Rape case reform in the UK.

Not one week after UK women Reclaimed the Night on Saturday, we find that juries will now be “briefed” before rape cases in order to dispel “rape myths” that studies have shown to contribute to a severe decrease in rape convictions in the UK.
In 1977, 33% of reported rapes ended in conviction. By 2005, that percentage had dropped to 5.4%. So in one form of response, a number of doctors, judges and academics are in the process of putting together a packet to be presented to juries which addresses these myths (such as the fact that not all rape survivors report the crime immediately, or that not all will act emotionally on the witness stand).
Despite the project, others still think change within the system as a whole is necessary to change the current state of conviction rates.

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31 Comments

  1. starknut
    Posted November 29, 2007 at 11:52 am | Permalink

    I agree, a *huge* change in the system is needed, but…baby steps. This is a good move in the right direction.

  2. sgzax
    Posted November 29, 2007 at 11:52 am | Permalink

    It’s a start. I hope the hand-out really explores the concept of consent as well, and carefully points out that consent is ‘yes’ not the absence of ‘no.’
    I have to admit that I sometimes check myself in the act of victim blaming when I hear about crimes of violence against women. I learned so well to be suspicious of women (and I am one) and protective of men that I still have remnants of the knee-jerk apologetic impulse that I have to check. And I’m aware of these issues! Just think how it must be for a person floating along in today’s openly misogynistic culture without the benefit of feminism to point out the hypocrisies and inconsistencies. He or she wouldn’t even realize that they were perpetrating an injustice because they’ve been taught to doubt it’s existence unless it’s absolutely explicit.
    So, again. It is a much needed start. Hopefully someone with this information won’t fall for it the next time a British prosecutor tries to say that a girl wanted to be raped because she was fat. As happened last year.

  3. dananddanica
    Posted November 29, 2007 at 11:58 am | Permalink

    A positive step in the right direction. Explaining what seem to be the complexities of consent will be hard to tackle in a handout or pamphlet, even more so with a lawyer trying to muddy the issue during the trial.
    5% of reported rapes ending in conviction is a shockingly low number, I’ve read many of the reasons for this and it seems that there are quite a few causes. The stickiest one for me is the consent one mentioned above, justice and the law are different and legally proving lack of consent can be incredibly difficult. Hopefully this handout will help with the issue.

  4. Posted November 29, 2007 at 12:00 pm | Permalink

    baby steps indeed! but every journey and the first step and i hope that it helps…
    sgzax- good to know that i am not the only one who catchers herself slipping up w/ it comes to victim blaming and such…really puts me in my place when i need to be

  5. Nightingale
    Posted November 29, 2007 at 1:41 pm | Permalink

    I want to know when the US will do something like this.

  6. whitelabcoat
    Posted November 29, 2007 at 1:46 pm | Permalink

    Yes, it sounds like a good start; and, maybe, once these myths get legal recognition as such, they might just start to be recognised in the same way in the wider world.

  7. Posted November 29, 2007 at 2:09 pm | Permalink

    I’m on the fence with this. It’s great that people are going to learn more about how victims are affected by rape. On the other hand, I think it might sway the jury in favor of the alleged victim. This might lead to more convictions, but how many of them will be wrongful convictions because, even though the debriefing doesn’t reveal information about the current case, the jury assumed from the debriefing that every alleged rapist is guilty? Jurors enter the courtroom with a load of assumptions. Personally, I would probably walk into the courtroom already assuming that the alleged rapist was guilty, but I wouldn’t get debriefed with information telling me that’s not necessarily true. If a juror believes that some rape victims ask for it if they’re drunk or dressed a certain way, while a false and horrible belief, it’s their right to think that way. It’s the job of the witnesses and the prosecuters to convince such a juror otherwise. Why not have the people who are compiling the information for a debriefing as expert witnesses? You can’t legislate beliefs. A conviction rate of 5% is pathetic, but I don’t want a higher conviction rate to come at the expense of justice.

  8. Persephone
    Posted November 29, 2007 at 2:30 pm | Permalink

    This is a wonderful step in the right direction.
    And Nightengale, I agree 100%, we need to do this in the US as well. I actually had to explain to my boyfriend why having sex with a drunk person is rape, even if they happen to be saying yes. His response?
    “Well then people shouldn’t get drunk if they think they might do or agree to something they wouldn’t normally do sober.”
    UGH! That’s not the point! The point is that men should not rape women, or anybody for that matter!

  9. sgzax
    Posted November 29, 2007 at 2:32 pm | Permalink

    No, FEMily. This is not intended to give accusers an edge. There is a documented problem (5% conviction rate) with people NOT BELIEVING that rape is actually a crime. With people believing that there are any number of extenuating circumstances that override the issue of consent. The purpose of this is to even the playing field again and hopefully get people to a place of neutrality that will enable them to make just decisions. They aren’t doing it right now, unless you believe that 95% of the rape cases brought to the English court are being brought to court by liars.
    Is that what you believe?

  10. sgzax
    Posted November 29, 2007 at 2:35 pm | Permalink

    Also, judges give instructions to juries on how to come to decisions all the time. It is not a change in the justice system for jurors to get instructions. It is standard practice, and in this case it is an intervention that is obviously long overdue.

