Wednesday, 5 August 2009

The impenetrable problem with rape

The crime of rape has three elements: (i) there must be intercourse (vaginal or anal, the distinction between buggery and rape was removed some years ago), (ii) the victim must not have consented to the act and (iii) the perpetrator must not have believed that consent was given. Most, but by no means all, contested allegations of rape revolve around consent. Either it is in question whether the alleged victim consented or the defendant asserts that he (or she) genuinely believed the other party did consent.

A typical case involves a woman alleging that she did not consent and the male defendant saying he believed she did consent. Sometimes the woman is not contradicted when she says she did not consent and the trial revolves solely around the state of mind of the man. Say it is indeed the position that the woman did not consent but that the man believed she did. From her point of view what was done to her was every bit as bad as if the man knew or believed she did not consent. From the man's point of view he did nothing wrong because there were no signs that the woman was not a willing participant. In such a case the woman is a victim because she was forced to have intercourse against her will, however the verdict should be not guilty because the man believed she gave consent. It's not a happy state of affairs.

Take a slightly different example, again the woman did not consent but it is not clear whether the man believed she consented. For so long as guilt must be proved beyond reasonable doubt, the verdict should again be not guilty. Again the woman is a victim but the man's guilt has not been proved.

For tactical reasons it is sometimes best not to challenge the alleged victim when she says she did not consent - it might be that such an attack could backfire for the defence where the woman is seen as vulnerable. In many cases, however, the woman's consent and the man's belief in consent revolved around the same evidence. If she showed no outward signs of lack of consent, that is consistent both with her actually consenting and with the man believing she consented.

There is only one way to ensure that a conviction for rape follows where the woman did not consent to intercourse and that is to remove any need for the man's state of mind to be considered. This is fraught with difficulties because the man could then be convicted and given a lengthy sentence when there was no way in which he could have thought he was doing anything wrong. That is just as much of an injustice as it is for a woman to find her attacker is acquitted because of his belief even though she did not consent. A half-way house is possible by reversing the burden of proof when it comes to assessing the man's state of mind. Once the jury is satisfied that the woman did not in fact consent, it could then be for the man to make a positive case that he believed she did consent. In such a situation reasonable doubt would not help him, he would have to prove that he positively believed she consented. Although it would be unusual for the burden of proof to be placed on a defendant in a serious case there are numerous examples in the law of defendants having to prove particular defences once the prosecution has laid the necessary foundations to make a case against him.

Whether reversing the burden of proof would improve conviction rates is pure speculation. One possible result is that more attention will be focussed on the woman's state of mind in cases where, at present, a tactical decision is taken to concentrate on the man's state of mind. If his state of mind has to be proved and hers only has to be subject to a reasonable doubt, it would not be surprising to find a shift in tactics to match the shift in the law.

I have never read of any proposed change in the law that provides a sound answer to the fundamental difficulty arising in cases where the woman does not consent but the man believes she does. Politicians can bleat until they are blue in the face about the need for a higher conviction rate in rape trials, but for as long as the law takes account of the man's state of mind their protestations will just be hot air.


dex250 said...

Would it be a fair assumption that in almost all contested rape trials one or both participants were drunk? I find it hard to believe there could be this sort of genuine confusion over sexual intercourse between two sober people.

Andrew W

Anonymous said...

I agree with above poster, most of the 'did she, didn't she' cases that we read about (although I accept that only a fraction are reported on) revolve around the woman being inebriated to such a degree that she neither consented nor rebuffed the man but he believed she was a willing participant due to the actions earlier in the evening.

And what if the situation was reversed, a very drunk man waking up next day with little recollection of the event, could he prosecute the woman for rape?

TheFatBigot said...

Mr Andrew, I am sure it is the case that drink lies behind a lot of cases, but by no means all.

It is not unusual to find the woman saying she was sober and invited a chap back to her place for a cup of coffee and a chat only to find he became aggressive and demanding. In fear of physical violence she did not resist his sexual advances, although she did not consent either she was just too scared to put up a fight. There is nothing inherently implausible in this.

Mr Mous, the law recognises that a man can be raped by a woman as well as vice versa. In practice this offence is usually provable only in those cases in which the male is incapable in law of giving consent, such as a female teacher seducing a teenage male pupil who was a willing participant but a victim of rape because he was not old enough in law to consent to sexual activity.

A particular problem arises in attempting to prove rape by a woman of a man of full age. In the normal run of things intercourse requires engorgement of the willy, a state of affairs which tends to suggest that the man was ::: ahem ::: up for it.