Rape & the police & juries & drink

// 17 August 2008

Lest we get too excited that a rapist ended up behind bars, consider the sobering news of an apparent drop in the number of rapes being reported to the police, and Neanderthal attitudes to women drinking among senior police officers and the general public, from The Guardian.

First, the police:

A senior adviser to the government has told the Guardian that in some parts of England and Wales cases which did not fall into the classic “stranger rape” category – such as those where the woman was drunk or was attacked by her partner – were being dismissed by officers with a “Life on Mars” attitude mirroring that of the 1970s TV detectives.

Dave Gee, the former head of Derbyshire CID, said a failure to take rape seriously enough went right up to chief constable level in some places.

The number of rapes recorded as crimes fell by 8% in the last year, with significant drops in six forces, said Gee, who advises the Association of Chief Police Officers. In one force the total for 2007-08 fell 40%.

He stressed that in some areas “fantastic” improvements had been made, but said: “The biggest single problem we face is with attitudes. We’ve still got cases at both police and CPS level the outcome of which is decided when they first receive the complaint based on what they think the credibility of the witness is.

“They don’t try to improve the credibility of the witness; they make a decision at the outset that ‘this is going nowhere’ and then the case is on a downward spiral.

“People are still being dragged kicking and screaming to the plate. They say they’re just being realistic but they’re second-guessing outcomes. Around the country you still have individuals who are charged with responsibility at a senior level who are cynical at best about rape in general. People are saying, ‘Is it a priority for me?’.”

It’s not like this is anything new, really, but it’s still shocking. We have a long way to go, if senior police officers effectively don’t see rape as a crime worthy of their attention.

Even if a rapist happens to come up against a police officer who does see sexual violence as a priority, there’s still the jury to contend with. From the mouths of the defence counsel:

Marion Smullen, head of chambers at One Inner Temple Lane, who frequently acts as defence counsel in rape cases, said: “However much politicians want to change the attitudes to rape, juries are still fairly judgmental where alcohol is concerned. It’s certainly something that helps me as defence counsel.”

A typical defence would be to argue that the woman consented to sex because she was drunk and then cried rape when she regretted it in the morning, she said.

Women drinking is still regarded as not quite right by a lot of juries. If they think maybe the woman has contributed in some way by being drunk, they will be reluctant to send someone to prison.”

Miranda Moore QC explained: “Defence counsel will say, ‘You’d had a few, you were up for it.’ You might say, ‘Yes, I’m sure a nice girl like you like you probably wouldn’t choose someone like him if you were sitting round the dinner table, but it’s amazing what alcohol can do. You wouldn’t normally fancy him but you’d had a few and thought why not?’

“It’s something that strikes a chord with a jury – everybody knows there are a lot of things you might do drunk that you wouldn’t do if you were sober.”

Victims who had been drunk were seized on by defence counsel as “manna from heaven”, Gee said. Fears that alcohol consumption could wreck a case were used by some officers and individuals in the Crown Prosecution Service to decide a case was not worth bringing to court.

But a handful of convictions secured recently in cases where victims had been drinking showed that if detectives put the effort into securing the evidence and the CPS was “bold” enough, it could pay off.

My advice to cops is: investigate. If someone gets their car nicked or their house broken into and their DVD player’s gone, then you start an investigation, irrespective of the respectability of the victim.

So, according to the general public, rape is fair punishment for daring to drink. And people say we live in a post-feminist world.

Comments From You

Cara // Posted 17 August 2008 at 10:09 pm

Good post. EURGH exactly – defence do not attack the victim’s character with other crimes. Robbed? You were drunk and gave your DVD player away! I think not.

Although actually people are MORE likely to make false reports of theft for insurance scams, than to falsely report rape. Yet police do not routinely disbelieve people who report theft.

I also don’t buy that having a few drinks makes people act completely and utterly out of character. If you wouldn’t fancy someone drunk, you wouldn’t sober. Simple as. Even if you did regret having sex the morning after, it tends to be something you put down to experience, not a reason to decide to falsely report rape!

Simple: the police should investigate rape cases and CPS should decide on the *actual evidence* not on *completely frickin irrelevant factors* such as whether the victim had had a few drinks.

nekokonneko // Posted 18 August 2008 at 3:30 am

I would like to put to a jury that if I ever robbed a man who was passed out drunk on the street, does it mean that he was being irresponsible and thus I am not to be punished for stealing his wallet and using his money to but myself an iPhone.

