April 11, 2007

Sarah Churchwell: The law on rape remains asinine and archaic

Writing about web page http://comment.independent.co.uk/commentators/article2439494.ece

Dr. Sarah Churchwell has kindly allowed us to reproduce her commentary, ‘The law on rape remains asinine and archaic’, for the benefit of our delegates. It was published on 11th April 2007 in The Independent and we thank her for allowing us to post it here.

The law on rape remains asinine and archaic

In both the UK and the US, the law continues to sympathise with the defendant and slander the victim

One of the most grotesque aspects of rape law on both sides of the Atlantic is how fossilised it remains. Last week a United States congressman debating a bill that would deny paternity rights to rapists whose victims conceive a child quoted Sir Matthew Hale, England’s Chief Justice in the 1670s, who opined: “Rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused.”

Charged with insensitivity, Congressman Vallario has continued to defend his archaism as a “history lesson”. For victims of rape, history is a nightmare from which society needs to awake; far too many lawmakers appear to have been snoozing peacefully for centuries. (Perhaps this has something to do with the fact that women make up 20 per cent of the UK Commons and 16 per cent of US Congress?)

Rape law in the United States and the United Kingdom continues disproportionately to sympathise with the defendant and to blame, slander, or otherwise discredit the victim. This week’s latest gem, courtesy of the Government’s drug advisers, advises women to avoid going alone to social events in order to protect themselves against rape.

Clearly these people have never seen The Accused : if you’re a woman, there isn’t necessarily safety in numbers. A woman going to a party alone: now there’s some seriously reckless behaviour. If she happens to walk on a street in order to get home, maybe we can call her a streetwalker and absolve ourselves of any collective responsibility for her safety whatsoever (I am thinking in particular of the columnist who wrote after the Ipswich murders that strangulation should be regarded as an “occupational hazard” for these “disgusting, drug-addled street whores”).

These latest recommendations come in the wake of reviews about the role of drink and drugs in prosecuting date rape. Recently, the senior jurist Sir Igor Judge was quoted as explaining that if a woman is incapable of giving consent, then sexual intercourse with her amounts to rape; if she is capable of giving consent and does, sex with her is not rape.

No doubt this point seems uncontroversial, but it raises a big question about the notion of “consent” as some immutable, irreversible permission. Even if she consented when they “started having sex” (whatever that means: kissing? fondling? penetration?) isn’t it possible that before they “finished having sex” (before which one has finished having sex? How do we define finished? ejaculation? orgasm? loss of interest?) she might change her mind in medias res?

The law would seem not to think so. But what if she changes her mind because he started smacking her? Because he wanted to indulge in behaviour that she found uncomfortable, unsavoury, or frightening? If he continues, when she has told him to stop, then surely there is a strong moral argument for saying that he raped her, despite her having initially “given consent”.

But for the moment let’s pretend that a woman “consenting” to sex is like signing up for satellite television, and that she is bound by her decision for a period to be determined by the other party in the transaction. The real problem is what Sir Igor Judge revealed about how consent is legally determined: “If, through drink, or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse, she is not consenting,” he clarified. “Subject to questions about the defendant’s state of mind, if the intercourse takes place this would be rape.”

Subject to questions about the defendant’s state of mind – not the accuser’s. British and American rape law, uniquely in criminal cases, hinge on the asserted state of mind of the alleged criminal, rather than on the perceptions of the alleged victim.

If she has lost her capacity for consent (i.e., she is semi-conscious or unconscious), and he takes that as a lucky break and has sex with her, then the court sets out to determine what his state of mind was. If he could “reasonably” have concluded that consent was given, then he is legally not guilty of rape. Instead of determining whether a defendant committed a crime, the court must determine whether the defendant believes that he committed a crime. Granted that any case of date rape is going to devolve into her word against his (assuming heterosexual rape; there is still precious little attention paid to the very real crime of homosexual rape), the question is not solved by making him the arbiter of her state of mind.

In 1977, according to one report, about a third of all rape cases in the UK ended in conviction. Thirty years later, the conviction rate has dropped to 5.31 per cent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.

A few months ago, British audiences were treated to the spectacle of Michael Portillo, Jeffrey Archer and Stan Collymore pronouncing on a mock rape trial on the BBC’s The Verdict . Portillo asked why a woman would go to a man’s hotel room if she didn’t intend to have sex with him. As if that weren’t asinine enough, Collymore insisted that footballers don’t “need” to rape because they can have sex with any woman they want. The woman’s consent evidently remains a foregone conclusion: obviously, Sir Matthew Hale knew whereof he spoke.

The author is senior lecturer in American Studies at the University of East Anglia

A NOTE ON EDITORIAL POLICY: ‘Women Writing Rape: Literary and Theoretical Narratives of Sexual Violence’ was set up to discuss literary and theoretical narratives of rape around the world (not just in the UK) and we are looking for responses that comment on rape narratives and their literary constructions or theoretical trajectories. Some of the comments being made here are not focussing on the issues demanded by the blog and any further declamatory comments after no. 25 will be deleted.

Z.B.


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  1. The discussion about consent here is again very important and I am really very glad that Sarah Churchwell interrogates how far consent is binding mid-act. It’s also interesting that these prejudiced attitudes come through in the BBC programme, The Verdict. Did anybody see this? I missed it, but I found a feature on BBC Radio Four’s Women’s Hour about it at this link: http://www.bbc.co.uk/radio4/womanshour/02/2006_50_fri.shtml

    11 Apr 2007, 16:09

  2. Rape law in the United States and the United Kingdom continues disproportionately to sympathise with the defendant and to blame, slander, or otherwise discredit the victim. This week’s latest gem, courtesy of the Government’s drug advisers, advises women to avoid going alone to social events in order to protect themselves against rape

    Wait a second, “this week’s latest gem” is sound advice? As a grown man, I will avoid going to certain areas I know are very dangerous, at certain times of the day. It’s about knowing the risks. Knowing the risks and going there doesn’t mean I am at fault for being attacked or stabbed. But some common sense please. If you’re going to a social where you are going to get very drunk and, possibly, influenced by drugs, then make sure you go with friends.

