NationStates Jolt Archive

In 1977 the conviction rate for rape in England and Wales stood at 33%. As of 2004 the conviction rate was a mere 5.29%.

In an attempt to boost conviction rates the government had made a list of proposals, which include:
A new statutory definition of capacity to consent to sexual intercourse, which would clarify when a woman can be considered too drunk to make the decision.

The use of expert witnesses in court to help dispel "rape myths" and inform the jury how rape victims are likely to act. Although this routinely happens in the US, judges here believe their use would cause delays and prove expensive, unnecessary and "inappropriate".

Showing videotaped interviews with victims filmed when they first go to the police. Ministers said this would bring home to jurors the victims' distress. But the judges are concerned that this would be too emotive and not help establish the truth of the allegations. They argue that some people are particularly good at faking distress.

However, the Council of Circuit Judges (the body that represents the 637 circuit judges in England and Wales) has stated it's opposition to these proposals.

The Council of Circuit Judges state that the proposals are too complex and believe that more faith should be placed in the common sense of jurors. "The law shouldn't be complicated. It should be something that everybody understands," one circuit judge said.

What do you think?

http://www.guardian.co.uk/frontpage/story/0,,1996584,00.html

I don't see a problem here, they sound reasonable to me.

I don't see a problem here, they sound reasonable to me.

The propositions or the judges?

The propositions or the judges?

The propositions.

On the "too emotive" front, I think the Judges are right. How bad off the victim was is a matter for sentencing; it really has nothing to do with guilt or innocence. On the other hand, the expert witness thing probably has merit.

The real thing we need to ask is: what has changed between 1977 and today? Has the law changed? Are we now bringing more charges, with weaker cases? What is different about how we try the cases?

If we can identify the change, it can be reversed. Otherwise, the propositions seem like something of knee-jerk reaction.

I wouldn't feel too happy with the third proposition, as it is too emotional an approach to legal proceedings. The other propositions sound very reasonable to me, though.

I wouldn't feel too happy with the third proposition, as it is too emotional an approach to legal proceedings. The other propositions sound very reasonable to me, though.I didn't like that one either. It's relying on emotion rather than reason.

I'm not sure how I feel about a statutory incapacity to consent to sex. If you have intentionally got yourself drunk then you should still be responsible for your actions and words. What if the guy was beyond his limit? Surely he could claim that didn't have the capacity to consent to sex either and thus claim the woman raped him. I just really object to the idea that someone can claim they're not responsible for their words or actions because they chose to get rat-arsed.

A new statutory definition of capacity to consent to sexual intercourse, which would clarify when a woman can be considered too drunk to make the decision.

Fair enough. Makes sense.

The use of expert witnesses in court to help dispel "rape myths" and inform the jury how rape victims are likely to act. Although this routinely happens in the US, judges here believe their use would cause delays and prove expensive, unnecessary and "inappropriate".

Hmm..."expert witnesses" aren't always reliable. (http://en.wikipedia.org/wiki/Roy_Meadow)

Showing videotaped interviews with victims filmed when they first go to the police. Ministers said this would bring home to jurors the victims' distress. But the judges are concerned that this would be too emotive and not help establish the truth of the allegations. They argue that some people are particularly good at faking distress.

I oppose this one; the judges are correct, I feel. Also, different people respond in different ways; some might be teary and tug the jury's heartstrings into convicting someone even if the evidence is shaky, whilst others could be numb, closed off and unlikely to convince a dozen neutral watchers even if they really were raped.

Conviction rates aren't in themselves something that have to be raised; it depends on how many guilty people are actually charged and brought to court.
If more people are accused, but less are guilty, then conviction rate ought to decrease. Whether that's the case or not is something they might try to investigate before instituting measure to just convict more people. (Certainly the third proposition brings a large probability of that; it brings no new facts, but just an emotional appeal to convict)

I'm not sure about the third one and I definately dont like the first. I've never understoon why the woman being drunk means it was rape. Can we say the man was raped if he was drunk and the woman was sober? and we hold people responsible for other actions when they are drunk, like driving, why should sex be different?

I'm not sure about the third one and I definately dont like the first. I've never understoon why the woman being drunk means it was rape. Can we say the man was raped if he was drunk and the woman was sober? and we hold people responsible for other actions when they are drunk, like driving, why should sex be different?


I clearly remember a case in Sweden that was posted here not too long ago where a man accused a woman of having sex with him while he was drunk and therefore raping him.
The only double standard here is in people's heads, as could clearly be seen by the initial reactions of NSers posting replies on the lines of "Why would he claim it was rape? Was she ugly?"

