Are higher rape conviction rates incompatible with current judicial norms?

Great Debates
1

Ref. this BBC article on the low conviction rates for rape cases in the UK.

Women’s Groups are increasingly vocal about the “need” to increase conviction rates for rape - as it stands, 19 out of 20 rape cases in the UK end without a conviction. The argument is that this represents a flawed system in need of fixing.

Some thoughts and assumptions…

  1. The factual confirmation that intercourse has taken place is easier to prove than ever, thanks to DNA technology and CCTV coverage.

  2. Levels of actual rape remain broadly consistent, but reporting and prosecution of rape has increased due to awareness work by activists and politicians.

  3. Rape usually happens in private, with only the accused and accuser as witnesses to the crucial act.

  4. Where consent is provided - and not withdrawn - rape cannot take place.

  5. The nature of consent, or more particularly its withdrawal, and a woman’s ability to give it often relies on unprovable assertions. This may not apply where a woman is intoxicated etc, but is valid otherwise.

Conclusions…?

a) it may simply be that too many cases are being brought before court where no crime was committed - the defendents are thus rightly aquitted. By encouraging police and victims to pursue prosecutions with little chance of success, the conviction rates will decrease.

b) the requirement to prove “beyond reasonable doubt” that a rape took place means that - due to the private nature of rape crimes - reasonable doubt cannot be removed in a majority of cases.

I genuinely can’t see a way around this - if a woman* claims she is raped, and a man* asserts that consent was given (and not withdrawn) how, in the absence of concrete evidence of intoxication, can a jury decide who is telling the truth?

It seems to be that a presumption of innocence will heavily favour the accused, but to shift this would set a dangerous precedent.

Anyone have an idea how to work around this?

Feel free to correct my assertions / conclusions too - I may well be off-beam with some of them.

(*I know male-male rape occurs, but it’s less common)

2

I would think this part has something to do with the lower conviction rate:

“Some commentators believe the increase in alcohol consumption among women in the past 20 years has made it harder for juries to believe victims did not consent. And a rise in accusations made against acquaintances has increased the focus on consent, which is difficult to assess.”

It was about 20 years ago that I was in college. Many of my friends experienced what would now be considered “date rape.” I don’t remember ever hearing the term back then. But later when I heard it, I knew exactly what it referred to.

In our minds back then we would have called it, “being taken advantage of.” We would never have thought a crime was committed. Never would have thought to press charges. We chalked it up as a lesson learned. We did feel it was partly our fault for not heeding our mother’s and father’s warnings about being alone with guys in certain situations, like when drinking.

So we all warned each other about which guys in particular you were never to be alone with. We had buddy systems when going to a party or leaving a party. We also knew what guys could be counted on to help us out if we felt we were being targeted by someone who was purposely trying to get us drunk with the expectation of having sex later.

I don’t mean to make it sound like this was a big topic of discussion, it wasn’t. What I am describing just sort of evolved. But I think it is very different now what young girls are being told.

20 years ago we were told if we were drinking and went somewhere alone with a guy we didn’t know all that well, then we had to take responsibility for what happened to us. In a sense that was seen as giving consent to whatever would happen there. So we knew what others would think if we told what happened. ( And by “others” I mean police or potential jurors who might hear the case.)

My friends who have daughters now who are in high school or recently went to college are not told that. They are told that if when alone with a guy, if they ever aren’t comfortable with what is going on they have the right to say, “No.” At any point, no matter where they are, no matter what they had been doing, or who they were with, they can say “no.”

Well sure they can say no, but that doesn’t mean it will make a difference. To me that is giving the young girls the idea that they are somehow protected by a magic word “no.” So when they think that they can go anywhere and do anything and then just say no, and no doesn’t work, they feel like a crime has been committed. They will be more apt to report it and seek punishment for what happened to them. When they feel bad about what happened to them, they will feel it wasn’t their fault. They had done nothing wrong. They should be able to drink, flirt, and have as much fun as they want, knowing when they say “no” the other person has to stop. And if he doesn’t stop, then he needs to be punished.

And I think when the crime is reported and the case goes to court, the girls are quite surprised to find than others don’t know about the magic word “no” and how that means none of what happened to them is their fault. I think they are suprised to find that their actions will be scrutinized, their manner of dress considered, their previous experiences brought up. They aren’t familar with the older way of thinking, that they hold some responsibilty for what happened. And if they didn’t want what happened to happen they wouldn’t have been in that situation if the first place.

That is what I think is partly responsible for the low rape conviction rates now as compared to 20 years ago. And in the above, I am not saying one way is right, the other way is wrong, just explaining the differences between attitudes between then and now as seen from my personal experience.

3

There are a lot of issues to discuss. Take alcohol, for one. A lot of times women may drink a lot and then consent to something they would not consent to while sober. Or she may consent and then forget she did so the next morning. She may truly feel she was raped, although no rape took place.

The question of what is rape and what is consent is really at the heart of the issue. What one person may think of as rape may not legally be rape.

4

A sidebar to the article says that one of the reforms that has been put in place is that “Defendants cannot cross-examine complainants.”

Does anyone know about how this works? Is it that there is no cross-examination of her at all, or that the D’s barrister but not the D himself can cross, or that there are limits on what can be raised in cross (such as past sexual history)?

5

Female-female and female-male rape also occurs, but are even less common. Female-male rape is extremly rare, is rarely reported, apparenly it usually takes the form of statutory rape (where the victim “consents”). Though I’ve heard under English (& Scottish :confused: ) law a women cannot actually commit rape therefore it’s legally impossible for female-female or female-male rape to occur. On this side of the pond the FBI has declared that only men can commit rape and only women can be victims of rape.

