Quite a long time ago we wrote about the vexed subject of rape. Now the government have announced their intention of changing procedures to try and procure more rape convictions. It was therefore very pleasing to read the following balanced and sensible discussion of the issue by Camilla Cavendish in The Times …
The Government is to produce "myth-busting" packs for juries to get more convictions for rape. These are supposed to demolish the idea that date rape does not count as rape, or that women who drink or dress provocatively are "asking for it". The details have not been finalised because of the small matter that pre-trial information given by the prosecution might prejudice the trial. But politicians are determined to raise the conviction rate for this crime. "Where changes to the law are needed, we will make them," the Solicitor-General, Vera Baird, said yesterday. "Justice must not be defeated by myths and stereotypes."
Quite right. But I wonder if she and I have different notions of justice. For the more I look at this issue, the more myths I seem to find. The biggest is being propagated by politicians themselves. They repeat, ad infinitum, that the conviction rate for rape is scandalously low, at 5.7 per cent. They conclude from this that juries cannot be trusted. But 5.7 per cent is only the proportion of convictions secured out of the total allegations made, not the proportion of convictions secured out of the cases tried. The attrition rate in rape cases is high: only about 12 per cent of cases reach court. So in the courtroom, the true conviction rate is about 44 per cent, slightly higher than that for murder.
Rape is a shocking crime. But you would expect it to be at least as hard to prosecute as murder. More than four out of five allegations are now made against a partner, friend or acquaintance. About half of those involve drink and/or drugs. Jurors think long and hard about decisions if there is no witness, only circumstantial evidence and where a guilty verdict means a minimum of seven years in jail. Gang rape by strangers carries the same minimum sentence as rape by a drunken partner. There is no equivalent to manslaughter, because victim groups feel that a lesser charge would downgrade the seriousness of the crime. Yet some lawyers feel that some juries are not convicting because they feel that the right crime is not being tried.
No one argues that there must be something wrong with the law because only 40 per cent of those tried are convicted of murder. Yet rape is a deeply emotive issue. The Government has already bent over backwards to bend the law. It has changed the definition of consent. It has created specialist rape prosecutors. It now plans to make "hearsay evidence" - complaints of rape to a third party - admissable in trials. Yet the number of allegations that result in a conviction is still falling, because although more people are being found guilty of rape, allegations have jumped by about 40 per cent in the past five years.
This is partly because more women are prepared to come forward. That is a good thing. There are now some excellent sexual assault referral centres and rape crisis centres, which welcome women in and collect evidence - although provision of these is still too patchy. There is also a growing number of rape allegations involving binge drinking, which tests definitions of guilt to the limit.
The focus on trials is obscuring the more important question of why so few cases come to court at all. Earlier this year a report by the Inspectorate of Constabulary and the Crown Prosecution Service found enormous variations in the way that different police forces deal with rape. That remains a problem. It is clear that some forces are sceptical about some claims, particularly those that involve alcohol, and that many women are easily discouraged from pursuing cases that are traumatic to endure.
Home Office research undertaken two years ago at six different referral centres found that a sixth of the complaints that were dropped by police were classed as false allegations. A quarter were dropped because of insufficient or no evidence. A third were dropped because the complainant withdrew - some because a report had been made by someone else, against the person's wishes. This is tricky territory. It is right to encourage women to come forward. But a Home Office analysis of the British Crime Survey recently stated that "only 60 per cent of female rape victims were prepared to self-classify their experience as rape". If those women did not see themselves as victims, I wonder why the Home Office is so keen to make them so?
What hits you when reading reports of these cases is the painful individuality of each one. It is impossible to generalise about the infinite circumstances of human behaviour. Some people fear reprisals. Some want to deal with the trauma in their own way. Some are not sure what really happened. These are the delicate lines on which so many judgments must turn.
In March the Court of Appeal quashed the conviction of a 25-year-old computer software engineer, Benjamin Bree, for raping a 19-year-old student after a night of drinking with friends. The judges ruled that the student was still capable of consenting to sex, even after consuming substantial amounts of alcohol. They also ruled that a drunken person can lose the capacity to consent, and that would amount to rape. That seems to me to be an intelligent calibration. Ministers are still considering whether to insist that no agreement can be taken as consent if it is given when intoxicated. But that would make a drunken man accountable for his deeds, but not a drunken woman.
It is an outrage that some men are getting away with rape. But I also worry that the language in which the issue is now being discussed implies that the only right result is a conviction. That would be a travesty of justice. It is no good trying to bust myths about rape if you are also going to propagate the myth that everyone is guilty as charged.
As usual, Times readers had some pretty cogent comments of their own to make …
"Jurors are selected at random and come from all walks of life. People I know who have done jury service have all reported that it is taken extremely seriously. Evidence is considered very carefully and clarification sought where necessary. The government, in its usual condescending fashion, doesn't trust this system, and thinks some kind of guidance is needed.
