Discussing Rape, Sensibly

Introduction

Rape is an emotive subject, and rightly so; it is a hideous crime. However, it has become increasingly difficult to discuss the topic. Commentators on the subject are often berated for ‘victim blaming’ or otherwise doing a disservice to victims. Recent examples of this condemnation include the recently retired judge who was pilloried for suggesting the rape conviction rate will not increase until women stop getting so drunk, and the creators of a new nail varnish that detects ‘date-rape’ drugs in drinks being criticised for putting the onus onto women to prevent rape, rather than encouraging men not to rape in the first place.

However, it is vitally important that rational and sensible debate is not stifled by the militant, the ignorant or the misinformed. Unless rape is discussed sensibly and rationally there is a risk of losing sight of what is so peculiarly bad about rape and what amounts to rape, as well as jettisoning progress made on attitudes toward rape.

This article will discuss three particular topics that have led in recent times to strong reactions, with the intention of bringing some objective perspective to the issues. Those topics are:

(a)        victim drunkenness;

(b)        precautions taken by victims; and

(c)        the relative severity of different rapes.

It is hoped that this discussion exposes the issues to be more than merely ‘black or white’, but instead deeper and more nuanced, thereby enabling rational and sensible discussion.

Victim Drunkenness

Last week a recently retired circuit judge, Mary Jane Mowat, said ‘…I will pilloried for saying so, but the rape conviction statistics will not improve until women stop getting so drunk’.

It was no surprise that this comment sparked fury. Natalie Brook, service manager at the Oxford Sexual Abuse and Rape Crisis Centre, said the former judge’s comments on rape were ‘outrageous, misguided and frankly dangerous’. She said: ‘Rape convictions will improve when those who perpetrate it, who are disproportionately male, stop raping and when society stops blaming women for somehow being complicit in this act of violence. Rape is 100 per cent the fault of the perpetrator’.

However, is it right to say the former judge was victim blaming? It is not. She herself made clear it was unacceptable to rape a drunken woman. She said: ‘I'm not saying it’s right to rape a drunken woman, I'm not saying for a moment that it’s allowable to take advantage of a drunken woman’.

Far from being victim blaming or ‘outrageous, misguided and frankly dangerous’, the comments made by the former judge were in fact entirely correct, for this reason: a conviction for rape is most unlikely to result from the evidence of a person who was drunk at the material time when that is the sole evidence. This requires further explanation.

In law, under section 1 of Sexual Offences Act 2003, the offence of rape is only committed when three elements are proven:

(1) the intentional penetration by a person (A) of the vagina, anus or mouth of another person (B) with A’s penis;

(2) B does not consent to the penetration; and

(3) A does not reasonably believe that B consents.

Those three elements must be proven by the prosecution; in essence, they must be proven by the person who alleges they were raped. And it must be proven so that there is no reasonable doubt that A raped B. That is to say a jury must be convinced so that they are sure A raped B. That is an exceedingly high standard. It might be questioned why the standard of proof is so high for criminal offences. Is it not the case there is never smoke without fire and therefore if we have some evidence against an individual so that we are reasonably confident of their guilt that is enough to convict them? That approach is wholly unacceptable for two reasons. Firstly, history shows us there is very often smoke without fire. Secondly, society adopts such a high standard of proof because the consequences of a criminal conviction are severe. Convictions are accompanied by a strong social stigma – particularly in the case of sexual offences – and can result in an individual being deprived of their liberty. They also often result in the loss of employment and can destroy families. Since the consequences of convictions are so severe we ensure that they are only visited on those who we are sure are deserving of them: those who we are sure committed an offence. Therefore rape must always be proven by the prosecution; there can be no exception to this hallowed principle. The failure to prove any one of three elements results in the conclusion that the offence of rape was not, in law, committed and the defendant is innocent.

Rape almost invariably occurs in circumstances where only the alleged offender and alleged victim are present: there are no other witnesses. Therefore (assuming the absence of, for example, CCTV footage) the only evidence to prove or disprove an allegation of rape is the evidence of the alleged offender and alleged victim: it is one person’s word against the other’s. But the alleged victim must, as it has been explained above, prove the alleged offender’s guilt. They must prove each of the three elements of rape; a jury must be sure, on the alleged victim’s evidence alone, that the alleged offender is guilty. That is not an easy task: who of us are ever sure that something happened when one person says that it did and another says it did not? If the alleged victim was drunk, so that she (or less often, he) has little recollection of what was said or what happened, then it becomes almost impossible to give a compelling account that will convince a jury of the alleged offender’s guilt: how could they possibly convince a jury that they did not consent to sex, or that the alleged offender did not reasonably believe consent had been given, when they have a patchy recollection themselves? As a consequence of the alleged victim’s drunkenness they cannot provide the necessary evidence to justify a conviction – their credibility is diminished, if not extinguished.

Observing that a victim’s drunkenness diminishes their credibility so as to prevent a conviction for rape is not blaming the alleged victim for their own rape or the failure to mount a successful prosecution: it is making an objective observation that the victim’s drunkenness has almost certainly deprived them of the ability of providing convincing evidence of the alleged offender’s guilt. If the alleged offender is guilty of rape then they are guilty of a heinous crime, nothing changes that. But the victim’s drunkenness does almost certainly prevent a conviction for rape. It is therefore correct to say conviction statistics will not improve so long as alleged victims are drunk. Indeed, even if alleged victims are not drunk it is difficult to satisfy the high burden of proof when there is no other supporting evidence. Again, as it has already been said, that does not make it the victim’s fault; it is simply the consequence of circumstances where there is limited evidence and a justice system which, rightly, requires proof of guilt.

