By Louise Livesey | 27 September 2007, 08:27

Hot on the heels of the government dropping plans to allow expert witnesses to appear in rape trials to discuss the aftermath of attacks on women (and y’know why women might appear unaffected, why they might not tell people, why they might not report it, why they don’t immediately stab the perpetrators and thus end up charged with assault or murder and so on) comes articles telling us to have allowed such evidence would have meant presuming guilt. (I’m not even going to get started on the fact that this article was published in the “liberal” bastion, the Guardian).

David Cox, a journalist with no training or apparently learning in these issues, has managed to construct such a straw man argument I barely know where to start in deconstructing it’s fallacies. But I’ll try…

So let us begin with his opening sentence

Isn’t it time to acknowledge that it’s beyond the capacity of the judicial process to deal with date-rape?

From The Guardian

Let us begin by pointing out that there is no such crime as “date-rape” and that “date-rape” itself is a contested term which is often used to denigrate the experience of the victim by suggesting she was somehow complicit. Let us begin with the fact that nowhere in his article does Cox go on to suggest an alternative, perhaps his idea is we should stop prosecuting “date-rape” entirely? Let us begin with the fact he spends the rest of the article defending the judicial systems record on dealing with rape cases.

Whilst Cox goes on to document the appallingly low conviction rate of less than 5% (it was actually 4.8% when the Bridging the Gap report came out and has dropped since). But, he suggests, the other 95% are either innocent or date-rape cases, a fallacy which can be immediately spotted as ridiculous and wrong. In fact Cox sets up a false dichotomy here by basically suggesting that stranger rapes get convictions and date rapes don’t - whereas the real situation is far more complex than that and involves a large number of stranger rapes not ending in conviction and a small number of date-rapes actually managing to get convictions. In Cox’s mind it seems to be “stranger-danger=conviction” which an oversimplification so naive as to be laughable.

Doubtless, many of the convicted 5% are unknown to their victims. Doubtless, many of the men involved in the other 95% are known all too well. Should we be surprised that juries acquit them, or that police or prosecutors consider a conviction would be unlikely in their cases?

Lets put some alternatives. Firstly the term “date-rape” is used to cover everything from a woman who has met/spoken to the assailant once to a long-term domestic relationship. Basically if they have ever seen him before, it’s called date-rape. Second, the “other” 95% is not constituted solely, or even in the majority, by “date-rape” cases. His statements are so far from being “doubtless” (a phrase usually used only by those harbouring a large degree of doubt) as to indeed be doubtful.

In date-rape cases, it’s his word against hers. Often, juries will be in no position to determine who’s lying. Campaigners sometimes speak as if any man accused of rape must necessarily be guilty. Yet jurors know that some women make false accusations, and that others misinterpret or misremember events or even deceive themselves about what’s occurred. In the face of uncertainty, our judicial system requires acquittal.

Now the only statement I don’t disagree with here is his final one, yes the system as it is constituted demands an acquittal if there is reasonable doubt. But notice here how Cox turns the well-constituted tables that it is women who struggle to get rape accusations taken seriously because it is “her word against his” and now presents the accussed as the powerless victim (it’s “his word against hers” as if she holds the power). And notice how “campaigners” are dismissed as illogical and untrustworthy characters here - ignoring the history that it’s “campaigners” who have had to fight for recognition of rape as a crime, even in marriage or where the woman has spoken to a man before or, and we’re just turning the tide on this one, where the woman is engaged in sex work or has agreed to some sexual activity short of penetration like kissing for example or holding hands. But no, here “campaigners” are a rabid pack baying for the blood of innocent men - but hold on 95% of rape trials do not end in conviction so isn’t there really pause for thought that, perhaps, what “campaigners” are talking about is that the conviction rate so mightly doesn’t reflect the truth that we need to do something to try and help women. According to Cox, no…

Attempts to deal with this situation by loading the dice in favour of the prosecution tend to rebound. If evidence about an accuser’s lifestyle is ruled impermissible, jurors are left wondering. Might a supposed victim’s behaviour indeed have seemed to imply consent? A victim whose lifestyle might have implied the opposite is denied the opportunity to get this across.

