Philobiblon: A rape law time-warp: back to the Sixties

Thursday, November 24, 2005

A rape law time-warp: back to the Sixties

After the depressing findings about public attitudes to rape, more bad news: a British judge has thrown out a case on the basis that an alleged victim was too drunk to be able to say definitively that she had not consented.

The prosecution in the rape case had said it could not go on after the woman admitted that she could not remember whether she gave consent or not or whether sex had taken place. The jury at Swansea Crown Court was told: “Drunken consent is still consent.”
The judge agreed, instructing the jury to return a verdict of not guilty “even if you don’t agree”.
The drama student was allegedly raped by another student, who was working as a security guard, while she claimed she was unconscious through drink in a corridor outside her flat in a university’s hall of residence.
She told the jury that she had no recollection of events but insisted that she would not have agreed to sex with the man.

Now I wasn't sitting in court so I can't comment on the facts of this particular case, but let's imagine a hypothetical. A woman is huddled outside her room in a drunken stupor and a security guard, a man with at least a moral duty of care, comes along - on duty, (presumably) stone-cold sober

It is obvious the woman is drunk. And that she can't, in any meaningful sense of the term consent - she is temporarily mentally disabled. (Were she indeed a sufferer of a permanent mental disability, there would surely be no questions that this is a crime.)

If he has sex with her, is that not rape? Or should, at least, a jury be allowed to decide - based on the full details of the case, the demeanour of the witnesses before them, and their own commonsense.

I would have thought so, and I thought the law indicated so. But it seems it is time to work again to reform the law ... or maybe the judges.

***

Another time warp - John Kerry, remember him? One of his young speechwriters has set out what he thinks went wrong. The gist is that instead of relying on focus groups, set-up situations and all the tricks of the spin-doctor's trade, it might be time to pick a good, decent candidate, and let them campaign as their conscience dictates. Interesting thought. Would be nice to think it would work.

6 Comments:

Anonymous Philip said...

I read this front page article earlier today and it appears to me that the case failed on two questionable points. The first being that "drunken consent is consent". I think the point you make on this more than adequately debunks this one. Secondly the girl in question couldn't remember if she given consent or if she had had sex. If she was not in a position to give consent than no consent can have been given (again back to your point). Also if it came to court I would assume that evidence of sex having taken place would have been there by some form of test after the event?

I suspect that the attitude of the judge to the case complemented by a weak prosecuting counsel also had some bearing on the outcome. I agree that the evidence should have been put before the jury and their verdict have been sought. The precedent that this case now creates can only be a further barrier to rape victims coming forward and a further lowering of the abysmally low conviction figures in such cases.

As a man I find every aspect of rape to be abhorrent. The attitudes of people in this country and the mealy-mouthed justifications for the act which get trotted out time after time are despicable and appeasing to the perpetrators. I would at least wish to see castration as the mandatory punishment for all those convicted of this dreadful crime.

11/24/2005 02:14:00 pm  
Blogger Natalie Bennett said...

Thanks Philip. It is great to hear a supportive male voice on this issue. You hear and read so much terrible stuff about women "asking for it" that entirely removes the agency of the rapist, and suggests he can't help himself. That is, when you think about it, one hell of a slander against men.

11/24/2005 02:39:00 pm  
Anonymous Philip said...

There is an interesting article in today's e-mail version of The Friday Thing which links the case reported in The Times yesterday with the Amnesty International report published earlier this week which gave the findings that 1 in 3 people believe that women who are raped have themselves to blame for this callous crime. To my mind it could be more hard hitting but if it helps to raise awareness of this issue further then it is a step in the right direction.

The article is not on their online site yet but probably will be sometime next week.

11/25/2005 01:03:00 pm  
Anonymous Tony Hatfield said...

Philip,
There's appears to be no problem in initial complaints of rape. I can't remember the latest home Office figures, but it's the attrition rate that's important.
t

11/25/2005 06:54:00 pm  
Anonymous wiggles said...

Tony,

"There's appears to be no problem in initial complaints of rape."

I think your are right about the attrition rate but I simply cannot agree with your first point. Whilst the number of reported rapes are showing a small rise it is from a low base as the figures extracted from the BBC News website following the Amnesty Internationl report on attitudes to rape in the UK show :-

"The number of recorded rapes of women in 2004/5 was 12,867 - up 4% on the year before - although police estimate that just 15% of rapes come to their attention. Only 6% of reported rapes result in a conviction."

To my mind these appallingly low figures, taken with the attitudes to rape as seen in the Amnesty report and of the courts, as shown in the case which Natalie highlighted in her original post (which is sadly not a rare example), do not bode well for any real improvement in dealing with this despicable crime.

11/27/2005 01:22:00 pm  
Anonymous philip said...

Sorry, but that last comment should have been under my real name. My password manager was palying up.

11/27/2005 01:31:00 pm  

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