    If she has lost her capacity for consent (i.e., she is semi-conscious or unconscious), and he takes that as a lucky break and has sex with her, then the court sets out to determine what his state of mind was. If he could “reasonably” have concluded that consent was given, then he is legally not guilty of rape. Instead of determining whether a defendant committed a crime, the court must determine whether the defendant believes that he committed a crime. Granted that any case of date rape is going to devolve into her word against his (assuming heterosexual rape; there is still precious little attention paid to the very real crime of homosexual rape), the question is not solved by making him the arbiter of her state of mind.

    If a girl is drunk and seemingly consents to intercourse, a man can reasonably believe that she is consenting. If she wakes up and suddenly decides she would not have slept with him were she sober and cries rape, the man is suddenly a rapist? The writer scoffs at the usage of the word “reasonable”, but this is the basis for much of English Law. What one should or could reasonably believe, or reasonably expect, or be reasonably expected to do. The state of mind of the defendent (defending [b]allegations[/b] until they are proven beyond a reasonable doubt) is important. It does not mean that in every rape case the judge will look at the case and politely ask the defendant how he should make his ruling.

    I especially dislike that statistic thrown in towards the end. It is automatically assumed that because there is a low conviction rate for rape, that the law must be failing rape victims. Or that the police/legal system is misogynistic. It is rarely suggested by such writers that the police need evidence to bring a case to trial and that if that evidence is not sufficient or does not exist, then the police nor the legal system can do much about it because it remains an unsupported accusation. It never seems to clarify whether or not, when talking about convictions, they are talking about all convictions related to the accusations or convictions only for the crime of rape. It is quite possible that, if there is a lack of evidence, but strong enough evidence to convict someone of, say, Assault or some such, that the Prosecution will seek to charge the defendant with that. Plea bargains also come into the picture.

    Either way, I really dislike this sort of article. I feel that changes in legislation regarding rape need to occur in order to hike up the sentences awarded in rape cases but as the rape laws stand, they generally favour women (in heterosexual instances), with statuatory rape laws actually often favouring female defendents over male defendents accused of the same crime.

    Women never deserve rape, but they certainly should not put themselves in a position where it becomes far easier for a rapist to take advantage of them (ie extreme alcohol-consumption, deliberate usage of drugs) any more than I should walk down a dangerous street using my expensive mobile phone and counting fifty pound notes.

    11 Apr 2007, 20:03

  3. Hmmm, where to start?

    I especially dislike that statistic thrown in towards the end.

    Hamid’s above opinion piece seems rather short of statistics, supporting evidence or anything other than his own preconceptions. I cannot see one fact in the above response. To dismiss the mentioned statistic (below) in such a casual way is callousness of the worst sort.

    In 1977, according to one report, about a third of all rape cases in the UK ended in conviction. Thirty years later, the conviction rate has dropped to 5.31 per cent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.

    And what about this?

    If a girl is drunk and seemingly consents to intercourse, a man can reasonably believe that she is consenting. If she wakes up and suddenly decides she would not have slept with him were she sober and cries rape, the man is suddenly a rapist?

    Why on earth would Hamid think it is acceptable for a man to sleep with someone when it is unclear whether she is able to make a proper decision? It is completely different to walk down a dangerous street waving money around than for a woman to attend a social event alone. For starters, there is a stark difference between Hamid’s possessions being taken and the violation of a woman’s body. Does this juxtaposition suggest that Hamid does see women’s bodies as something to be owned?

    11 Apr 2007, 20:34

  4. I cannot see one fact in the above response. To dismiss the mentioned statistic (below) in such a casual way is callousness of the worst sort.

    The statistic is often used in order to suggest an institutional bias against rape victims. I don’t see that from the statistic.

    Why on earth would Hamid think it is acceptable for a man to sleep with someone when it is unclear whether she is able to make a proper decision?

    If it is unreasonable to believe that she is capable of consent, then it would be illegal to sleep with the woman and I would not find that acceptable. I did not state otherwise. What I have said is that there is a difference between rape and a man who may well be under the influence of alcohol engaging in consensual sex with a woman who may also be under the influence of alcohol.

    It is completely different to walk down a dangerous street waving money around than for a woman to attend a social event alone.

    If you believe that you will end up drinking yourself silly, then it is wise to take precautions. Once again, if I walked around a dangerous street holding my money, I’m within my rights to do so and I am not at all legally to blame if someone decides to knife me. I will not, however, have been doing myself any favours.

    For starters, there is a stark difference between Hamid’s possessions being taken and the violation of a woman’s body.

    Of course there is a difference. Just as there is a difference between murder and rape. And murder/manslaughter or, at the very least, assault was meant to be implied.

    For starters, there is a stark difference between Hamid’s possessions being taken and the violation of a woman’s body.

    Yes there is. And once again, harm and/or death should have been implied in the analogy.

    Does this juxtaposition suggest that Hamid does see women’s bodies as something to be owned?

    No it does not. Wonderful fallacy there by the way. And I’m loving your demagoguery. There is no need to address an audience when directly responding to one of my points.

    I have stated my opinion in a belief in common sense. If I am walking into a dangerous area, I will behave much more cautiously. If I do not behave quite so cautiously, am I at legal or moral fault for having not done so? No, of course not. Nor is a woman who attends a party and has a drink. But dismissing advice for women attending parties in such a manner is clearly reactionary. If we want to talk about exact juxtapositions, we can refer to Warwick and its reactions as an institution when rape occured on campus. Was it stupid to advise females on campus to be careful when walking about campus at night, especially after union events? Was it a ‘gem’ to advise females on campus to consider walking with company on campus at night? Of course not.