Stephanie // Posted 18 August 2008 at 11:45 am

It’s a scary, scary thought that people still believe that if a woman drinks (a perfectly legal and *generally* socially acceptable activity) that she’s a fault for being raped. There was a poll in Ireland and 40% of people said that if a woman drank alcohol she was to blame for being raped. Absolutely disgusting.

http://musinandconfusin.blogspot.com/2008/03/its-official-40-of-people-make-me.html Some of the stuff said is there (the original link to the report is down). Also apologies for the use of profanities but I was more than a bit irate when I wrote that….

Kat // Posted 18 August 2008 at 11:49 am

What exactly would be the point in ‘crying rape’ when I woke up with an unpleasant specimen in my bed? I just don’t understand why people think women would do this. Unless a woman genuinely believed that the man had coerced her in some way, there would be NO value in bringing a rape charge simply because she regretted it or felt a bit angry with herself. Women are able to take responsibility for their actions, when I have slept with men I wouldn’t normally sleep with I was aware that it was MY responsibility for a drunk lapse in judgement. Why would I hate the guy so much I would want to accuse him of rape? It makes no sense.

JENNIFER DREW // Posted 18 August 2008 at 12:02 pm

The claim that women who drink are more likely to ‘consent’ to any passing man sexually penetrating their bodies is a generic one. It does not prove an individual women who was drunk at the time she was allegedly raped by a man had ‘consented.’ But defence counsel in rape cases routinely make this generic claim and juries since they comprise the general public still predominantly believe these rape myths. If it was true that a drunken woman ‘consents’ to any available man penetrating her body when they are there not predominantly stranger rape reports when in fact it is and always has been the reverse. Male rapists predominantly rape women they are acquainted with or who were their ex-partners.

Also, fraudulent insurance claims are far higher than false rape claims but this fact is constantly overlooked.

The police force too are not immune to our rape culture and they are far from holding unbiased and non-judgemental attitudes.

Amy // Posted 18 August 2008 at 12:08 pm

Good post. Clearly the general public (who are 50% women lest we forget) are still woman-blaming and are oblivious to the reality which is that drunk or not, most people know whether they’ve been raped or whether they just ‘regret’ having sex. Why has no-one realised that the vast majority of women do not ‘cry’ rape… with the conviction rate as low as it is, what would be the point exactly?

Sabre // Posted 18 August 2008 at 12:32 pm

Even if a woman was blind drunk, passed out on a pavement alone with her skirt over her head it would not be her fault if she got raped. It would be 100% the rapist’s fault. People just don’t seem to understand that.

As for the argument about how women behave when drunk, this infuriates me! Apparently if a woman drinks it’s her fault if she’s raped, but if a man drinks and rapes a woman, he’s excused because alcohol makes you do things you wouldn’t normally do. Drunk men get a lot of slack considering the shit they get up to, whereas drunk women get judgement and blame, even if they haven’t actually committed a crime. What the hell is wrong with people.

Tony Moll // Posted 18 August 2008 at 12:46 pm

It is never a womans fault for being raped, drunk or not. Period.

However juries are there to find out if there is evidence beyond reasonable doubt. In most cases there is too much reasonable doubt or too little evidence – as in most ‘he said, she said’ situations.

That will always be the case unless we have a legal situation where one persons testimony is to be automatically considered superior to another’s.

Helping women avoid situations that they may be raped without the ‘victim blaming’ attitude of the daily mail, may actually go some way in preventing rapes.

Soirore // Posted 18 August 2008 at 1:26 pm

Like the rest of you this makes me really angry. What I don’t understand though is the legal definition of consent.

I thought that it was the man’s responsibility to prove that he had obtained consent (in an ideal world I guess). If the woman was drunk then her judgement may be impaired therefore any consent obtained cannot be relied upon. Why can’t police/ lawers/ the rest of society see the rape of drunk women as a deliberate attack on the vulnerable rather than it being the victims fault?

Jess McCabe // Posted 18 August 2008 at 2:50 pm

Tony Moll – Women are raped by their partners, by the people close to them, whether they’ve had a drink or not. There’s no magic combination of actions a woman can do to avoid being raped. Even if a woman contrives to curtail her life, never leaves her own house or touches a drop of alcohol, she may still be raped. Work to prevent rape means stopping men from raping, not stopping women from getting raped, as the latter is impossible.