I clearly remember a case in Sweden that was posted here not too long ago where a man accused a woman of having sex with him while he was drunk and therefore raping him.
The only double standard here is in people's heads, as could clearly be seen by the initial reactions of NSers posting replies on the lines of "Why would he claim it was rape? Was she ugly?"I think I might have softened slightly, but I still don't think that whether someone is too drunk to consent or not should be made statutory (like ages is). Different people can tolerate alcohol more than others. Do you legislate on absolute levels of alcohol or relative levels. It's just a minefield that should no have a statutory level set. It should be left to the jury to decide if someone was too drunk to consent. A law is inflexible and cannot access every situation individually. A juror can.

I clearly remember a case in Sweden that was posted here not too long ago where a man accused a woman of having sex with him while he was drunk and therefore raping him.
The only double standard here is in people's heads, as could clearly be seen by the initial reactions of NSers posting replies on the lines of "Why would he claim it was rape? Was she ugly?"

Well, slightly better I suppose. I actually meant that I dont think someone being drunk should be classed as rape at all. No matter what the sex of the victim.

The real thing we need to ask is: what has changed between 1977 and today? Has the law changed? Are we now bringing more charges, with weaker cases? What is different about how we try the cases?

It's possible that there's a greater percentage of rapes being reported now as opposed to then too. I imagine the stigma of being raped was stronger then, with those doing the reporting primarily backed by outraged relatives of some influence. Although I cannot say with certainty if the stigma is less now over there.

Drunk driving (Or Driving Under the Influence here) seems different than too drunk to decide. DUI is clear and you have a choice to make. If you drive, and if you are over a certain limit at the time of testing, then it's DUI.

As for too druck to decide, how is a blood alcohol level to be set? What is the physiological grounds for that level? And most importantly, where and who will make the measurement at the time of deciding to do the deed? Talk about a lawyers full employment bill...

Seems to me that the Judges are right on this one.

If I'm drunk and kill somebody, I can't use my being drunk as a defence, as far as I know.

And if consent is given, and then withdrawn after the act...how can it be rape?

This has a "new labour" sniff to it.

Well, slightly better I suppose. I actually meant that I dont think someone being drunk should be classed as rape at all. No matter what the sex of the victim.

do you think that the possibility of rape magically disappears with alcohol use?:confused:

do you think that the possibility of rape magically disappears with alcohol use?:confused:

What? I meant that just because someone voluntarily has sex when they are drunk, shouldnt mean that they can claim rape the next day.

edit: re-reading that post you quoted i see how i could be misunderstood. For clarification see my next post.

What? I meant that just because someone voluntarily has sex when they are drunk, shouldnt mean that they can claim rape the next day.

oh, well nevermind then.

It can be hard to get a conviction in a rape case to begin with given the he said/she said arguement. Unless you have solid proof that the sex was not consensual, a good lawyer will get the guy off. Then you have the strategy of attacking the victim, using her sexual history against her, etc.

As for these propositions, the last two seem to be reasonable changes to the law. They can work against the victim as well as the accused after all. Who knows who will believe what when you have dueling "experts" in court. And testimony of the victims could turn around on them should they give anything inaccurate or were mistaken in anything. Regardless, they should be allowed if the lawyers so choose.

I don't care to assign any kind of laws on alcohol consumption and when it affects your ability to make a decision though. If you commit a crime when drunk then you are still held accountable and the same should be true for any other decision you might make. Alcohol effects different people in different ways so I don't see how any kind of law could be fairly made to begin with. If the accuser wants to claim alcohol impaired judgement then that is fine but the law shouldn't assume such an impairment.

A new statutory definition of capacity to consent to sexual intercourse, which would clarify when a woman can be considered too drunk to make the decision.

'Unconcious/unable to speak' would be my thought. Should the act commence and there be no protest, how is one supposed to no theres no consent? How can there be no consent when consent has been given and the act willingly carried out? I'm either missing some point, or this is really rather mad.

It all looks fine to me. The first two definately benefit rape victims in court.

I say we remove rape as a crime altogether, and allow women to carry armed tasers in their naughty bits. The problem will solve itself.

On the "too emotive" front, I think the Judges are right. How bad off the victim was is a matter for sentencing; it really has nothing to do with guilt or innocence. On the other hand, the expert witness thing probably has merit.

The real thing we need to ask is: what has changed between 1977 and today? Has the law changed? Are we now bringing more charges, with weaker cases? What is different about how we try the cases?

If we can identify the change, it can be reversed. Otherwise, the propositions seem like something of knee-jerk reaction.

QFT

Well said.

I think I'd agree with the judges here. I've noticed some scary trends from the british home office with regards to trials in the last few years. The line "rebalance trials in favour of the victim" that Blair gave back in 2002 was particularly shocking, especially from a government full of trained lawyers.