    The same is true for advice on ‘social events’. I don’t know about yourself, but I did not read ‘social events’ as implying an hour at the afternoon village fete. I read it as I beleieve it was meant to be implied: parties, club events etc. Given the context, it is wise advice, especially given the apparent estimates on the number of women raped in the UK, to go with someone else.

    12 Apr 2007, 00:17

  5. An interesting discussion has started here. What is so fascinating about is the way in which different narratives about women and rape are being set up. On the one hand, Sarah Churchwell tells a story of how the onus is put on women to defend themselves from rape by modifying their behaviour, while Hamid imagines a narrative where after a casual encounter with a woman, the man wakes up to discover that he is being called a rapist. I noted Greer’s belief in Germaine Greer on Rape Laws that rape is a crime with which men are preoccupied and this anxiety seems to concern ‘false’ rape stories. There is no denying that sometimes false rape accusations are made, but this story has become a master narrative that denies the painful stories of women who no longer feel able to report their experiences to the authorities.

    Hamid, your suggestion that women should be sensible about where they go avoiding dangerous areas is fine, but you have to realize that rape does not only happen in dingy back alleys. Besides this I think that you misunderstand the context of the comment made by Congressman Vallerio, who was not talking about drunken, drugged up students but any ordinary woman.

    However, in thinking about drunken or scantily clad victims of rape, your view seems to echo those of a large section of society, since in 2005, BBC News reported that a poll by Amnesty International found that a third of people in Britain believe that flirtatious women bring rape on themselves and at least 25% of people thought that if the woman was drunk or wearing revealing clothing that she was at least partially to blame. This strange culture of blame takes responsibility from the rapist and tells a story of woman’s stupidity and fickleness. You write:

    Women never deserve rape, but they certainly should not put themselves in a position where it becomes far easier for a rapist to take advantage of them (ie extreme alcohol-consumption, deliberate usage of drugs) any more than I should walk down a dangerous street using my expensive mobile phone and counting fifty pound notes.

    Hamid I am glad to see that you realize that no woman deserves rape, but I wonder why you can’t see, in the words of Joanna Perry, policy manager at Victim Support, that because, ‘rape is an appalling crime and has a devastating effect on victims and those close to them, […] nobody asks to be raped’. At least, if you were mugged, no one would accuse you of “asking for it” even if you were flashing your mobile phone around. As Greer states: ‘The punishment for cutting your nose off would be less than the punishment for rape, but then you wouldn’t be suspected of having consented to having your nose cut off’.

    12 Apr 2007, 08:56

  6. Hamid, overall you seem to feel that rape laws favour women, but this is simply untrue. Not many women report the crime and when cases do reach court, only six per cent of reported rapes result in successful convictions. You say that the statistic doesn’t prove anything and that if rape cases are not convicted it is due to insufficient evidence. You seem to suspect that some of the percentage of rape cases not convicted are false accusations and it doesn’t include lesser charges such as assault (where there is not enough evidence to charge with rape) or plea bargains. However, consider this more detailed account of the Crown Prosecution Service’s Report from a Guardian article :

    Rape is an everyday occurrence. Research published yesterday by the Crown Prosecution Service (CPS) and Home Office Inspectorates estimates that of the 50,000 rapes thought to occur each year, between 75% and 95% are never reported. And almost a third of reported cases recorded by police as “no crime” should have been properly investigated as rape.

    It is obvious from these figures that women do not feel that they can report rapes, because when they do, they are not taken seriously but are humiliated and subject to intense interrogation.

    12 Apr 2007, 08:57

  7. hile Hamid imagines a narrative where after a casual encounter with a woman, the man wakes up to discover that he is being called a rapist.

    Come on Zoe, I’m not claiming that this is the average case for rape. Sarah Churchwell was criticising the pronouncement of a Judge and I was defending that Judge on the very specific set of circumstances. I was not applying it to all or even many rape or alleged rape cases.

    ut you have to realize that rape does not only happen in dingy back alleys.

    Absolutely not. And as you have probably done, I have checked the government statistics, and the majority of rape does not take place in dingy back alleys, but at home. What I am saying, however, is that in certain circumstances it is possible for women to protect themselves with extra precaution. I am not saying that they need to do it or that they will [b]deserve[/b] rape should they not take those precautions. I am simply saying that to me it is a matter of common sense to do so.

    Congressman Vallerio, who was not talking about drunken, drugged up students but any ordinary woman.

    Quite possibly. But lacking a context, I’ll have to place it into a context and within the context of overall British youth society, the comments would make sense and the majority of women I know actually operate on that basis, as do quite a few men. If my best mate is going to get plastered, he’ll make sure I’m there with him to make sure he doesn’t drive. My female friends and sisters will not go to a party, even if not drinking, without having friends there.

    However, in thinking about drunken or scantily clad victims of rape, your view seems to echo those of a large section of society, since in 2005, BBC News reported that a poll by Amnesty International found that a third of people in Britain believe that flirtatious women bring rape on themselves

    I am not saying that about all or any specified portion of rape or alleged rape victims. I do not believe that even flirtatious women “bring rape on”. If a woman does not consent, then she does not consent and it is rape. I do believe that being overly-flirtatious does not help. Once again, we’re not talking about merit here, but about taking reasonable precautions with yourself. If she gets raped does she deserve it? Of course not. Is it reasonable to expect to be raped? Of course not. Did she do herself any favours by flirting? No.

    25% of people thought that if the woman was drunk or wearing revealing clothing that she was at least partially to blame.

    I’m one of the 75% who believe otherwise. But, the 25% are probably not saying that the women in these particular circumstances [b]deserve[/b] rape, but they have [b]partial[/b] blame for getting drunk. It’d be interesting to see if the original poll distinguished between those who believe that some blame should be held for being drunks, and those who believe blame should be held by those wearing ‘revealing clothing’.