Fran // Posted 18 August 2008 at 2:55 pm

Tony Moll: I agree that sometimes it can be hard to determine who is telling the truth. However, the problem here is that other factors have contributed to the low conviction rate — the indifference of police and the tendency of juries to blame the victim. If rape victims are treated this way when they report a rape, no wonder so few rapes are actually reported.

Sabre // Posted 18 August 2008 at 3:09 pm

“It is never a womans fault for being raped, drunk or not. Period.”

“Helping women avoid situations that they may be raped without the ‘victim blaming’ attitude of the daily mail, may actually go some way in preventing rapes.”

Tony Moll: Your first sentence started well but then you negated it somewhat with the last sentence. What will really stop rapes is preventing men from raping, and making that prevention a MAN’s responsibility not a woman’s. Rape is still seen as a women’s issue despite the fact that the vast majority of rapists are men, and therefore men’s attitudes need to change, not women’s. To achieve this we will need a big cultural shift in thinking. E.g. how about men’s magazines running features on rape instead of just women’s? Or having a debate on the real-world impact of the proliferation of pornography? Why are these always seen as women’s issues? Some good points are written here: http://www.scarleteen.com/article/boyfriend/how_you_guys_thats_right_you_guys_can_prevent_rape. Although the article is directed at men I think women could learn a lot from it too; many are just as guilty of victim-blaming.

Of course women (and men) should take measures towards personal safety because this is not an ideal world, but ultimately that doesn’t mean the victim is responsible if those measures fail. Any implication of this being the case is extremely harmful.

Sam // Posted 18 August 2008 at 3:48 pm


“I thought that it was the man’s responsibility to prove that he had obtained consent (in an ideal world I guess).”

Are you seriously suggesting this would be the case in an ideal world? I have two problems with this.

1. It’s impractical. Do you expect people to sign contracts before they fall into bed together? How do you ‘prove’ consent?

2. The idea that the man needs to prove consent perpetuates the harmful and inaccurate stereotype that sex is something that men always want that is carefully guarded by women until they allow men to take it from them.

Anna // Posted 18 August 2008 at 4:11 pm

‘Helping women avoid situations that they may be raped without the ‘victim blaming’ attitude of the daily mail, may actually go some way in preventing rapes.’

How far exactly do you want to take that? Okay, I’m not allowed to go get blind drunk then walk home alone. But wait – I’m more likely to get raped by someone I know [as I found out to my cost, on asking someone to look after me when I was drunk and had already been assaulted]. Okay, so I shan’t go out drinking at all. I’ll go out and stay sober. However, women being attacked after about 9pm seem to receive pretty much the same ‘what was she doing out so late’ treatment. So.. I’ll stay in.

How far DOES this go? Would you rather I stayed in my room, shunning all male company and wearing a chastity belt?

Would, were I to get raped then, I be ‘blameless’?

No.. because I’ve had sexual partners in the past [and quite a few, which according to 8% of the population means I am entirely responsible for being raped, regardless of sobriety].

Women can’t ‘avoid’ being raped.

Saranga // Posted 18 August 2008 at 5:18 pm

Jess you’ve managed to succinctly say in a few lines what I’ve just spent a long rambly blog post trying to explain!

Daniel // Posted 18 August 2008 at 5:50 pm

Tony does have a point in the whole proving beyond resonable doubt thing though. Being drunk doesn’t excuse you being robbed but it is going to leave you with a less than perfect memory of the night and so decrease the reliability of one’s self as a witness.

I’ve not been on a jury (my mum has but not on anything major) but if I was, I think I would personally be plagued by the fear of convicting an innocent person of a crime they didn’t commit. I think it’s still probably true today that most juries don’t like convicting people, not matter what the crime and will look for excuses to let them off if there is any doubt. If a key witness (or rather THE key witness in a rape case) can be shown by the defence council to not be able to remember all the events leading up to a crime, it will naturally cast doubt on their testimony. I would have thought that the role drink plays is not in maing it more or less likely that someone will become the victim of rape but that

it makes an allready ridiculously difficult charge to convict anybody of, even more difficult.