It's almost like they do not understand that a trial's purpose is to ascertain guilt or innocence. The reason I mention this is because the same strategy seems evident in the suggestions quoted by the OP. It's no longer about fair trials, nor about innocent until proven guilty - it's about making sure someone gets blamed, whether they did it or not, so you can look like you're effective on stopping crime.

I agree with one of the posts above that low conviction rates in themselves are not neccesarily a bad thing, and on the same coin I'd add that raising conviction rates is not neccesarily going to fix anything.

"Rebalancing" trials is just going to send innocent people to jail.

People who commit the crimes should be caught, but sending the wrong people to jail is going to ruin innocent peoples' lives and let the real perpetrator off scott-free. But this is all simple stuff - I assume everyone here understands the reasons we have fair trials in the western world.

http://www.guardian.co.uk/commentisfree/story/0,,1807568,00.html sums up some of my views on that and the nature of "innocent until proven guilty" pretty well.

"The law shouldn't be complicated. It should be something that everybody understands," one circuit judge said.


Well that's a silly thing to say. The law is going to be complicated no matter how you look at it, and these reforms aren't necessarily going to make that more true.

And if consent is given, and then withdrawn after the act...how can it be rape?

The point of determining capacity is that the person was not able to give consent in the first place.

In 1977 the conviction rate for rape in England and Wales stood at 33%. As of 2004 the conviction rate was a mere 5.29%.

In an attempt to boost conviction rates the government had made a list of proposals, which include:

This bothers me. It seems as if there's an underlying asumption that convistion rates ought to be higher, without any analysis of what caused the drop to begin with. Could it be that there's less effective prosecution? Maybe... but it could also mean a higher incidence of false accusations, or maybe any combination of factors. To just arbitrarily say "we need more convictions" so let' sdo whatever it takes to make it happen is to tread over justice.



A new statutory definition of capacity to consent to sexual intercourse, which would clarify when a woman can be considered too drunk to make the decision.
This is bad. It asumes that every man will be well-versed on capacity of consent and will, himself, be able to apply this properly. Seems more like a trap than anything else.


The use of expert witnesses in court to help dispel "rape myths" and inform the jury how rape victims are likely to act. Although this routinely happens in the US, judges here believe their use would cause delays and prove expensive, unnecessary and "inappropriate".

Expert witnesses are never a bad idea, although if it's to be done, both sides ought to be able to do it.


Showing videotaped interviews with victims filmed when they first go to the police. Ministers said this would bring home to jurors the victims' distress. But the judges are concerned that this would be too emotive and not help establish the truth of the allegations. They argue that some people are particularly good at faking distress.
Agreed. People can be in an emotional state for a lot of reasons. Just showing that the alleged victim was emotional at the time proves nothing.


The Council of Circuit Judges state that the proposals are too complex and believe that more faith should be placed in the common sense of jurors. "The law shouldn't be complicated. It should be something that everybody understands," one circuit judge said.
100% agree.

It can be hard to get a conviction in a rape case to begin with given the he said/she said arguement. Unless you have solid proof that the sex was not consensual, a good lawyer will get the guy off. Then you have the strategy of attacking the victim, using her sexual history against her, etc. Depends. There are statutory limitations on bringing up previous sexual history in many jurisdictions now. Plus, it is up to the defendant to prove that there was consent.

Depends. There are statutory limitations on bringing up previous sexual history in many jurisdictions now. Plus, it is up to the defendant to prove that there was consent.

Isn't it the job of the prosecution to prove there wasn't consent? How does one prove a negative anyway? The accused should be under no obligation to prove that he is innocent. I assume the "innocent until proven guilty" maxim applies in Britain so the defendant doesn't have to prove anything.

Isn't it the job of the prosecution to prove there wasn't consent?
Consent is never assumed. In civil law, sex is automatically a battery, because it is not everyday contact. The defence to that is consent. The plaintiff has to prove the battery occurred, and the defence of consent is left up to the defendant.

In criminal proceedings, the prosecutor needs to prove that the sexual assault occurred, and once again, consent must be proven if used as a defence...there are various strict statutorily defined criteria used for determining consent.


How does one prove a negative anyway? The accused should be under no obligation to prove that he is innocent. I assume the "innocent until proven guilty" maxim applies in Britain so the defendant doesn't have to prove anything.
The onus is ALWAYS on the defendant to prove his or her defense. This is not the same as saying, 'assumed guilty'. In criminal matters, the prosecution must prove beyond a reasonable doubt that a crime was committed. If they can't do that, no defence is going to need to be raised. However, if they have proven their case beyond a reasonable doubt, it falls to the defendant to support any defence brought up.