    12 Apr 2007, 10:15

  8. ‘rape is an appalling crime and has a devastating effect on victims and those close to them, […] nobody asks to be raped’. At least, if you were mugged, no one would accuse you of “asking for it”

    What makes you think that I can’t see that? I’m not quite sure how you could interpret that from my words when I’ve been very careful to make sure that that is absolutely not the case. And yes, I have been mugged once before, when I was younger. A group of people stole my bike. And when I reported it to the police, they strongly implied that I should have been far more careful when using such a bike in such an area.

    overall you seem to feel that rape laws favour women, but this is simply untrue. Not many women report the crime and when cases do reach court, only six per cent of reported rapes result in successful convictions.

    Ok, here we’re getting to the crux of the related issue. At the reporting stage “not many women report the crime” or the alleged crime. So of those that do, all cases have sufficient evidence to put a person in prison? Enough to conform to the standard of proof?

    You say that the statistic doesn’t prove anything and that if rape cases are not convicted it is due to insufficient evidence.

    I say that that is one possible reason for it. Listen, I have great faith in the English legal system. You may find that naive, but the English Legal System is pretty damned wonderful. There are areas to improve, but on the whole you will find that Judges are a reasonable bunch of chaps. They’re not idiots plucked from the streets. Now, when it comes to a Jury, it is a bit of a grey area, but we can talk more on that later.

    Basically, to convict someone of a crime you have to have a certain standard of evidence. You must be sure, beyond a reasonable doubt (as hackneyed as the expression has become – thank you America!) whether you’re a judge or a juror. And that can require very strong evidence. Now, especially in this society, men and women frequently engage in consensual sex with multiple partners. It is not unusual to find men and women engaging in such casual sex. So when a case comes to court, there has to be a little more than “our evidence amounts to the fact that she was penetrated”. Why? Because although you might believe the woman and although the woman might very well be telling the truth, there is not sufficient evidence.

    Once again, this will not be the case for every trial. This is but one example of why cases might not reach a rape conviction.

    . And almost a third of reported cases recorded by police as “no crime” should have been properly investigated as rape.

    Which is understandable. Precisely because of what you next say:

    It is obvious from these figures that women do not feel that they can report rapes, because when they do, they are not taken seriously but are humiliated and subject to intense interrogation.

    I wouldn’t say that “they are not taken seriously”. But I do believe that they often feel humiliated with what has happened. And they need to be subjected to questioning. If there is not sufficient evidence and/or testimony, then the police nor the CPS can do anything.

    It is a shame that this is the case. But what I see from the reaction to such statistics is an implication that convictions [b]must[/b] be higher to give the veneer of justice. What the hell? The legal system in this country should not be held hostage to statistics. Rape cases resulting in no conviction, should be investigated and data on the individual merit of a sample set of cases should be used rather than mindlessly regurgitating these statistics.

    12 Apr 2007, 10:15

  9. Oh and by the way I have seen the Accused. And I thought it was quite a powerful film and I’m glad that you’ve brought it up. There is no absolute safety in numbers. And if you watch that film you should realise that had it not been for the witness, the second case would have failed, as had the first case. Why? Because of lack of evidence. The woman had consumed plenty of alcohol, had taken drugs, had an alleged history of promiscuity, and had been outrageously flirtatious. Does that mean she deserved to be gang-raped? Absolutely not. But she did herself no favours and would not have won any of her cases had it not been for that witness although it is odd that the physical evidence was somewhat ignored.

    Although we knew that she was raped, it was because we witnessed the rape. The court does not have that luxury (well unless it’s recorded on tape or on mobile phone, like recent British cases) and has to go on the evidence. And it’s a bloody difficult thing to prove without witnesses and physical damage to a woman, which is the nature of the crime. But if we started jailing people on the basis of ‘slightly beyond an accusation’, then we encounter more, severe problems.

    12 Apr 2007, 10:20

  10. Hamid,

    There seems to be some confusion about what I did or did not say here. You say that I misread what your telling of the ‘false’ rape story and that you don’t see this as representing the majority of rape cases. Fair enough, but you did tell this story rather than the narrative that represents the majority of rape stories where women either tell no one or apply to the authorities which promptly fail to do anything about it.

    I’m glad that you realise that most rapes don’t take place in suspect or obviously dangerous areas. Don’t you think that the authorities should be policing the rapists rather than women’s freedom? It’s fine that you have put the congressman’s comments into context, as long as you realise that you are talking at cross-purposes with Churchwell, because the congressman is not talking about a drunken druggie but any woman.

    You say that you don’t think that women deserve to be raped even if drunk or scantily clad, but if you say that a woman is partially to blame (doesn’t do herself any favours/doesn’t help etc.) then you are saying that exactly. It is this that made me think that you viewed certain kinds of women as “asking for it”. If this does not represent how you feel, then all the better. It does though seem implicit in what you were saying.

    I’m also sorry that you were mugged. That is not a nice experience. And I am surprised that the police reacted in the way they did. Unfortunately what you experienced is a lesser version of what rape victims experience every day.

    You talk a little about the legal problems and these are difficult. You mention the problem of needing evidence and you are right that evidence is needed to prove assaults. But many women feel too ashamed and intimidated by the police to provide forensic evidence in time for it to be useful. Julie Bindel writes the following:

    Police deal with rape within a culture of suspicion. Despite feminists heaping praise on the police since they improved their approach to victims from the bad old days of the 70s and 80s, response to rape is still patchy and, at times, unacceptable. A Channel 4 documentary, screened last year, portrayed some officers as lazy and sexist and an allegation of rape by a prostitute as being treated lightly.