Rose_hasty // Posted 18 August 2008 at 8:07 pm

Jess- I absolutely agree. “Helping women avoid situations that they might be raped” as Tony Moll said is not only undesirable it’s absolutely impossible. The likelihood is your attacker will be an aquaintance, boyfriend, husband, father, uncle etc. Making women adjust their lives to work around the ‘uncontrollable wrath of the rapist’ is intrinsically equivalent to the victim blaming you would find in the Daily Mail.

Anne Onne // Posted 18 August 2008 at 9:21 pm

Tony, it’s very easy to say that there are things one should do to prevent rape, until you start to consider what it would actually mean for half the population to completely change their behaviour, because a portion of the other half of the population might rape them.

The list is endless..Don’t go out alone at night? Don’t go out at night? Don’t go out at all? Always go out with a man present? How can you know if you can trust them, if you’re supposed to be suspicious and responsible for your own rape if he rapes you? Don’t drink a lot? Don’t drink at all? Don’t let a guy you’ve just met come up for ‘coffee’ even though you really want to? Never bring a guy back unless you’ve been dating for how long? Avoid ever being alone with men (or a man) you don’t know?

These things are impossible to avoid entirely. Many of us can’t avoid everything people believe increases our likelikood of being raped. We can’t always avoid going out alone, being alone with men or other such. And we shouldn’t have to. And many of us don’t want to, either. Yeah, we resent having to give away our freedoms, little by little, when nobody is thinking about why men rape, or the fact that most women are raped by family, friends or intimate partners stone cold sober.

It’s the same principle with terrorism. Yes, I don’t want to be exploded during my daily commute or anywhere else. But I also don’t want the whole country to have their phones tapped, fingerprints taken, national ID cards or be kept without charge for half a year. In short, when the ‘protection’ involves a large sacfifice on the part of the victim, with little likelihood of preventing anything, is it truly worth it?

It might be hard for you to understand, because you’ve never had to seriously worry about rape, never had the media constantly telling you how to avoid getting attacked, that you are to blame if you are attacked*. But we have grown up with this message EVERY DAY of our lives. No sooner do we learn that we shouldn’t take sweets from strangers than, as a teenage girl we learn what some men might want to do to us, and how we are supposed to prevent it. It’s all we ever hear about. Only, nobody tells us that if we’re raped, it’s likely to be by someone we know well. For good reason – many women wouldn’t want to believe it any more than most men. It’s tempting to hope that some cloves of garlic will keep the vampires away, and that if only you control yourself a bit better, take a bit more care, nobody will rape you. But of course, that’s not how it works in real life.

We resent these constant demands for two reasons. One: they put the onus on women to try to prevent rape. We don’t go out looking for it! We’re not trying to get a man to rape us if we drink (like every man feels safe to do), are out (like every man feels safe to do) or are alone with a member of the opposite sex (like every man feels safe to do).

Two: Where is the rapist? Where is the blame on men who get women unconsious drunk to sleep with them? Who spike drinks? Who don’t take no for an answer? Who rape their daughters, wives, nieces, sisters, friends, colleagues, their fellow humans? Why are there no books teaching young men how NOT to be a rapist? How to respect women, how to define boundaries, and how to respect them? Where are the articles about all the young men who feel entitled to rape women because they can?

*Even though men get attacked a lot more on the street, there isn’t the same narrative in society blaming men for it. We don’t see books and magazine articles published about how men can and should protect themselves from assault, nor do we get court rulings that a male victim didn’t do enough to protect themselves, or could have done something to prevent their assault.

Rhona // Posted 19 August 2008 at 12:57 am

@Anne Onne – I started reading this thread wanting to comment, then realised you had said everything I wanted to and possibly much more succintly than I could have. Thank you! ;)

We’ve had some interesting debates recently about the notion of priviledge, but ultimately, the highest position of priviledge I see every day is, sadly, my OH warning me to ‘be careful’ when I go for a run at night, go on a night out or travel by myself. I realise he is trying to be kind and supportive, but it saddens me that, as a man, he will never realise the extent by which my world is limited by two words.

Kath // Posted 19 August 2008 at 9:22 am

Rape is always the perpetrator’s fault never the victim’s. Most rapes are carried out by someone known to (and trusted by) the victim. There is no possible way for women to avoid all situations in which they might be raped. But I think people are being harsh on Tony Moll. The student’s union at the university where I work offers advice to new students about which areas of town are more dangerous to walk through at night. That is to say that more attacks and sexual assaults have been carried out there than in other areas. If students avoid those areas it does not mean they will not be attacked and if they do walk through those areas (and of course many people have to) it does not mean they deserve to be attacked. But it is common sense that they should be told which areas are more dangerous. It sounds to me like “helping women avoid situations that they *may* be raped without the ‘victim blaming’ attitude of the daily mail” and it “*may* actually go *some* way in preventing rapes.” Should the student’s union not be doing this?