It isn't as easy as it looks, proving the case in criminal matters. The actus reas and mens rea must be met first. Proving lack of consent can be part of that, but it's a subjective test on the alleged victim's side...and the positive onus of proving consent is still on the person advancing that defence.

Consent is never assumed. In civil law, sex is automatically a battery, because it is not everyday contact. The defence to that is consent. The plaintiff has to prove the battery occurred, and the defence of consent is left up to the defendant.

In criminal proceedings, the prosecutor needs to prove that the sexual assault occurred, and once again, consent must be proven if used as a defence...there are various strict statutorily defined criteria used for determining consent.

This is certainly ridiculous. In this way any woman can claim that she was raped and the guy has to somehow prove that she was perfectly willing? Sounds like a great chance for false accusations to succeed if it is up to the defendent to prove his own innocence. Though by the look of the conviction rates the OP posted, juries don't seem to assume that anyway.

The onus is ALWAYS on the defendant to prove his or her defense. This is not the same as saying, 'assumed guilty'. In criminal matters, the prosecution must prove beyond a reasonable doubt that a crime was committed. If they can't do that, no defence is going to need to be raised. However, if they have proven their case beyond a reasonable doubt, it falls to the defendant to support any defence brought up.

It isn't as easy as it looks, proving the case in criminal matters. The actus reas and mens rea must be met first. Proving lack of consent can be part of that...but the positive onus of proving consent is still on the person advancing that defence.

The first part of your post takes away from the "not as easy as it looks" claim. If proving a sexual act is all it takes then it seems pretty simple for accusers to go to court. If the defendant can't prove consent then it descends into a he says/she says kind of thing and who knows how a jury could decide matters? It could all come down to which person they like better which is hardly a way to decide guilt or innocence.

Anyway, proving consent is certainly the best way to convince the jury that the accuser is full of shit but if the defense can't actually PROVE it then the defendant shouldn't be seen as guilty because of it.

What the fuck? Their expanding the definition of rape so they can convict more people? Why can't they be happy that their rape rate appears to be going down?

Yep, I'm lost allright....

This is certainly ridiculous. In this way any woman can claim that she was raped and the guy has to somehow prove that she was perfectly willing? Sounds like a great chance for false accusations to succeed if it is up to the defendent to prove his own innocence. Though by the look of the conviction rates the OP posted, juries don't seem to assume that anyway. The system, for the most part, works just fine. Consent does not have to be verbal, it can be implied. Capacity generally goes to mental disability, or consciousness, and only rarely has extreme drunkness been successfully advanced to negate capacity. Also at issue can be duress, undue influence, and even in some situations, breach of fiduciary duty. The plaintiff needs to make out the relevant aspects of his or her case, and the defendant then has the opportunity to defend him or herself.



The first part of your post takes away from the "not as easy as it looks" claim. If proving a sexual act is all it takes then it seems pretty simple for accusers to go to court. Don't forget, we're discussing two different things here...sexual assault as a tort, and sexual assault as a criminal matter. Sexual assault is not defined, criminally, as any sexual act.


If the defendant can't prove consent then it descends into a he says/she says kind of thing and who knows how a jury could decide matters? It could all come down to which person they like better which is hardly a way to decide guilt or innocence. The jury is charged with finding the facts. That the facts are difficult to determine at times, changes nothing. The offence of sexual assault (criminally) is by definition, sex without consent. Lack of consent in regards to the victim is subjectively made out. The defence of consent on the part of the accused is generally objective...would the reasonable person in that situation have assumed, or believed to have received, consent.

I oppose this one; the judges are correct, I feel. Also, different people respond in different ways; some might be teary and tug the jury's heartstrings into convicting someone even if the evidence is shaky, whilst others could be numb, closed off and unlikely to convince a dozen neutral watchers even if they really were raped.
I agree. In fact I think that proposition would play into the hands of women making false claims. If they knew their video-tape interview will be used in court, they might be more likely to act even more distressed. Yet, as you say, a woman who has really been raped might act very cold and unemotive.

This bothers me. It seems as if there's an underlying asumption that convistion rates ought to be higher, without any analysis of what caused the drop to begin with. Could it be that there's less effective prosecution? Maybe... but it could also mean a higher incidence of false accusations, or maybe any combination of factors. To just arbitrarily say "we need more convictions" so let's do whatever it takes to make it happen is to tread over justice.
Bothers me as well. Perhaps the rate of conviction was higher back then because the rape cases appearing before court were more clear cut, in that they were what was/is commonly thought of as rape ('deranged stranger attacking lone woman after dark' sort of thing) but now with 3 decades of education and raising the awareness of what constitutes rape, more cases may have undoubtably been brought to court.
Hell, back in the 70's afaik a husband 'couldn't' rape his wife. So there's a few thousand extra cases.