why Z might have had sex, which is mutually consensual fun.

    That is presumably the reason that stranger rapes, or rapes with violence, show relatively good conviction rapes. Being beaten up is unpleasant, and most people do not want that to happen to them.

    So I think that there is no legal principle here, since non-consent has to be established in evidence. What is at stake is how the jury evaluates that evidence.

    have i followed ?

  11. Just because someone has enthusiastically agreed to blow you doesn’t mean she’s agreed to fuck you.

  12. That’s all fair enough – wasn’t trying to be patronising – and I’m sure you’re fully sympathetic etc. You don’t have to use the fact that you lived with a rape victim to prove it.

    And I’m not a total fool; I see that the situations are not exactly equivalent. It’s just that there are plenty of false accusations of rape already, and the perception of how common they are combined with the principle of presumed consent means that a lot of people who probably are genuinely rapists are never convicted. It may never be possible to stop false accusations, even when the people doing it know how much it harms the cases of genuine victims; while presumed non-consent won’t change any of that, it will at least change the way rape cases are defended now, which is that the victim is blamed, in whole or in part, for not shouting ‘no’ loudly enough or putting up a convincing enough fight.

  13. @ p – First, I didn’t say it should be restricted only to men. Second, are you kidding me with your questions? God forbid people should endure a little embarrassment. And no, I’m not a rapist.

  14. According to your scheme, anyone who has had sex with you could simply claim you raped them. In fact, even having sex probably isn’t required; simply being in a room alone will do for a claim.

    And how is that different from now, exactly?

    My point about presumed non-consent is that it should simply be brought into line with the rest of the legal corpus; in every other circumstance, if the defendant wishes to use consent as a defence, he/she has to prove that consent existed. Nobody has yet come up with a good reason why this should not be the case in questions of rape, too – and yet it is not the case: in rape, consent is assumed to have existed unless the plaintiff can prove otherwise. No contracts or clauses or disclosures are necessary. This would not change sex as we know it. All it would mean is that if a rape case went to court, the defendant would have to show evidence of consent if he wished to use that as a defence.

  15. I am not proposing anything of the sort, neither a law, nor this bizarre concept of sex contracts and formal permissions – my post does not contain any of those things. You have invented them entirely from your own deliberate misreading of what is actually a pretty reasonable discussion about rape. If you’re not going to engage with what I’m saying, and merely set up pathetic straw men to knock down, you can fuck off. I’m not interested in being made to defend something I didn’t say.

    Anyway, cheer up: none of my ‘proposals’ will ever come to pass, because people like you misrepresent them in defence of your inalienable right to prong whenever and wherever possible without let.

  16. Okay, I’ll bite again. What it looks to you like I’m suggesting is neither here nor there, seeing as what you’re seeing does not appear to be what I’m saying, and you are the one suggesting formal permissions, not me. However, let’s go with that. So fucking what? ‘Would you like to sleep with me? Cool, can I just have your John Hancock over here? Kthx.’ You’re right, it might make things pretty uncomfortable or certain people having certain types of sex, but hey. It wouldn’t be a fucking legal requirement. It’d just be a way of indemnifying oneself against accusations of rape. If you didn’t feel the need for that indemnity, you wouldn’t have to do it. But I’ll repeat myself: that’s not what I said.

    Second: no, I haven’t always asked for permission. And I’m fully aware that even under the current system that leaves me open to accusations of rape. I aver that I am not a rapist because nobody I’ve slept with has accused me of rape. They could have done, and they still could do, and boy, wouldn’t I wish I had that permission to wave around in court! But I’ll repeat myself: that’s not what I said.

    So let’s try this one more time: it is a facet of our legal system that, in all other cases except rape, the court presumes non-consent. Now, if the criminal act in question never took place, this is a non-issue. But if an action took place in circumstances wherein absence of consent makes that action a criminal one (e.g. sex is not a criminal act except in the absence of consent), the same legal principle should apply: non-consent should be presumed. The question of consent only affects the outcome of the trial if the defendant wishes to use the consent of the plaintiff as a defence, that his/her action was not criminal – in which case he/she has to prove that consent was present. That is neither (a) suggesting criminalising the act of sex unless there is a statement of consent, nor (b) mandating a system of formal sexual permissions. fin.

  17. Sure.

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