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  • ‘Were they asking for it?’ - the rape/consensual sex debate

    by SajiniW
    31st March, 2006 at 2:38 pm    

    Things have been relatively active on the female front of late. Continued coverage of Sally Ann-Bowman and the Jeshma Raithatha cases has turned the spotlight to rape and female sexual morality once more.

    We’ve got Kate Taylor and Johann Hari taking up the liberal corner - providing a refreshing contrast to the ‘female sexual morality’ survey carried out in Sheffield last week.

    What’s more intriguing is the reference to Dr Tuppy’s ‘Sexual Freedom Coalition’ formed to keep explicit expression alive.

    It’s staggering to observe that ‘rape is teetering on the brink of being an unpunished crime’ in Britain today,

    only 5.6 percent of the rapes reported to the police in this country end in a conviction.

    Figure in an equal number of unreported rapes and we’ve got a serious problem on our hands. ‘She was drunk’, ‘she was asking for it’, ‘her clothes were tight’. With attitudes like these and judges throwing out case after case on the grounds of alcohol consumption, an open debate needs to be instigated - here and now.

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    1. Jay Singh — on 31st March, 2006 at 2:52 pm  

      I am surprised by those figures - only 5.6% conviction rate.

    2. David T — on 31st March, 2006 at 3:48 pm  

      It isn’t judges. Judges basically never “throw out” cases, because if they do, they end up in newspapers, being slagged off. Almost always, these cases are left to juries

      Juries consist of men and women who are not prepared to convict on the basis of the evidence that is presented.

      In other words, people like you and your mates go on juries, hear the evidence, and think “I am not sure that this was rape”. In cases in which two people get very drunk, stumble home, end up in bed, women and men both think “Well I’ve done that, and it wasn’t rape”.

      In fact, as Daniel Davies of Crooked Timber pointed out on Comment Is Free, the number of convictions has
      stayed pretty constant over time. However the prosecution rate has gone up massively. Usually, the CPS will only prosecute cases where there is a reasonable prospect of success. But in rape cases, they will always prosecute any case which is reported.

      My wife does lots of rape prosecuting, and you wouldn’t believe the cases which end up in court. She did a case about a married woman and a man who became close friends, and spent a day together getting pissed. They woke up in bed together the next morning, agreed nothing had “happened”. It was only when her husband came home and asked what the stains on the sheets were that the case was reported. Neither can remember if they actually had sex!

      Obviously, cases like this don’t end in convictions: but they go to trial. The reason they go to trial is that a few years ago, under political pressure, the CPS made a policy decision always to prosecute.

      The only time they don’t prosecute is when the complainant withdraws the complaint: which can happen for all sorts of reasons, and not simply because the complainant is worried about the case going to trial.

      The law has been reformed about once every couple of years to make rapes “easier” to prosecute. The idea is to get the conviction rape up, irrespective of whether more not guilty people are convicted. The next stage that the campaigners are pushing for - and I kid you not - is

      - to lower the burden of proof for rape to “balance of probabilities” - i.e. more likely than not; and

      - to have rape trials conducted by judges only, with no juries, with judges trained in the theory of gender politics judging the cases.

      This is seriously being considered now! And it will be supported by the many of same people who oppose trial without jury for terrorist cases. Unbelievable!

    3. Geezer — on 31st March, 2006 at 3:49 pm  

      I share the same sentiment 5.6% is shockingly low….

    4. harry — on 31st March, 2006 at 3:53 pm  

      5.6! damn!

      oh btw nice blog :D

    5. Sunny — on 31st March, 2006 at 4:01 pm  

      Heh - thanks Harry.

      What I don’t get about the issue is - what exactly should be done? This statistic has been banded around so many times and constantly you get these outrages over low conviction rates. Isn’t it a bit worrying that people will read it and think ‘hmm… maybe I won’t be caught if I rape someone?’.
      Anyway, no one seems to suggest a solution :|

    6. David T — on 31st March, 2006 at 4:16 pm  

      The solution is

      1. End the culture in which people have casual sex.

      2. End the culture in which people have casual sex when drunk.

      As long as people voluntarily have casual sex with each other when drunk, juries will always have problems in deciding whether something was “bad sex” or “rape”.