Two other points should be made. Firstly, having sex with someone who is drunk does not automatically amount to rape. Alcohol causes individuals to behave differently and make decisions that they would not make when they are sober. That a person would consent to sex when drunk but not when sober does not transform the sex into rape. Drunken consent is still, in law, consent. Individuals must be responsible for their own conduct and accept the effects of voluntary intoxication on their own behaviour.

Secondly, and related to the first point, where an individual is so drunk that they lose capacity to consent, such as when they are unconscious or rendered unable to make a decision on whether to have sex or not, they cannot legally consent and any act of sex will amount to rape where it can also be proven that the alleged offender did not reasonably believe consent had been given. That said, if the alleged victim was so affected by alcohol then, for the reasons explained above, it would be extremely difficult to secure a conviction because the alleged victim’s evidence would have little weight on account of their drunkenness.

In summary therefore, stating that the rape conviction statistics will not improve until alleged victims (predominately female, but occasionally male) stop getting drunk is a perfectly legitimate, sensible – and correct – observation. It could not be further from blaming victims; it merely identifies the barriers to a conviction raised by drunkenness.

Precautions

Moving on to the second area where strong reactions have been recently observed, the background is familiar. It is said that females (who are disproportionately affected by rape) should avoid walking out late at night to avoid the risk of rape, in addition to taking other precautions. Critics of these suggested precautions contend that they place the burden on victims to avoid being raped, rather than encouraging men not to rape, and that when women do not take these precautions they are in part responsible for their own rape. In essence, it is said that suggesting precautions is a form of victim blaming.

This was exactly the response to a recent innovation created in the United States – a nail varnish that changes colour in the presence of the most common date rape drugs. The wearer of the varnish is simply required to stir their nail in their drink and if it changes colour it indicates a spiked drink. Writing in the Independent, Chloe Hamilton said: ‘Anti-rape inventions such as these, that focus on what women can do to avoid being raped, not only tell girls that they should be on their guard and primed for an assault at all times, but also that if they’re not prepared, it is they who are at fault, not the men intent on drugging them and assaulting them’.

Is the issue so black and white? Is it correct to say that recommending precautions such as not walking alone late at night and colour changing nail varnish places the onus on victims to protect themselves and blames them when they do not adopt the recommendations and are subsequently raped? In short, it is not. It does not logically follow from recommending precautions that those who do not adopt them are at fault for any attack. In the case of rape it is the perpetrator who is always at fault; they have absolutely no right to force sexual activity on anyone.

It is perfectly legitimate – and sensible – to recognise that there are risks in life, however unwarranted those risks are (as is the risk of rape), and to take suitable precautions. That does not place the onus on potential victims to take precautions, or blame victims when precautions are not taken. It merely recognises, objectively, that certain risks can be avoided by adopting suitable precautions; it does not attribute fault to those who opt not to take the precautions. For example, no one has right to burgle another’s property. However, given that it is an unfortunate fact of life that it is a common crime, many homeowners opt to install a burglar alarm. If a homeowner opts to not install an alarm they are not at fault if they are burgled. Indeed we would not say the homeowner is duty-bound to install an alarm or at fault for not installing an alarm. The fault lies squarely with the offender. Similarly, in the case of rape, it is an unfortunate and unacceptable fact of reality that there will always be monstrous individuals prepared to attack others sexually. It therefore makes sense to take precautions and heed advice to avoid that possibility. However, there is no onus on victims to take precautions, and victims are not at fault if they are raped when precautions are not taken. The rapist is wholly at fault.

It is therefore clear that recommending precautions to avoid rape merely recognises, objectively, that we live in a world where there are risks that we should not be exposed to that can possibly be avoided when certain measures are taken. It does not place an onus on victims to avoid being raped or blame them when they are raped having taken no precautions; it does not alter the underlying philosophical position that those who commit a crime are entirely responsible for committing that crime.

Relative Severity of Rapes

The final topic that has in recent times attracted strong opinions is whether all rapes are equally serious. As it was noted in this article, both Crimewatch presenter Nick Ross and former Justice Secretary Ken Clarke have found themselves on the receiving end of strong criticism for suggesting that certain rapes are more serious than others. For the critics, rape is rape and there are no gradations of severity. So are some rapes more serious than others? While the arguments will not be repeated here, for the reasons given in this article it is entirely correct to say that some rapes are more serious than others. All rapes are serious, but some are more serious. That is a logical and sensible conclusion.

Conclusions

Although rape is a highly emotive subject, it is hoped this discussion has discussed the issues in a sensible and rational way and distilled some logical conclusions: the rape conviction rate is likely to improve if victims are not drunk; recommending precautions to avoid rape does not blame victims; and some rapes are more serious than others. Alarmist headlines often mask legitimate observations and should be treated with caution. The issues are far from black or white: they are complex and intricate, and should be discussed sensibly and rationally. While rape is absolutely wrong, the issues surrounding rape are far from absolute.

What are your thoughts?