    So without proper evidence, most rape cases hinge on the testimony of the victim versus the testimony of the defendant. And the problem with this is that many jurors refuse to convct the defendent on the evidence of the victim as has been reported by the BBC (Why do courts fail rape victims ). Many cases simply depend upon the performances of the witnesses on the day and the pressure on the victim is often huge. In addition, lawyers are now able to question women about their past sex lives. Julie Bindel states:

    Not only are women who report rape routinely viewed as liars; it would seem that once a woman becomes sexually active she is no longer allowed to say “no” on subsequent occasions. Despite legislation introduced in 1999 to restrict defence barristers from raising a complainant’s sexual history in court, judges all too often allow them to get away with it. I have witnessed defence lawyers badgering women with questions about their sexual activity while judges and prosecutors do nothing to stop them.

    I recommend reading Julie Bindel’s article, Why is Rape so Easy to Get Away With? . It paints a rather bleak picture of police attention to crimes of sexual violence and the English legal system’s efforts to convict rapists.

    12 Apr 2007, 11:10

  11. Also if you have seen The Accused then you will know that it is a campaigning film that shows the injustice of the legal system although you don’t seem to see it this way.

    12 Apr 2007, 11:12

  12. Doctor Joe

    Everybody is agreed the current rape laws discriminate against the victim but nobody seems to have any ideas on how to improve it without stating “guilty until proven innocent”. And by the way, if ANY of you are seriously advocating that drunk sex is a crime, who would be left to lock the jail?

    12 Apr 2007, 11:35

  13. nick

    Dr Churchwell’s article provides a fascinating discourse regarding societal nad legal (mis)conceptions of rape. The article is interesting since it makes some fundamental assumptions as to the nature of rape.

    Firstly, the lens through which the article discusses sexual encounters appears to be one in which the female is the passive recipient of male sexual advances. It represents the male role as the initiator of requests for sex, leaving the female to either consent to his advances or to turn him down. In doing this, the article paints the picture of a female acting as gatekeeper and final arbiter as to whether the sex that men demand actually takes place or not. This is a dangerous place to start since it takes responsibility for whether sex occurs or not away from the male partner (or indeed the ‘partnership’), leaving the decision firmly in the hands of the female.

    Secondly, the article paints the victim as female and the perpetrator as male. Again this is a dangerous place to start since it totally fails to recognise other forms of rape. Rape is not simply a male-on-female crime. Although the article recognises that rape can be ‘homosexual’, by which I presume it is recognising that it is also a male-on-male crime, it does not discuss rape as a female-on-male crime or indeed a female-on-female crime. Instead, and this ties up with the first point I made, the lens through which rape is viewed is one in which the male is the sexual aggressor, the woman as the victim.

    One has to question why that is? Perhaps the article takes a very narrow definition of rape (in which the penis of the rapist penetrates the victim)? Perhaps societal taboos prevent the author from representing the female as an initiator of sexual encounters or indeed sexually aggressive? I found it very interesting that the article starts by berating the ‘grotesque’ rape laws in Britain and United States describing them as being ‘fossilised’ before using Victorian representations of the roles of men and women in sexual encounters.

    12 Apr 2007, 12:07

  14. Hamid- Yes I confess to demagoguery. I suppose I wanted to use such colourful language because I wanted to bring attention to the gravity of the subject we’re discussing. As for your point about the situation at Warwick when there had been rapes on campus, I agree, but we must be careful when discussing this area in generality.

    I think when discussing this topic (and I’ m making a general point not addressing Hamid’s responses) it is of the utmost importantance to bear in mind just how horrible the crime we’re talking about is.

    12 Apr 2007, 12:42

  15. Don’t you think that the authorities should be policing the rapists rather than women’s freedom?

    Zoe, here is the problem. “Policing the rapists”. It’s important for you to understand that until someone is convicted of rape, then it is an allegation of rape. It does not mean that the person accused is innocent of a crime, but it means that he has not been proven guilty of a crime. Saying “policing the rapists” suggests an assumption that the person is guilty based on a prima facie acceptance of the accusation.

    It is difficult to “Police a rapist”. Why? Well just as with any crime, you can take preventative measures, but someone is not a rapist until he rapes. He is not an attempted rapist until he attempts. I’m not quite sure what more the police could do except asking women to take more precautions when they can, for their own safety. Again, and I’ve repeated this far too often, it does not imply that a victim is to blame if she is raped after having not taken certain precautions because it is perfectly within her rights to act and not expect to forced into intercourse as a result.

    There is no real way to “police the rapists” except by upping public security, CCTV coverage, public information campaigns and asking women to be a bit more careful.


    It’s fine that you have put the congressman’s comments into context, as long as you realise that you are talking at cross-purposes with Churchwell, because the congressman is not talking about a drunken druggie but any woman.

    If it is the case that the congressman’s comments apply to all women for all social occasions, then common sense suggests that his advice is inappropriate.

    You say that you don’t think that women deserve to be raped even if drunk or scantily clad, but if you say that a woman is partially to blame (doesn’t do herself any favours/doesn’t help etc.)

    I am not saying she is partially to blame. I am saying she doesn’t help herself. When I say blame, I mean moral culpability. There is no moral culpability on her part.

    then you are saying that exactly.

    No, I am not. I am saying that – and this is, of course an absolutely extreme example – a woman decided to get naked and demand sex with a man, present herself for him and then just before (or even during) penetration she says “stop I don’t want to!” then it will still be rape for the man to continue. This is according to the English law. And even in this utterly extreme circumstance, she will not be culpable morally for a man choosing to penetrate her against her wishes.

    Now we have less extreme examples. A woman dresses in a microskirt and tube top, attends a party alone, gets drunk and is very flirtatious at night and after the party/clubbing clumsily begins walking to find a taxi. One of the men she had previously been flirting, perhaps kissing and fondling with decides to follow her and rape her. Is she at moral fault? Absolutely not. And again, absolutely not. Would she have been raped if she hadn’t have been drunk, alone and flirtatious? Possibily. If she had a female friend or a male friend with her, she might well have not been raped. Is this implying she is to blame for the attack? No. Is it implying that if one is to take reasonable precautions one will always avoid being raped? No.