      Now, most people have some experience of having casual sex usually when they are young, and are very inarticulate and inexperienced. Most people have predominantly good experiences of it, with a few nasty experiences.

      What is absolutely certain is that if you change the sexual morality of a generation so that casual sex rarely happens, you will have fewer unpleasant sexual experiences and rapes. You will probably also have more hidden rapes, where women do not report rape, if you replace a sexually liberal culture with one which is based around sexual shame.

    7. j0nz — on 31st March, 2006 at 4:21 pm  

      David T. Thankyou, that has been very insightful.

      5.6 does seem low, however whats the solution? If the evidence isn’t there, then what can be done?

      I’ve slept with girls that have taken advantage of me. I really don’t know how they happened.. It’s scary to think what would happen if the burden of proof was lowered, and some psycho-bitch had it in for me.

    8. Sunny — on 31st March, 2006 at 4:40 pm  

      End the culture in which people have casual sex.

      Ok that’s where I draw the line.

    9. David T — on 31st March, 2006 at 4:49 pm  

      Well, I dunno.

      I have had occasional sexual experiences with women in my distant youth which could only be described as “unpleasant” (and sometimes painful). I wouldn’t describe them as rape, and I’m not “scarred for life” or anything like that. I would normally not mention this in a discussion for a whole range of reasons including
      - men are supposed to be up for sex all the time
      - it is more difficult to think of men having sex in a “coerced” way than it is for women (as erections are thought to be voluntary, and men don’t generally get penetrated which is the essence of rape)
      - as a matter of fact, there is more male sexual violence to women than to men.

      But I raise it only because I sometimes think - “why don’t I regard those sexual episodes as rape?” “where is the dividing line between nasty sexual experiences and sexual assault”? etc.

      I also remember going out with a girl when I was about 18, when we went out for dinner, went back to her place, got into bed, had sex, and then she started to cry. I asked her why she was crying and she said that she didn’t know. I couldn’t get her to tell me why. We went out for a number of months after that, and she couldn’t tell me why. I still don’t know.

      This really freaked me out, and still does a bit, because I basically never had casual sex and was always very careful about sexual consent, as a political thing as much as a personal thing. So much so that I said no to sex loads of times because the person who was coming onto me was drunk. And I keep thinking - if she had reported the sex as rape, what would have happened?

    10. raz — on 31st March, 2006 at 4:59 pm  

      Let’s remember - 5.6% of REPORTED rapes result in conviction. Given the amount of unreported rapes in this country, it makes it even more shocking.

    11. Siddhartha Singh — on 31st March, 2006 at 5:05 pm  

      I don’t think a sexually liberal culture means it has done away with the shame and stigma of rape. That culture of shame seems to be the same for victims in sexually liberal as is in sexually conservative cultures, as the horrendously low figure of 5.6% suggests.

    12. David T — on 31st March, 2006 at 5:09 pm  

      You might be right.

      My guess is that sexually repressive cultures regarded raped women and sexually active women alike as “soiled goods”. That must make it more difficult to report rapes.

    13. Siddhartha Singh — on 31st March, 2006 at 5:17 pm  

      I suspect male attitudes to women in sexually liberal cultures to be exactly the same. Men seem to behave like animals in spite of the veneer of “liberality”. And women regard being raped with the same emotions irrespective of what kind of culture they live in.

      Don’t think this has anything to do with the sexual “mode” of the culture.

    14. David T — on 31st March, 2006 at 5:29 pm  

      Another possibility for the low conviction rape - apart from the high prosecution rate - is this.

      Can you think of another case in which the line between lawful and unlawful activities is so thin?

      Take two examples - theft and assault.

      In a theft case, the defence is very rarely “She came back to my house and I thought she was giving me her mobile phone to keep” because people do not go back to the houses of acquaintances and just give them mobile phones. People do, however, go back to acquaintances houses and have sex with them. Juries know this because they have done this sort of thing themselves.

      In an assault case, people don’t run the defence “I thought we were agreeing to punch each other” because again, that almost never happens (apart from in boxing rings etc.). But again, people do agree to have sex with each other.