Sarah // Posted 19 August 2008 at 9:34 am

I hate the ‘be careful’ warning. It’s so pointless, for one thing – how exactly does one go for a run, or walk home, or whatever ‘carefully’. What it really means is ‘go out alone if you must, but remember to feel constantly anxious and afraid of being raped’. Feeling afraid won’t make you any safer, but it punishes you for daring to think you can act like a free human being.

I don’t think everyone who says ‘be careful’ means it that way – it’s just something that many people say automatically every time a woman steps outside without an escort. I just wish they would think about what they’re saying and what it actually means.

I’ve tried to explain this to my boyfriend, and pointed out that the warning is superfluous anyway – most women can’t walk down a dark street alone without the nagging thought of ‘what if I get raped?’. Even those of us who know the statistics about how few rapes actually involve a woman being attacked by a stranger in the street, and how many are perpetrated by a trusted partner or family member or ‘friend’. We have that fear of stranger-rape drummed into us from an early age, we don’t need reminding about it every time we leave the house. We already know it can happen. But unless we’re going to live our entire lives under effective house arrest, we need to keep that fear in proportion and get on with our lives as normally as we can. That constant, sinister ‘be careful’ does not help.

Kath // Posted 19 August 2008 at 10:06 am

I say “be careful” or “take care” to my boyfriend when he leaves my flat to walk home. Of course it’s superfluous. It’s a way of showing I care about him.

Emily // Posted 19 August 2008 at 10:41 am

I once left my handbag and portable cd player on the back seat of my car when I popped into the shops for 5 minutes. When I came back the window was smashed and my bag and cd palyer were gone. Some bastard had nicked it – was it my fault that some cretin had stolen it? – no of course not.

He (or indeed she) was completely responsible for their actions. Did I expect the police to investigate it – certainly (which they did but with no success).

However, were there things I could have done to perhaps make myself less of a target? – of course there were.

Its the same with rape.

It is definitely not the woman’s fault and the police should investigate any such attacks without blaming the woman. However, it is ridiculous to deny that there are steps women can take to reduce the likelihood.

I am not suggesting that we should never drink or lock ourselves away like hermits; nor am I suggesting that you can ever be 100% safe – examples of rape by friends have been given above; but we girls must take some responsibility for ourselves and indeed we owe it to ourselves to be cautious. We should try not to get blind drunk or end up passed out on the pavement “with our skirt over our head” for example.

In an ideal world no crime should or would ever be committed against anyone, male or female, in any mental or physical state but unfortunately we don’t and in my opinion it is naieve and downright irresponsible (especially when teaching younger girls – which I do) to suggest otherwise.

Sabre // Posted 19 August 2008 at 10:45 am

I do think it’s good for both women and men to take care with personal safety. However the emphasis is hugely on women to ‘take care’ yet it’s young males who are more likely to be attacked and injured on the streets. Women are statistically most likely to be attacked in their own homes (so it’s not ‘better the devil you know’!)

I got tired of feeling afraid so I went on a self-defence course a few months ago. The instructor gave us lots of tips on personal safety which were useful for both sexes, yet there wasn’t a single male there in the mixed class. All my male friends declined to come, sniggering as they did so and clearly unaware that they would be more likely to benefit from it than me. Men are simply not conditioned to be afraid of being out, getting drunk or doing anything they want to do. Even the guy who has been mugged three times didn’t want to come. Women and girls on the other hand, are trained to be afraid of men and then to seek protection from other men.

I would recommend anyone take some self defence classes purely because it made me feel less afraid, more confident and informed and it also cleared up a lot of myths. It is sensible for women to take care on the streets, but actually it’s even MORE important for men to do so. That message was lost though as there were no men.

Women are statistically safer on the streets than men! We should stop being so afraid! Feeling and looking confident also reduces your chances of being attacked. But you’ll never hear that message loud and clear because women are supposed to live in fear of the evil stranger, it’s a good way of policing our behaviour you see.