    It is this that made me think that you viewed certain kinds of women as “asking for it”.

    A woman is not asking for it unless she consents. And if she does it is not rape.

    12 Apr 2007, 13:29

  16. If this does not represent how you feel, then all the better. It does though seem implicit in what you were saying.

    I think I have substantially clarified my points.


    I’m also sorry that you were mugged. That is not a nice experience. And I am surprised that the police reacted in the way they did. Unfortunately what you experienced is a lesser version of what rape victims experience every day.

    What I experienced wasn’t nearly as bad as rape, of course. But let’s say that I had more powerfully resisted those people trying to mug me. In fact, let’s take the bicycle out of the equation and say that I was threatened that if I did not hop, skip and jump for a gang of people, they would stab me. Let’s say I refused and I was horrifically beaten and stabbed and ended up hospitaliced in an ICU. I would not at all be to blame for either exercising my freedom to walk on public streets. Nor will I be at fault for being stabbed. But I will ask myself the question “If I had not been walking in a dangerous area at such a time, would I have been able to avoid this?”

    OK that seems to be another extreme example. But take the recent London stabbings. I am willing to wager that more parents are taking more precautions with their teenagers as a result.

    o without proper evidence, most rape cases hinge on the testimony of the victim versus the testimony of the defendant. And the problem with this is that many jurors refuse to convct the defendent on the evidence of the victim as has been reported by the BBC

    Which is absolutely right. It is a shame that that is the case, but imagine another example. If you were a juror and you had a case where Person X was accused by Person Y of murdering someone. There is no body, the police have a rough idea of where it happened but cannot find any evidence. Person X denies it, but acknowledges knowing Person Y. Person Y says he’s horrifically murdered someone.

    What can a jury do. They are instructed by the judge as to the standard of proof. He said, she said is not (always) enough. If I was a juror and I had a case where there was little to no evidence of rape aside from a testimony, I would not be able to vote to convict a man. This doesn’t mean that I’m a misogynistic monster.

    Also if you have seen The Accused then you will know that it is a campaigning film that shows the injustice of the legal system although you don’t seem to see it this way.

    It might well be the case. The legal system has to operate in a certain way. You can’t have judges saying “Well you know what, there’s no evidence, but she sounds convincing. I sentence the accused to 8 years in prison.” It is a shame that some or many cases do not stand up to the standard of proof, if they are genuine. Taking the example of “The Accused”, if she had not had that witness, she would have lost the case. And, unfortunately, that is the type of injustice that is the rare exception of the justice system and is necessary to avoid even greater injustice. If cases were decided on the basis of the sympathies of the judge or the burden of proof were placed upon the defence you would find as many innocent being imprisoned as guilty.

    12 Apr 2007, 13:29

  17. Doctor Joe – see Germaine Greer’s article for one solutaion: http://blogs.warwick.ac.uk/women-writing-rape/entry/germaine_greer_on/

    nick – You misrepresent Churchwell’s article. Churchwell is discussing the issue of female consent so of course she will be talking about women’s decisions about whether to say yes or no and she doesn’t describe women as passive, but she does say that saying “yes” to sex in which circumstances may change radically ties a woman in to acceptance and passivity.

    Churchwell is aware that there are other kinds of rape beyond heterosexual assaults but this article is on women’s experience of rape in particular. You also might like to consider what Germaine Greer writes in her article Rape

    That is what rape is: intercourse with a woman against her will. Now, because of some more than usually muddled thinking on the part of legislators, men too may be raped. The old crime of forcible buggery has become male rape – as if women, too, could not be forcibly buggered. Once upon a time we knew the difference between the orifices involved, and the possible consequences, but that was then and this is now. Judges still give far heavier sentences for attempted male rape than they do for fully consummated female rape. The new nomenclature has not produced any new thinking about the nature and gravity of sexual assault. Or the inequality of men and women before the law.

    13 Apr 2007, 14:52

  18. James

    I haven’t the time to get started on this debate, but I thought the following might amuse/appall you all: in New Zealand, crimes are mostly codified in the Crimes Act 1961, rather than being found in the common law. “Rape” was placed under the heading of public order and morality, not under the section “Offences Against the Person”.

    Other than murder, is there any offence that is MORE “against the person”?

    13 Apr 2007, 17:12

  19. James – Many crimes in England are also Statutory, as they are in the rest of the Commonwealth, so I’m not sure why you imply that crimes in England are defined purely by Common Law.

    cf The Dangerous Dogs Act 1991 for much laughter.

    I’d imagine that Offences against the person generally involve violent crimes, whereas rape is not always violent but is always immoral. You’d probably find most rapes under the Act being covered under both sections (ie the Crime of Rape as well as Assault & Battery or some such).

    The really sexist aspect of that is, of course, that rape was solely defined as a man inserting his penis into a woman without consent.

    13 Apr 2007, 17:30

  20. James

    1. It’s off the topic, but of course I know that there are many statutory crimes in the UK (!!). Hamid, you do have a sneaky habit of setting up straw people to attack. I certainly didn’t “imply that crimes in England are defined purely by Common Law” But the criminal law in England was originally developed through the common law (some say it was better in those days) and the law commission has never gotten very far with its attempts at codification. Certainly there is no equivalent of the NZ Crimes Act 1961, though that isn’t a complete code by any means either.

    2. Let me assist your ‘imaginings’ with some information. NZ in 1961 was amazingly conservative in terms of public opinion. There were separate showings for men and women for the film Ulysseys! The authorities tried to ban Lolita and other such raunchy literature. Even as late as the mid-70s, Germaine Greer was being arrested for saying ‘bullshit’ because of the fear of feminism. At school balls, gaps between partners were policed. Male homosexual acts were illegal but not female (lesbians were not thought to exist). There were almost no women lawyers and certainly no women judges. I could go on. It was in that environment that ‘rape’ was classified as it was.