      Another factor is that people who give property to each other do so explicitly and verbally and clearly. Loads of people are much less up front about exactly what sort of sex they want to have and how, for all sorts of reasons, including embarrassment.
      Again, when I was younger and slept around, I would always expect a woman to say explicitly “let’s fuck”, and when they didn’t, we didn’t have sex. Afterwards, when we got together, I’d hear “why didn’t you pick up on the hints I was giving you - do I have to spell it out” etc..
      So there is a bigger chance of getting it wrong.

      The final factor is that in other offences, there is more often independent evidence - witnesses, somebody in posession of somebody elses property - which could only be explained by the crime having taken place. In rape, there is often no dispute that sex took place, but only a dispute as to consent, for which there is quite unlikely to be an independent witness. In fact, if there are independent witnesses, it will often militate towards acquittal - i.e. eye witnesses saying “X met Y in a pub and they went home together”.

    15. Sunny — on 31st March, 2006 at 5:37 pm  

      I agree with Sid on this one too.

      Its the likes of Hizb (and to be fair to them a lot of Indian nationalists) who go around saying the west is becoming morally degraded etc because these offences come to light. But they always sweep under the carpet the huge amounts of domestic abuse and rape and incestual rape that goes on in these communities.

      It’s even harder for women to report anything in those communities. I’d much rather have an open society where the offences are out in the open and discussed than simply not acknowledged. So I don’t see what casual sex has anything to do with it. It would work only if one could prove more conservative societies have less abuse of women and less rape.

    16. David T — on 31st March, 2006 at 5:57 pm  

      Yeah but in societies with a liberal sexual culture sex there is probably going to be more sex and therefore more cases in which date rape takes place and more cases in which it is reported.

      Do you see what I’m saying?

    17. Katy Newton — on 31st March, 2006 at 6:01 pm  

      I agree with David T.

      Rape convictions are low, I think, because in the vast majority of cases the complainant and defendant knew each other in some way and it is one person’s word against another’s. In any case where there is only one witness to an offence and the defendant denies it, the jury is going to be very careful about convicting. Add to that the understandable reluctance of juries to convict defendants of sexual offences - I actually think most people would find a conviction for murder less repellent than a conviction for rape or sexual assault - and rape becomes a difficult crime to prosecute successfully.

      It would be very interesting to break the rape statistics down further. In cases where there is more than one complainant alleging that someone raped them, where there is forensic evidence to back up the complaint, where there is clear evidence of beating or other violence used, where the complainant has clearly never met the defendant before, or where some other independent evidence exists, I would imagine that the rate of conviction would be much higher. In date rape situations there is a genuine evidential problem. I know that some people believe that the best way to deal with that problem is to simply reverse or reduce the burden of proof and I find that astonishing. The injustice would be monumental. How on earth is one person supposed to prove that the other consented to sex if the other person says they didn’t and there’s no one else to say one way or another? Isn’t it right that the burden should rest on the state in exactly the same way as it does in every other criminal case?

      Part of the answer to the problem is to educate women and men about making wise decisions in situations which might lead to date rape. But I think that to a certain extent we have to accept that unless we turn sex into a spectator sport it is always going to be more difficult to prove that one person raped another than it is to prove that one person burgled another person’s house.

    18. Katy Newton — on 31st March, 2006 at 6:06 pm  

      PS I don’t think we need to put a stop to casual sex, I just think people generally need to be a bit more careful about how they go about, er, arranging it.

    19. Wanker — on 31st March, 2006 at 6:20 pm  

      If I masturbate when I don’t feel like it, can I prosecute myself for rape?

    20. Katy Newton — on 31st March, 2006 at 6:26 pm  

      That would be a sexual assault, not a rape, Wanker.

    21. Katy Newton — on 31st March, 2006 at 6:27 pm  

      If you rammed a banana into your mouth when you didn’t really feel like one, that would be rape…

    22. Katy Newton — on 31st March, 2006 at 6:30 pm  

      … well, not really. But almost. Sort of.

    23. Wanker — on 31st March, 2006 at 6:31 pm  

      If you rammed a banana into your mouth when you didn’t really feel like one, that would be rape…

      In my mouth??

    24. Kulvinder — on 31st March, 2006 at 7:28 pm  

      Dear god that Johann Hari article is bollocks.

      You’re using the 5.6% statistic in some kind of pseudo mathematical realist way - that the definition of rape can be seen to be inherently objective to exist independently and god damnit therefore the country is full of raping bastards who need to be brought to justice.

