Saturday, 17 November 2007

Getting away with rape

There's been a lot of talk in the last few days about the tiny number of rape convictions in the UK and what can be done about it.

The blame is directed widely: at the police for not taking rape victims seriously; at lawyers for not presenting stronger evidence; at judges for finding excuses for rape; and at juries for giving people the benefit of the doubt.

But to my mind they're all missing the point. I think the real problem is that the evidence given by the victims doesn't point clearly enough to rape, to lack of consent, to coercion.

Too often it seems that instead of the expected struggle and resistance and non-cooperation the victim actually gave in to the other person quite easily and with barely a murmur of protest.

Well, says the victim, that's because I didn't want to make it worse. If I had put up too much of a struggle, I'd have been attacked more viciously and ended up seriously hurt. So I played it safe and did what I had to so it'd be over quicker.

Of course that's totally understandable. Who wants to finish up stabbed or strangled or dead? Who wants the rapist to get so furious they lash out wildly and whack you to bits?

But for a jury looking for clear-cut evidence of non-consent, the cautious, non-provocative approach creates too many doubts about what happened, and they don't know who to believe. So they end up acquitting.

I honestly don't know the answer to this. If the court wants resistance but the victim rejects it, then how do we get more convictions?

PS: The other obvious reason for the dearth of rape convictions is that many women don't even report it for fear of the consequences - humiliation, disbelief and further violence. The level of unreported rape uncovered in surveys is truly shocking.

11 comments:

Wisewebwoman said...

Great post from a male of the species, Nick.
Nick:a big shock, most women I know have been raped. I've been raped. Not beaten or bruised in the classic sense but taken against our wills. Intimidated by the rage and anger and sheer brute strength and threats. None of us took the F***s to court, to be raped again by the court system, our sexual history taken into consideration (what about his, what about HIS???). Just say no, my arse. These brutes got excited with 'no'.
We estimated at one group discussion that 40% of women out there have been raped. It could be a lot worse than that. Women hesitate to call some sexual episodes rape (fear of their partner's condemnation of an imaginary 'egging-on', fear of court system, fear of jeopardizing their relationship with their rapist-partner -oh yes!).
Plus, as always, the systemic indoctrination of the patriarchal system. Women are there to please, be seen, ****ed and not heard.
Very, very little has changed over the years.
You got me on my podium, Nick with this one.:>)
And a BTW, I've asked several of my male good friends if they would prosecute a rapist if they had been raped in a back alley, etc. and after careful consideration they said no. Would you?
Food for lots of thought. I'll be interested in the rest of the comments here.
XO
WWW

Nick said...

Phew! Thanks for that, www. I have to say none of what you say surprises me, I know how many vicious bastards there are out there, and I know how hard it is to fight back in any way at all. Research shows rape is easily as common as your straw poll suggested. And as you say, defence lawyers can bring up all sorts of totally irrelevant issues like sexual history.

I haven't been raped myself, though there were situations where I might have been. Would I prosecute? I think as I said it would all depend on clear evidence of resistance and in the circumstances would I resist? I've no idea.

Medbh said...

Society assumes implied consent by all women all the time. We are the sex class. Rape is the only crime wherein the burden of proof is on the victim and it's the only crime where the victim is on trial more so than the criminal.

Only a tiny number get reported because women know they'll be put through the ringer if they do and there are so few convictions because the patriarchy tells me that they have the right to women's bodies and that all women are asking for it.

A man know when a woman is hesitating and hedging that she doesn't want sex, as Deborah Cameron points out in her book. Some men just don't give a shit about that and go ahead and rape them.

Nick said...

Well, Medbh, surely the burden of proof is always on the victim, be it burglary, unfair dismissal, fraud, libel or whatever. But I would agree that rape victims are MORE on trial, in that they have to defend their own character and sexual behaviour against endless smears and innuendoes.

Victims of anything can be put through the ringer - I know people who've claimed unfair dismissal and been crucified for it. Unfortunately proving your case in court is always tough because the lawyers do their best to pick your evidence to pieces. Anyone in that situation needs an awful lot of psychological support to get through it.

But you're right, most men consciously or unconsciously assume they're entitled to use women's bodies any way they like. They can't really see them as equals deserving the same respect and consideration.

Medbh said...

Hey, nice picture with the post, btw.

Nick said...

Thanks, Medbh. I spent a long time looking for that. Obviously it had to be one where the woman was getting the better of the man and not vice versa!!

John Self said...

"Rape is the only crime wherein the burden of proof is on the victim" - not so; as Nick says, all accused persons are innocent until proved guilty, so the burden of proof is always on the victim (through the police or prosecution services).

There is probably a misunderstanding in the public mind that for rape to occur, there must be resistance or an express refusal of consent. Of course that's not the case, as the absence of positive consent is sufficient.

That however opens the question of how the man knows when the woman is truly consenting. I suspect it's very rare, when a man has sex with a new partner, for there to be an express conversation on the subject with the woman explicitly saying Yes. Does that mean it's rape where the Yes was implied and not explicit? And do men know the difference?

It's a while since I studied criminal law but I know the law used to be that if a man genuinely believed the woman was consenting, then it could not constitute rape. This, I suppose, is to prevent the possibility of a woman subsequently regretting sex which was consensual at the time and retrospectively changing her mind. But the flipside is that it gives men almost carte blanche to claim they thought consent was present when they may not have done.

All the above of course is in the context of 'date rape' or the like, as opposed to the stereotypical violent attack in the woods, where the waters are much less grey.

Nick said...

Thanks for that, John. The legal situation is even more complex than I realised, if the crucial factor is lack of positive consent or the man not genuinely believing there was consent. Of course that still means clear-cut resistance makes it much easier to prove both those things. Otherwise it's anybody's guess what was actually going on in the couple's minds and exactly how they were interpreting the situation. Especially when the couple are usually on their own with no other witnesses to clarify what was happening.

John Self said...

Sounds like they've been listening to you, Nick!

Nick said...

Not sure about that, John. The new measures are interesting but they don't seem to tackle the issue of no clear-cut resistance. Surely a video of a woman claiming non-consent wouldn't be any more persuasive than personal evidence to the same effect?

Michael Ejercito said...

Rape is the only crime wherein the burden of proof is on the victim and it's the only crime where the victim is on trial more so than the criminal.
The burden of proof is never on the criminal.