    3. All that said, Hamid does actually make some good points on the general thread. The essence of the problem is that, by its nature, there will be few witnesses to the crime of rape, and often no physical evidence either (if the woman gave in through fear, without a physical struggle.

    4. A different film with a shocking rape scene is Deliverance. What would have happened had the city boys gone to the law?

    14 Apr 2007, 08:43

  21. “In 1977, according to one report, about a third of all rape cases in the UK ended in conviction. Thirty years later, the conviction rate has dropped to 5.31 per cent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.”

    This is a misleading statistic. In 1977 the legal and social definition of rape was different from what it is today. Then, complaints were essentially based on the traditional concept of a woman being attacked whilst walking alone. (Remember the common law rule protecting a husband from being guilty of raping his wife was not disbanded until 1992).

    Through the 1980s and 1990s the concept of ‘acquaintance rape’ develped and it is these, immensely difficult to prove, offences that have been the primary reason for low conviction rates.

    14 Apr 2007, 15:31

  22. “Rape law in the United States and the United Kingdom continues disproportionately to sympathise with the defendant and to blame, slander, or otherwise discredit the victim”

    It is in the nature of an adversarial system of law that this happens. This comment applies to all Defendants in Common Law jurisdictions, not just those accused of rape. It would be interesting to see comparisons with the Continental legal systems and whether or not these are better than ours at handling rape cases. However I don’t believe the common law was developed in order to oppress women any more than the Civilian systems of our European neighbours.

    “Recently, the senior jurist Sir Igor Judge was quoted as explaining that if a woman is incapable of giving consent, then sexual intercourse with her amounts to rape; if she is capable of giving consent and does, sex with her is not rape….isn’t it possible that before they “finished having sex” (before which one has finished having sex?”

    A women having to consent to sex rather than not refuse is already established in our law. The difficulty with drink and drugs is where the woman is considered to have consented on the basis of intoxication when she wouldn’t otherwise have done so. That is still consent.

    I am aware of convictions for rape, (I can’t source these off-hand) where the man has failed to discontinue sex when he has become aware the woman has changed her mind. Our law recognises that consent is continuous and can be withdrawn at anytime. It is not a contract. ‘Consent’ given because of threats or acts of violence is not, as far as the law is concerned, consent.

    “Subject to questions about the defendant’s state of mind – not the accuser’s. British and American rape law, uniquely in criminal cases, hinge on the asserted state of mind of the alleged criminal, rather than on the perceptions of the alleged victim”

    Again we are back to the adversarial system of law. In very simple terms this means one side doing all that they can legally and professionally ethically to convict someone for an alleged crime and the other side doing all they can legally and professionally ethically to prevent them being convicted.

    As for the state of mind of the alleged criminal uniquely being applied in rape cases, this is quite wrong. In virtually all crimes, the state of mind of the accused is an essential component of the crime.

    Historically, defence counsel would argue that a woman’s sexual history was helpful in determining whether or not she consented. It was not uncommon for the womans underwear to be held up in Court to assist the Jury in making their decision.

    Recent legislation stopped this. These are not facts which the Jury are allowed to consider in determining whether or not a woman consented. However, defendants have changed tact and used these facts to determine what they believed she consented. The law doesn’t prevent such evidence from being used in this case and the accused’s reasonable belief is a defence.

    Government is still looking at ways of trying to make it easier to convict alleged rapists without infringing too much on the principles of burden and standard of proof.

    Perhaps no amount of ammendments to the adversarial system of law will provide sufficient reassurance to women that their allegations will be taken seriously and there needs to be a fundamental upheaval in our system of law as it deals with rape cases.

    14 Apr 2007, 15:31

  23. Jessica Huntley

    Not sure I’ve mastered the blog systems (my first time) but I would like to respond to Hamid’s point 9:

    Oh and by the way I have seen the Accused. And I thought it was quite a powerful film and I’m glad that you’ve brought it up. There is no absolute safety in numbers. And if you watch that film you should realise that had it not been for the witness, the second case would have failed, as had the first case. Why? Because of lack of evidence. The woman had consumed plenty of alcohol, had taken drugs, had an alleged history of promiscuity, and had been outrageously flirtatious. Does that mean she deserved to be gang-raped? Absolutely not. But she did herself no favours and would not have won any of her cases had it not been for that witness although it is odd that the physical evidence was somewhat ignored.

    There is an argument that critical voices have engaged with that sees The Accused reinforce female disempowerment in rape cases rather than allow the victim (Sarah) to avenge her rapists due to the film’s reliance on the male point of view and authority (Ken’s confession). We are even denied the visible “proof” of the rape throughout the film and even during Sarah’s traumatic recounting of the event until the moment that Ken finally provides us with the “truth”. Relying on a male who is arguably part-complicit in the crime in his failure to respond in time to what is happening before his eyes is problematic in the context of the gender and sexuality anxieties that are eclipsed by the brutal act of male rape on the female. Carol Clover conveys this well:

    ...although The Accused seems to bring male gazing into account [...], the authority for that conviction, and indeed for the status of the incident as a whole, rests finally and solely on the authority of a male spectator: Ken, the college boy who witnessed the event, called the police, and finally, after some equivocating, provided the testimony that convicted his fellows [...] Seldom has a set of male eyes been more privileged; without their witness, there would be no case—there would in fact, as the attorney notes, be no rape.” (Carol Clover, Men Women and Chainsaws pp.149-150)

    15 Apr 2007, 16:33

  24. Something that should have been picked up on, comment 21 went some way. Sorry Thevanon, Hamid was correct to question the usefulness of the
    “In 1977, according to one report, about a third of all rape cases in the UK ended in conviction. Thirty years later, the conviction rate has dropped to 5.31 per cent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.”
    statistic.
    This says, basically, more rapes have been reported (amount of), but the conviction rate (percentage wise) is down, as if that says anything useful. In fact, I’d expect the conviction rate to fall if significantly more of a crime were reported. It is certainly not clear why this particularly helps the argument put forward. I don’t undestand this “despite” part. That part is not fact, it’s opinion, and poorly made.