      Im not sure how to deal with this argument, the government shouts that not enough convictions are being made because their ‘statistics’ don’t follow the desired pattern. Well who are they to decide that the conviction rate is abnormal?. Our legal system allows juries to judge an individual, it is the only way to form a true feedback mechanism to the society the law presides over - any judiciary that is sufficiently at odds with its public is a de facto tyranny.

      The jury as a cross representation of society decides that a particular individual is not guilty. Id rather take their word for it than that of the state, which as DavidT has already pointed out can skew the ‘statistics’ by allowing spurious claims to come to trial (the CPS politically influenced - perish the thought!).

      The rhetoric for these stupid stupid laws invariably use the likes of Sally Ann-Bowman and the Jeshma Raithatha as ‘examples’ for why tougher measures are needed, or in justification for them being talked about. The laws themselves would have utterly no impact on such cases of brutal murder but would target men that any reasonable person would give the benefit of the doubt to.

      The spectre of the sadistic rapist lurking in the bushes is raised to legislate against the university fresher who drinks too much.

      It is bullshit.

      Damn their statistics and their attempt to make only the strongest of juries go against the directions of the judge and stupid laws in order to keep men that they – as representatives of society – would rather go free.

      The implications of such a law go far beyond drunken fumbles. I detest any ill thought legislation that drives a wedge in society and that is exactly what i see happening in the future. I am a multiculturalist and i would never seek to dissuade any of my friends or relations from developing a relationship with someone who is either from a different cultural background or is of a different colour. It is not my life.

      Unfortunately not everyone thinks the same and there are Asians with a racist mentality as vitriolic as any white supremacist. The thought of their children having sex with a black or white individual is repugnant. I’m afraid such stupid laws will only compel a girl who for example has sex with a black man to cry rape in order to salvage some dignity if her parents found out.

      It is impossible for anyone to determine what really happened one night between two or more individuals and whether it was ‘consensual’ especially if the victim doesn’t report it immediately. There is no justification for laws that give any individual the ability to change their mind about sex hours after is has occurred. The law should not act as a morning after pill.

      I’m waiting in slightly deranged anticipation for a black man to be found not guilty or rape, only for him to attempt to bring some sort of counter action against the ‘victim’ for racism.

    25. Kulvinder — on 31st March, 2006 at 7:35 pm  

      oh and in other news SOA (2003) is bollocks.

    26. Katy Newton — on 31st March, 2006 at 7:47 pm  

      Wanker - if a man forces a woman to perform oral sex he is committing an act of rape in law.

      My banana example was woefully inadequate. Let us not go there again.

    27. Fisking Central — on 31st March, 2006 at 7:47 pm  

      I think you have to be really, really careful with this equating of casual sex and rape. There has been an awful lot in the press, and on blogs, over the last few days that implicitly suggests that women who are sexually active, who like sex, and want to have it often, are somehow at fault for increasing the chances of rape.

      To say that: ‘what is absolutely certain is that if you change the sexual morality of a generation so that casual sex rarely happens, you will have fewer unpleasant sexual experiences and rapes’ puts in place an acceptance that the two are inevitably interlinked (and the rape aspect of his statement I don’t accept, by the way). They should not be. We should be working to change the sex that happens, not the amount of sex there is. If women are getting more sexually confident, which I think generally they are, then there will be more rewarding sex, and not less.

      I know lots of ladies who, frankly, are gagging for sex and would shag just about anything. They retain the right to be as discerning or as undiscerning as they please - their level of general sexual desire does not have any bearing on a specific act of violation. Any man that doesn’t recognise, or chooses to ignore, the signs of female resistance during a sex act is morally retarded and should be punished in any case. To suggest otherwise is to desolve the man of any responsibility for how he behaves during the act itself. The urge to have lots of casual sex, and the urge to act sexually inappropriately are entirely different things(otherwise women would be more likely to rape people as they became more sexually active also).

    28. Fisking Central — on 31st March, 2006 at 7:59 pm  

      got a bit carried away with the sound of my own voice there - I’m new to this blogging lark, do forgive me…

    29. Vikrant Singh — on 31st March, 2006 at 8:11 pm  

      I’m afraid such stupid laws will only compel a girl who for example has sex with a black man to cry rape in order to salvage some dignity if her parents found out.