It can be taken for granted that this guidance will be of the usual thoroughly patronising and insulting kind, being an attempt to instruct people who experience everyday life, well, daily, by those who never experience it at all.
A fundamental reason for having a jury in the first place is that it will be representative of the people as a whole. Puerile, spoilt little middle-class Islington socialist twits will therefore be present in proportion to the frequency with which they occur in real life. And there's the rub, as far as nu-lab are concerned." - Geoffrey, Modena
"It is worrying if men are getting away with rape. But the shrillness of the government rhetoric worries me, perhaps even more. It's the implicit assertion that juries have 'got it wrong' and need to be 'reminded' - i.e. influenced while sitting by a set of government-peddled statistics which will assist in cleansing them of their prejudices. This government has toyed previously with them removal of juries in cases where they don't provide the necessary results. There's an illiberal streak you can trace through so many of this government's activities." - Gus Swan, London
"I … fail to understand the logic which would overturn the general presumption against hearsay evidence but only in the case of rape. Why not other offences? It is 'bad' evidence and is excluded for that reason. But that is the lawyer in me talking. Rape is now a 'political' crime. A man must be punished and, frankly, any man will do. My advice to men (including my son) - in the current climate, be very, very careful. Steer clear of drunken women or women travelling alone." - Hugh, London
"So let me get this right ... the inability to muster enough evidence for a normal trial, is to be offset by allowing a weak case to be tried in conjunction with a spin-pack to convince the jury that this is a strong case. Yet we have evidence that a properly presented case will result in an adequate rate of conviction?
Just because the government can't live up to its election promises on crime doesn't mean they can blame jurors without us noticing. A realistic target (for any crime, let alone rape) is to get more cases fit for trial instead of trying to distort the courts with more spin doctoring." - KR, Stockport
"This is a very important article. The political drive towards conviction in rape cases is terrifying … the solution is to keep the burden of proof high, but to increase sentences-especially for the worst (i.e. most violent) rapes." - William, London
"This is all part of the anti-man establishment, both north and south of the border. When a drunk man is involved in an act of violence, be it aggressor or victim, it is his fault for being drunk. When a drunk woman is involved in an act of violence, be it as aggressor or victim, then it's the man's fault." - David Leslie, Perth
"I am not a lawyer, and I confess to being baffled by the complexity of the law. But I know inconsistency when I see it. If someone is tried for a crime such as assault or murder, they are ill-advised to plead that they were under the influence of alcohol or drugs. Far from mitigating the crime, that would usually (as I understand it) be viewed as exacerbating it. The rule seems to be: get drunk or high at your own risk, for you are still responsible for everything you do. Harsh, but arguably fair.
When it comes to rape, this principle is reversed - but only on the side of the plaintiff. If a man and a woman have sex when the woman is intoxicated, and the woman decides afterwards that she did not consent, that is apparently rape. But if a man who is intoxicated rapes a woman, his drunkenness would be deemed an aggravating, not an extenuating factor. Or have I got it all wrong?" - Tom Welsh, Basingstoke
But sadly there are still individuals who can't see past the closest tree-trunk to get a good look at the forest: "Once again we see another article playing to the crowd and ignoring the victims - if there are no issues with rape as you seem to be lengthily trying to suggest (with a couple of platitudes thrown in for good measure) why was there another case of suicide this year from a victim the police did not believe?
Having been raped myself and knowing what you go through in such an incident, when the rapist was known to me, I can assure there are issues, we do need to address attitudes and pretending rape is the same as any other crime is nonsense. Clear evidence is the first port of call in such cases - and is normal for murder cases. Not so easy in rape.
There are never any protests made at the disgusting way we handle the situation, the prevailing male attitude to rape on show here today or upon conviction the length of time someone spends in jail (minimum). Out pops another dismissive piece to make the issue worse. Get another perspective woman. Preferably from the countless victims." - Laurel, London
While realising that it's distasteful and non-PC to criticise or even mildly disagree with a victim of any sort these days, it has to be said that just because rapes happen (which they do), and just because victims suffer terribly both at the time and later (which they do), and just because it's hell and all difficult to get convictions (which it is), is a piss-poor reason for deliberately sabotaging justice.
But then, that's the way we do things in the last twenty years, isn't it? Just like we ignore the real reasons for road accidents and the individuals who cause them because it's hard to do anything useful about it, and instead take the easy option of making all road-users suffer. Losing a loved-one in a car crash is tragic and sad. Being raped must be a dreadful experience which no woman should have to undergo.
But Laurel, being a victim doesn't automatically mean you know best. Unpleasant things may have happened in your life, but that doesn't give you carte blanche to think irrationally or to expect society to act irrationally just to make you feel better.
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