    But James, really, don’t get all Jo Shepherd on us here, “straw man”, please. Straw person, indeed.

    16 Apr 2007, 22:00

  25. Thanks for your comments on The Accused Jessica. I hadn’t thought of the film in this way but I see now what you mean.

    Vincent, as I said to Hamid, you may not like that statistic, but what about the Home Office report saying that out of 50,000 rapes thought to occur each year, between 75% and 95% are never reported? Of those reported, almost a third of reported cases recorded by police as “no crime” should have been properly investigated as rape according to that report.

    17 Apr 2007, 08:47

  26. Well, that’s a different issue, obviously. It’s not what I was talking about.

    17 Apr 2007, 15:33

  27. Fair enough. I would be interested though to see more posts responding to this problem.

    18 Apr 2007, 08:19

  28. James

    Vincent is right that if significantly more crimes were reported, one might expect the conviction rate to fall. Incidentally one might also infer that the system has improved, in that more feel able to complain officially.

    As for his second point, certainly not. I didn’t go far enough. From now on: straw black lesbian disabled dwarf it will be. I expect you to follow suit.

    No doubt many improvements to rape law and procedure could be made. But the central problem will remain which is that by its nature, independent witnesses to rape crimes are unlikely. And if there is no physical evidence of a struggle (perhaps because the woman was too scared to resist) that makes it more difficult. We are then down to one word against another. That happens in other criminal and civil trials too, of course, and in such cases one can never feel as certain that justice has been done (whatever the outcome) as one would in, say, a murder case where there was overwhelming physical evidence leading to a conviction. There is also the problem that, yes, women’s credibility will suffer in the eyes of the jury (though the bench will caution them otherwise) if they look ‘slutty’ or were said to have dressed and acted provocatively. It works both ways too. An unsophisticated defendant, who looks like an ignorant thug, will struggle to have his story believed. For what it’s worth, I always thought that Mike Tyson was more likely to be innocent than William Kennedy Smith in their respective 1990s trials, for that reason.

    18 Apr 2007, 16:37

  29. Yvonne

    “In 1977 according to one report about a third of all rape cases in the UK ended in conviction. Thirty years later the conviction rate has dropped to 5.31 percent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.”

    This is partly due to the fact that in the last thirty years there has been a general decline in the number of people who think honesty is important. I know a solicitor who has been in practise for many years and has noticed a marked trend in society towards a feeling that it is acceptable to be dishonest. Unfortunately this has led to lawyers being more inclined to believe that a rape victim is not telling the truth.

    18 Apr 2007, 23:12

  30. It matters not what lawyers think, only Juries and if alleged rape victims can be dishonest so can alleged rapists.

    I am not sure why dishonesty affects the alleged victim more adversely than the alleged rapist.

    ”...An unsophisticated defendant, who looks like an ignorant thug, will struggle to have his story believed.”

    When I was a young emplyee of the then, quite new CPS, I was surprised at the extent to which my colleagues would consider whether or not a defendant was guilty on the basis of what he looked like. If my colleagues were doing it then why not the Jury?

    19 Apr 2007, 03:36

  31. Yvonne

    Yes, I can see that my argument does not stand up to scrutiny but I also think that because more women are reporting rape people have gradually become more blase about it and it is not considred to be such an atrocious crime as it was in the seventies. I still think that lawyers are more likely these days to think that an alleged rape victim is someone who started off consenting to sex and changed her mind at some stage. In reality I’m sure there are very few women who would ever bring a case to court under those circumstances. The only reason any sane women would put herself through that amount of trauma is if she knew that she had been violated and wanted justice and other females to be spared.

    19 Apr 2007, 14:46

  32. but I also think that because more women are reporting rape people have gradually become more blase about it and it is not considred to be such an atrocious crime as it was in the seventies.

    I don’t think it is that. I think it is more the case that cynicism has developed in response to several cases where it later turned out that no rape had occured or it was a highly dubious case. Take the recent example in the US with the Duke Rape Case 3 promising, young men, with their lives ahead of them spend a year of their lives defending themselves against false claims of rape. The media leapt on the story and was often guilty of judging the men before any real evidence was presented.

    Now, there is some evidence that something happened in the bathroom that night with the dancer who brought the rape charges. It’s not clear if it was rape, but it had nothing at all to do with those three young men. What are the costs to their lives? It may not seem as terrible to you, but such false charges would feel to me like another form of rape. To be constantly confronted with false charges for just over a year and to spend the rest of your life, perhaps, with some form of stigma is painful and engenders apathy or cynicism. If this high-profile case proved to be false then what of other rape cases?

    So it’s not a matter of the perception of the atrocity. Most people I have met – and this is anecdotal, I know – consider rape to be a horrendous crime, worthy of extreme punishment (our legislative system has not gone far enough to enable judges to pass sufficient sentences in rape cases in my opinion).

    The only reason any sane women would put herself through that amount of trauma is if she knew that she had been violated and wanted justice and other females to be spared.

    I refer you to the recent Duke case in the US.

    19 Apr 2007, 16:41

  33. Thanks Yvonne for your views. I think that your analysis of the situation is exactly right. The recent Home Office Report proves that most women are being put off reporting and trying rape cases rather than fabricating false cases.

    20 Apr 2007, 08:59

  34. The recent Home Office Report proves

    The recent Home Office Report “Suggests”.

    20 Apr 2007, 09:40


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