Soirore // Posted 19 August 2008 at 10:46 am

Regarding “Beyond Reasonable Doubt”

Daniel (and I don’t think you’re the only one, male or female) is misunderstanding the legal reasoning of finding a rapist guilty. I’m sure a more qualified person can explain this better than I can but anyway.

Rape is sexual intercourse without consent. The degree of responsibility the perpetrator takes regarding that consent is “recklessness”. This means that the issue of law and guilt is not whether the victim can remember everything clearly, or whether she was “giving the wrong signals” or whatever. The issue is whether the accused can prove that he gained consent. My understanding of recklessness is that if the accused cannot prove that he really understands the notion of consent (and that it cannot be given when a women is excessively drunk) then he is guilty. Remember it is still rape if the victim withdraws consent at any point. It seems clear then that the responsibility in is on the defence to prove that consent was actively gained not the other way around. Does the accused seem to care much about the victims consent? If no then he is guilty.

Unfortunately the misogyny and victim blaming prevalent in public opinion (male and female) surrounding rape make it difficult to get the correct response at trial.

Tony Moll // Posted 19 August 2008 at 11:30 am

Thanks to Daniel, Kath and the few others who saw the point I was trying to make.

It seems to me that gender politics is being put ahead of the safety of women. Rose let the cat out of the bag when she says that ‘helping women avoid situations where they may be raped’ is undesirable. What is undersirable is that some men are raping and not helping women avoid it! She also says it is impossible. Of course it is impossible to stop all or most rapes but if surely it will prevent some. Would you dismiss the prosecution of rapists on the basis that it has proven not to be able to stop all rape?

Aimee // Posted 19 August 2008 at 2:08 pm

This makes me feel so sick, because having sex with someone is such a massive invasion of someone , it’s such a huge leap from kissing and cuddling or holding hands, or flirting to actually penetrating someone that I don’t see how there can ever be any ambiguity. Even if a woman is drunk, even if she’s absolutely leathered, it’s still not the case that it can just ‘happen’ if she doesn’t want it to. I detest this odd prevailing attidude that men cannot be held accountable for their sexually predatory nature, that they are some kind of neanderthal beast who can simply not control their penises when ‘encouraged’ and that it’s up to women to remain vigilant at all times if they don’t want to be had sex with. It makes me sick. It’s disgusting. I would consider it WORSE if the woman is drunk, because that means that the man has seized upon an oppurtunty. It’s even more insideous in my opinion. People with these kind of archaeic attitudes should not be allowed to be responsible for public protection, because they are failing miserably in their jobs if they are still allowing this to happen.

Soirore // Posted 19 August 2008 at 4:36 pm

Sam – Re Consent I’m sorry that my badly written comment earlier caused confusion. I meant simply that once a case gets to court consent has to be proven to dismiss the accusation of rape. This means that it is ridiculous for the defence to question whether the victim consented or not because she is stating she didn’t. The onus should (if the legal system wasn’t steeped in misogyny) be on the accused to prove that he had reason to believe that consent was given.

In a non-sexist world these two situations wouldn’t be so far apart but currently rapists can say “well she didn’t NOT consent convincingly” and this be accepted as their innocence.

I really don’t think anything I said implied that sex is something men always want and women always want to guard. Quite the opposite. I believe that it is clear when a sexual partner is ok with what you are doing and I don’t believe rapists are confused about this. Written consent is ridiculous but who doesn’t ask someone they are having sex with what they want or enjoy?

Sam // Posted 19 August 2008 at 4:39 pm


‘The issue is whether the accused can prove that he gained consent.’

This is completely inconsistent with the doctrine of innocent until proven guilty.

It is the responsibility of the raped to prove that they did not consent, hence the low conviction rate. While you might view this as regrettable, if everyone had to prove that they had gained consent in order for sex not to be considered rape, well, everyone who had ever had sex would be a statutory rapist.

Daniel // Posted 19 August 2008 at 5:42 pm

Soirore, I’m no expert so I imagine what you are saying is probably correct, and the whole idea of challanging the accused to whether they even understand he concept of concent seems a good thing.

I must say though that one of my first thoughts when I read the several comments that bring up men having to prove they gained concent, is that it seemed to be quite close to a situation where the accused is guilty until proven innocent, does someone with a better knowledge of law as me see this as a valid way of seeing it?

I know that legal cases are perhaps as much about the defence proving the innocence of their client than it is the prosecution proving their guilt, but it the idea still doesn’t quite sit right with me.