      Ditto… its habitual of Asian parents to warn their boys to steer clear off white gals.

    30. Fisking Central — on 31st March, 2006 at 8:34 pm  

      Surely in that case it is the fault of the parents and/ or the duplicitous girl, rather than of the law?

    31. Kulvinder — on 31st March, 2006 at 9:04 pm  

      Hateful people use stupid laws to their advantage. We can’t legislate against hateful people(alright alright we can and unfortunately do, but for the sake of argument) but we can prevent stupid laws.

      Incidently although a girls behaviour won’t make her responsible for a rape, her actions do, to an extent make the defendant less culpable.

    32. Sunny — on 1st April, 2006 at 3:20 am  

      I’m with Fisking central on this one, and on my previous stance. To be honest David T I think you got the wrong end of the stick here.

      And I also disagree with you Katy. Of course we can never really tell but sometimes DNA evidence does.

      It may be a statistical probablity that if there is more casual sex, then there are more reports of rape. But it may ALSO be a statistical probability that in a more conservative society, where women are usually the ones being told to shut up and do as their told, that there is more chance of rape because men believe they have the power over women.

      It is because rape is a fundamentally power equation, and it results out of the man not having any respect for the woman, that I believe in a conservative society its more likely.

      So first, there is that comparison. Then, you can compare whether a liberal attitude towards sex would mean more rape.

      Rather than having a pessimistic view of how rape has progressed, I would say that society has actyually improved when it comes to rape.

      Sure, there may be more casual sexual harassment. But I would be very surprised if more rapes did not take place in previous centuries, but just weren’t reported because the victim knew there would be no support.

      Certainly in Indian society, many women do not report it simply because they know it would only bring more shame on the family and herself. Its an absurd situation but unless you convince society that the rapist is the only one to blame, and make everyone realise that no means no - there will continue to be rape. And the more unequal the men-women power relationship, the more rape will happen.

    33. Katy Newton — on 1st April, 2006 at 8:06 am  

      Sorry, I’ve mis-expressed myself. I didn’t mean to suggest that permissive societies lead to more rapes. I was just making a general comment about the fact that people sometimes make decisions rashly and regret it later, but I can see why you thought that was what I was saying in relation to

      DNA evidence can show that two people had sex, but generally not much more than that. So if a defendant says that nothing happened with someone at all, and the complainant has semen inside her, for example, DNA testing can prove that the defendant is lying. It still doesn’t prove that the sex wasn’t consensual. Forensic evidence isn’t all it’s cracked up to be a lot of the time.

    34. Old Pickler — on 1st April, 2006 at 2:21 pm  

      Having been on a jury - not a rape case - I now realise the real meaning of the term “beyond reasonable doubt”. As well as David’s valid point about the ambiguity of certain situations, there is the issue of the standard of proof, which should not be different in rape cases to other cases.

      Any woman has the right to say no at any stage, no matter how drunk she or the man is. But proving what happened is bound to be difficult.

      Going back to a morality that doesn’t allow casual sex is not the answer. (In practice, this “morality” allowed - and allows where it prevails - casual sex for men, but not for women, resulting in, perhaps more rapes going unreported.)

      There is no perfect justice in any cases, but in rape cases, whatever you do, however you change the law and attitudes, justice is always going to be a holy grail.

    35. El Cid — on 1st April, 2006 at 3:22 pm  

      You want an open debate?
      How about this:
      I shagged a woman when I was younger. We were both blind drunk but we both knew what we were doing. It was shit sex but undoubtedly consensual. Thing is, the next morning, she acted all strange and refused to talk to me. Instead, she and her mate — who had been in the bed alongside that night — kept looking at me funny, whispering, almost distressed. You see where I’m going with this?
      Can the morning-after evidence of a woman who engaged in drunken sex really be trusted? Only if you believe all men really are rapists.
      There’s something wrong with a 5.6 percent conviction rate but there’s also something wrong about sending innoncent men to jail. The “she was asking for it” argument has never washed with me, but the “a drunken yes doesn’t mean yes” route is bollox.

    36. Sid D H Arthur — on 1st April, 2006 at 3:41 pm  

      El Cid

      hermano del respecto ;-)

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