6

If a man drinks a lot and then consents to something they would not consent to while sober she consents and then forgets he did so the next morning has he been raped? Does it matter if he had sex with girl or a guy? I ask because one of my classes last semester had a seaker from a local rape crisis center. I asked the same question and didn’t get a response other than “Her defence attorney would argue that if he was that drunk then he wouldn’t have been able to maintian and erection. That’s the argument.” This was followed by snickering from both male and female classmates. The only male clients they had been raped by other men.

7

That’s a complete crock. Twenty years ago I used to be able to quaff six UK pints and still maintain a mighty hard erection for as long as it was needed.* The line above is about as enlightened as saying that if a woman really didn’t want it she wouldn’t get wet.

*The difficulty lay in getting rid of it, but that’s another story altogether.

8

The 2nd and the 3rd one. Defendants who choose to represent themselves cannot personally cross-examine complainants to sexual offences. See this Court of Appeal decision for examples of the type of behaviour by defendants it was designed to prevent.

There are also fairly strict rules about when a complainant’s previous sexual history can be admitted as evidence or asked about in cross examination - Youth Justice & Criminal Evidence Act 1999 s.41. These rules have been arguably relaxed somewhat by the decision of the House of Lords in R v. A [2001] to give more discretion to the trial judge as to when evidence of a complainant’s previous sexual history may be admitted.

9

While it’s true that it wouldn’t be called rape, it would still be an offence that carried the same penalty. If we look at the statutory definition of rape:

Obviously that would only cover male->female or male->male rape. However, female->female rape or female->male rape would fall under either [s.2], [s.3] or [s.4] depending on the specifics:

10

What worries me more than the low rate of conviction, is that judging from cases I’ve read about, they should never have been brought about in the first place.

I strongly disagree with forced sex, but the idea of determining that an offence had taken place, solely on the word of one party, with zero corroborating evidence, is utterly outrageous.

The worst case I can think of, was when a woman accused a guy of rape, pulling him out of a lineup and he went down for it. He only got released some 16 months later when it turned out that she had a history of making such claims - but under other names. There was absolutely no evidence - just her word.

Fortunately juries seem smart enough to spot dubious cases, which means that one bit of the system is working.

11

Oh, I think you have opinions on the topic. But I’ll help you out. The older way of seeing things is wrong, the newer way is right. Guys ought not to have sex with women against their will, and if the guy does, the responsibility is all his.

You’re right about “No” not being enough to protect a woman in private, though. It doesn’t change the moral responsibility equation, however.

12

That is not exactly the problem

Grits and Hard Toast is saying that the old way prevented the problem

  • but the real problem is that it is being proposed that a woman’s word is worth twice that of a man - and I think most will understand the irony.
13

I think there is a problem with increasing the number of convictions that being that you must deny rights to someone.

2 Examples:

  • Date rape laws restrict the right of the accused to face there accuser

  • Women are not responsible for their actions when they choose to drink, what about men? why does the status of a woman resort to that of a child?

14

IIRC women can be convicted of rape even under the 2003 law because of the common law concept of 'Common Purpose". If for instance a couple decided that the man would have sexual intercourse with another women and the partner actively assisted such an assault, then she would be acting with a common purpose and would be equally guilty of the crime even though she does not possess the penis required by the legislation. I do remember some such cases, though most common purpose convictions IIRC have been for murder where one person used a weapon to kill (usually in a planned robbery) and the others in the group knew that he had such a weapon and had reason to believe that he might use it.

Similar to the the rape case- they did not possess the weapon (penis/gun) but knew of or encouraged its use.

15

You’ve hit the heart of the problem in these cases. Both parties usually have been drinking and making bad decisions. In some states, like Maryland, if a person is too drunk he or she cannot legally consent to sex. In a lot of cases the woman’s drunken state will excuse her actions (she may have said yes at that time, but she was too drunk to legally consent) but a man’s drunken state will not excuse his actions (what judge will allow the argument that he was too drunk at the time to know he was committing a crime?).

Many rape crisis folks don’t do much to help this matter. In the rape crisis literature I’ve read, the mentions of alcohol mainly involve telling women that men are going to feed them alcohol and drugs in order to rape them. There is little or no discussion about women who drink too much and make choices that they would not make while sober. These groups usually have overbroad definitions of rape that lead women who regret sex to think they were raped. Regretting sex does not mean a woman was raped, however.

16

I agree broadly with the points you are making with one exception. If a girl says “No” and is ignored, she doesn’t just “think” a crime has been committed, a crime most certainly has been. If I flashed my wad whilst walking around a rough area, and then got mugged, I haven’t been any less mugged because I put myself in a risky situation.

17

But a similar argument goes for the crime of ‘Assault’. In health care we are constantly told that the mere touching of a person is potentially assault if you do not have permission/consent to do so.

Similarly, grabbing someone by the arm is technically assault, but try getting a jury to convict!

18

What about situations where a girl says “no” but makes no effort to break off the sexual activity or leave? Does a woman have an obligation to make an effort to leave or fight off sexual activity, or does a simple “no” suffice? Or what about cases where a woman says “no” but then actively takes part in continuing the sexual activity?

I throw these questions out there not because I’m trying to be snarky, but because these cases are unclear and not always as simple as “no means no.”

19

actively taking part negates the “no” imo, in the other cases it could be that the woman fears an escalation to violence if she tried to leave etc. Saying no should be enough, by itself, to get the guy to stop.

20

Thanks for clarifying that, shefDave. I particularly appreciate the effort you made in providing the caselaw.