Anna // Posted 19 August 2008 at 7:00 pm

I don’t see why the onus should be on the victim though since the law specifically says consent must be active..

Fran // Posted 19 August 2008 at 9:12 pm

Sam said: “It is the responsibility of the raped to prove that they did not consent, hence the low conviction rate.”

While I’m not sure I agree with Soirore on this one, I have to point out again that this is not the only reason for the low conviction rate. What we should be focusing on is the indifference of the police and the victim-blaming attitude of the general public (who make up juries), as mentioned in Jess’s original post.

Jamie // Posted 19 August 2008 at 9:39 pm

In this instance consent is used as a defence.

The crime of rape has two parts, the actus reus – sexual intercourse and the mens rea– knowing the victim did not consent or being reckless as to whether the victim was consenting. Consent is used as a defence to this charge where the Actus reus can be proved and is done so by throwing doubt on victim’s character and likelihood of giving consent–e.g. s/he was drunk or had a previous sexual history with the defendant. There is no incompatibility with the doctrine of innocent until proven guilty. It is not men having to prove they “gained” consent, but instead using the fact that they believed they had the victims consent and had a good reason for believing that, as a defence.

Problems arise for the reasons outlined above. Juries are quick to believe rape myths, that women who have previously consented to sex with a defendant will do so again, etc. Also the burden of proof is very high. Beyond all reasonable doubt is the highest threshold and requires much more evidence than on the balance of probabilities– which might lead to more convictions, but would perhaps result in rape being seen as a less grevious crime.

Anne Onne // Posted 19 August 2008 at 10:34 pm

Rhona: Thanks :) Though of course, feel free to repeat it anyway! I’m a great believer of the ‘repeat as many times as necessary for it to sink in’ method, since people love to use the excuse of less than a few hundred people reapeating it to mean that they don’t actually need to examine their privilege or think…

But what you wrote is very true. How much the simple sentiment (with the best of intentions) limits people’s lives, and has the potential easily taken, to allow others to blame the victim for not having done all they possibly could have to prevent the consious actions of another!

Tony, prosecuting may not prevent all rape, but if a serial rapist is in prison or under curfew, he can’t be out there raping women, can he? More seriously, prosecuting rapists doesn’t need to be about preventing all rape. It may also be about demonstrating that we DO take sexual assault seriously. That the experiences of millions of women matter. That there are very real consecuences to harming another person.

Restricting the movements of the criminal and perpetrator because they are a danger to others is NOT the same thing as expecting a potential victim to severely restrict their daily life for their entire life in case something unlikely (stranger rape that they could prevent) happens.

‘What is undersirable is that some men are raping and not helping women avoid it!’ Seriously? so you think it’s desirable that men are raping women?

Also, note rape isn’t something to be ‘avoided’. It isn’t some certain eventuality like death or illness that we try to cheat, which steals up on us if we’re not careful. People choose to go out and rape. Rape is not something that merely happens to (mostly) women, it’s something (mostly) men actively do. The default is NOT being raped. The way society turns rape into a passive thing that ‘just happens’ at best, or that women do to themselves (‘she got herself raped’) shows just how little we as a society value the personal freedoms of the people in society who are most vulnerable (for want of a better word).

I doubt you support mandatory CCTV and speed cameras everywhere, 42 day detention without trial, phone tapping and email records, no matter what terrible crimes they prevent, because dare I say it, most people believe that we have rights to our civil liberties, and that giving them all up in the name of possibly saving our lives might be too much. We may avoid a terrorist attack if we avoid public transport and public spaces, for example, but who would od that, even if they could? There is such a thing as too high a price, and some of the things people demand of women (it’s a demand if they blame women for their rape if they didn’t comply) are too high a price.

You will probably never know even half the things I or any of the other commenters change about our lives to feel safe, or the things we fear, or how this threat clouds the way we interact with the world, because it will never affect you. Remember that when you talk about it being a small price, and what’s a small price to save some people. Because it’s a small price you’ll never have to think about paying. It’s a constant fear you’ll never feel. It’s a decision you’ll never have to make, and there’s no chance you might make the ‘wrong’ choice one day and be blamed if another person chooses to tear your world apart.