Now lets look at this as a matter of parity. A jury is not allowed to know whether the accused has been previously accused, charged or convicted of the same crime. That is a serial rapist is protected by the judicial system. But a jury, after leaving is granted by the judge, which it invariably is, is allowed to know whether the woman has had a termination or an STI - whatever the circumstances around that. And whereas prior accusations or convictions are ruled illegitimate in the decision making process, irrelevant factors such as the colour of the victims underwear are deemed legitimate. And if a woman refuses to prove she’s whiter than white (lets face it even Snow White had a quick snog before waking up!) then the jury is allowed to judge the woman a harlot and a liar. Plus Cox perpetuates the fallacy that consent is a passive process which can be “implied” or read through someone’s behaviour, whilst actually the new Sexual Offences Act makes clear that consent should be viewed as an active affirmation of desire for penetration (which is the legal threshold for rape accusations) rather than an absence of refusal. So, according to Cox, a jury is entirely within it’s rights to read all sorts of things into a woman’s refusal to disclose irrelevant facts but should be damned for wanting expert testimony on the impacts of rape. Anyone who watched the very poor celebrity rape trail TV programme or the more interesting non-celebrity verdict last year will realise that juries decisions aren’t based on the evidence but on preconceptions, myths and a web of beliefs often supported by no more evidence than “my brother’s mate’s friend was once accused by his girlfriend and she as a right nutter”. I’m not denigrating those members of the jury who carefully and properly set aside their prejudices to deliberate the evidence presented but, as that footballer who’s name is so inconsequential that I’ve forgotten proved, sometimes it’s about attitudes towards women, men and sex which predetermine an outcome before either barrister has had chance to draw breath.

Cox goes on to discuss his assumptions that withdrawing the notion of expert testimony was a tough decision. I’m not going to critique it here very much because I think it probably was. Although he lays the blame at the door of Vera Baird, MP, the new Solicitor General as if she alone could take such a decision. But he ends, detailing Women Against Rape’s call for some other kind of help in raising with the conviction rate with the lamentatious

Will the quest for a procedural solution go on for ever?

The answer is, No, My Cox, only as long as men keep raping woman and escaping just punishment.

But then he goes on to make the, as far as I can see, unforgivable paralell..

Rape isn’t the only crime that’s unresponsive to law enforcement. We don’t imagine that prosecuting drug dealers will solve the drugs problem. We urge their potential victims to “just say no”. We advise that those receiving emails from Nigeria that promise large sums of money in return for smaller upfront payments should exercise caution. When our houses are burgled, we’re hardly more likely than rape victims to see the intruder end up behind bars. So what do we do? We fit locks to our doors and windows. We keep our valuables out of sight. To suggest any comparable behaviour in the field of rape is considered outrageous.

Apparently, therefore, rape is akin to having your lawnmower stolen from your shed. A crime which, of course, carries the same threat of life-changing impacts such as STI infection, including HIV, pregnancy and physical trauma leading to an inability to conceive or even have penetrative sex depending on the range of physical and psychological damage. And also as if women do not already take a host of precautions to try and protect themselves. It isn’t outrageous to suggest women take precautions, it’s outrageous to suggest they don’t. And it’s even more outrageous that if a woman’s precautions aren’t good enough or fail then rape is their fault. Cox’s attitude that rape is merely an outcome of a “frisky” man and an inebriated woman ignores the truth because the rape statistics. It ignores that men, frisky or otherwise, can control themselves, whether or not presented with a prone woman who might be too tipsy to say no. It ignores that most women are not inebriated and do fight back and still end up getting raped and it ignores that rape isn’t a slur on the social characteristics and behaviours of the victim but a comment on the fact men find themselves immune to punishment in many cases if they dismiss a woman’s right to say no and continue to force their penis into her vagina, mouth or anus.

God forbid Mr Cox sit on a jury in a rape trial, and if it does I fear for the rights of the victim to have a fair hearing of her accusations.