I’m not saying that women shouldn’t do whatever it takes to make them feel comfortable. Being a woman, I know the constant safety checks we learn to make, and just how real the threat of stranger rape feels, regardless of the likelihood. I’m not saying women shouldn’t do whatever it takes to make themselves feel safe, if it makes them feel better. Self-defence, sticking with friends when out, it’s all useful. What I am saying is that if 99% of the focus is on this supposed ‘prevention’ (which if it worked would be a very small minority of cases), there is not nearly enough focus on those actually going out of their way to rape others.

After all, it is the act itself that is wrong and harmful. Lack of preventing a crime, even if it is simple, does not mean a criminal is less guilty, or the victim less innocent.

Sam, it’s true, we so far look at people charged with crimes as ‘innocent until proven guilty’. Fair enough. But a big problem with rape is that unlike most crimes, people usually immediately doubt a crime has taken place. They try to find any way of explaining the accusation that will pin blame on the woman. She was drunk. She flirted with the man before. She went to his room. She was his wife. She had slept with him before. She was wearing a short dress. These all give absolutely NO guarantee that consent occurred, but they are used as de facto marks of consent, in court and out, to imply that the woman in question must consented, though they are not evidence of such.

One can believe the victim’s account that a crime has taken place, and be supportive, whilst fulfilling the accused’s right to not being presumed guilty, because the two are separate. It’s then up to them to prove that that particular person comitted the crime. We don’t assume that reported thefts can’t have happened, that a murder or assault wasn’t commited, and we manage it whilst respecting that the particular person charged may not be themselves guilty, and that the evidence will have to prove it was THEM rather than that a crime was committed.

At the very least, people outside of the courtroom should be willing to beleive the victim’s assertion that a rape did occur. The fact that much of the police, and people on the streets are quick to assume a woman is lying unless the man confesses says a lot.

Qubit // Posted 20 August 2008 at 3:26 pm

I don’t think it is right to get someone to prove they had reasonable reason to believe consent as this is often impossible, you can’t ever prove even really strong consent without video or audio recording. However they should at least claim to have a reasonable reason to assume consent. If someone in unconcious on your bed that is not a good reason to assume they will consent to sex even if they have before etc. I am not sure how many cases where there is no claim of a good reason to assume consent get found innocent.

I do believe in the law innocent until proven guilty however this means without constant CCTV footage etc most rape cases are going to involve the accused being found innocent. From what I have heard the trial of a rape case is very hard for the victim so if there isn’t reasonable chance of conviction I can understand it not going to court. It seems wrong to put someone through hell only to have them accused of being a lying and possibly sued for ruining the character of the accused.

I can understand the belief that women should take steps to avoid being raped but that is a lot of restrictions to place on someone.

You are basically telling a woman that she should never be alone (or in a group less than around 4 women) in the presence of a man. She should never walk home alone. She should never drink. She should never have a man around her house especially as friends. She should never have a boyfriend. She shouldn’t walk home alone esepcially at night. She should never accept a lift even from someone she knows. She shouldn’t wait at the bus stop by herself. She shouldn’t get a taxi alone. She shouldn’t go visit a male friend. She shouldn’t be alone with her male coworkers even in a business sense. She shouldn’t let a male companion walk her home. She shouldn’t get home any way that means she is by herself even for a few seconds (ie walking down the road from the bus stop). She should be vary wary when driving alone at night and preferable not do it. She shouldn’t go into carparks alone at night. She should never have sex (there have been cases of men inviting friends against the woman’s wishes). She should never listen to the radio or anything that will distract her attention while out. And loads of similar things.

I am already careful and thankfully nothing has happened to me. However if I am walking alone somewhere after dark I do feel incredibly wary and guilty for being out. I know then I will have very little sympathy if I am attacked. I know it is something I shouldn’t do. Yes people should be responsible for their own actions but is it fair to place such restrictions on somebody.

I’d say the only case of those I listed where a woman might be excused her behaviour is if she was alone with a male coworking in a strictly business sense but I have my doubts about that.

Have Your say

To comment, you must be registered with The F-Word. Not a member? Register. Already a member? Use the sign in button below

Sign in to the F-Word

Further Reading

Has The F-Word whet your appetite? Check out our Resources section, for listings of feminist blogs, campaigns, feminist networks in the UK, mailing lists, international and national websites and charities of interest.

Write for us!

Got something to say? Something to review? News to discuss? Well we want to hear from you! Click here for more info

  • The F-Word on Twitter
  • The F-Word on Facebook
  • Our XML Feeds