  11. Posted November 29, 2007 at 3:42 pm | Permalink

    No, FEMily. This is not intended to give accusers an edge. There is a documented problem (5% conviction rate) with people NOT BELIEVING that rape is actually a crime. With people believing that there are any number of extenuating circumstances that override the issue of consent. The purpose of this is to even the playing field again and hopefully get people to a place of neutrality that will enable them to make just decisions. They aren’t doing it right now, unless you believe that 95% of the rape cases brought to the English court are being brought to court by liars.
    Is that what you believe?

    Did I say that at all? No. In fact, I said “A 5% conviction rate is pathetic,” so make an effort to understand before you make accusations. I believe that debriefing the jury before any trial is wrong. The people who are doing this mean well, and even though it’s not meant to sway anyone, it very well could. And this could lead to debriefings by people with not so good intentions. The so-called men’s rights activists can debrief jurors before a domestic violence trial and say, as they often do, that women abuse men in relationships more often than men abuse women. Now, anyone with a mission has a legal right to debrief any jury to make sure that the jury goes in the courtroom with a certain set of opinions, and that’s not what I want.

  12. sgzax
    Posted November 29, 2007 at 3:53 pm | Permalink

    This is not a briefing about political issues or personal beliefs. This is a briefing explaining the law to people and the way that the law understands rape. So they have an informed basis from which to come to a conclusion. It really isn’t controversial at all.

  13. Posted November 29, 2007 at 4:02 pm | Permalink

    Britain to Create Guidance for Juries Regarding Rape

    In Britain, a panel of experts will create guidance for juries regarding "how rape victims typically respond in an attempt to dispel ‘rape myths’ which ministers believe are contributing to plummeting conviction rates for the crime," accordin…

  14. Posted November 29, 2007 at 4:04 pm | Permalink

    Personally, I would probably walk into the courtroom already assuming that the alleged rapist was guilty, but I wouldn’t get debriefed with information telling me that’s not necessarily true.
    Well, actually, FEMily, you would. The burden of proof in criminal cases makes convictions nearly impossible, and jurors are given a series of instructions at the end of the trial before they deliberate to reach a verdict. One of those instructions is that jurors are to assume that the accused is NOT guilty UNLESS the prosecution has made a rock-solid, unassailable case for guilt. That’s much stronger than a presentation explaining what rape means and why it isn’t made up or all in accusers’ heads.

  15. Posted November 29, 2007 at 4:16 pm | Permalink

    Moderately Insane: On Rape Conviction Rates–don’t stop at the courts

    … The first category represents ways in which the courts and the court system are failing rape victims. That could best be summed up as “if the victim is telling the truth, this would be a crime.” Since rape victims are not any more prone to lying than anyone else…
    The second category represents ways in which the legislature is failing rape victims. This category is simple…

  16. Posted November 29, 2007 at 5:46 pm | Permalink

    Check out this study, FEMily!, maybe it will change your mind.
    In any case, you’re right that everyone has a right to their beliefs. But not everyone has the right to use their beliefs and biases in a court of law to decide whether or not someone is innocent or guilty, or if the evidence is compelling to decide that it wasn’t “really” rape because the survivor doesn’t cry or because the guy bought her dinner. Would you feel comfortable with a jury in a murder trial going in feeling like “well, if you piss a guy off, what do you expect?” I should certainly hope not. But jurors go into rape trials ALL THE TIME thinking “well, if she wears something that skimpy, what does she expect?” It’s a matter of jurors understanding the nature of the crime that they are making a decision about. This is imperative to justice, and currently this does NOT happen with rape trials.

  17. Sailorman
    Posted November 29, 2007 at 5:59 pm | Permalink

    Well, you can’t level a playing field by piling dirt on both sides; this obviously is designed to give accusers additional power, albeit deserved power.
    It’s a good step, but it’s not an “equal across the board for accusers and defendants” step–which it CAN’T be, because you need to take differential action if you’re going to rectify inequality. So best to admit that the thing is detrimental to the accused but is justified anyway.
    I like the concept. It makes me a tiny bit squeamish, I confess, mostly because the line between “dispel rape myth” and “convince jurors of a certain point of view” might be a bit murky to define, ya know? In reality though I’m less worried w/r/t rape, because the scale is so clearly slanted in the other direction.

  18. Fenriswolf
    Posted November 29, 2007 at 10:38 pm | Permalink

    Now, first of all I think this is absolutely amazing and I hope we have something like that instigated here (NZ).
    But OT or not: WTH??

    I actually had to explain to my boyfriend why having sex with a drunk person is rape, even if they happen to be saying yes.

    Hold on YogiDanielle, are you saying that no one should have sex when drunk? I happen to like having sex when drunk, and sometimes with strangers. I agree that positive consent, not just a lack of “no” is doubly important when alcohol is involved but I would be really pissed off it drunken sex became illegal. I mean… Really?!
    I had sex with a guy I knew from my old workplace, who was leaving the country. I was so drunk I don’t remember it properly, but I remember instigating it, and having ultra-no-strings sex was stress relief I hadn’t even realised I’d needed at the time!

  19. Posted November 29, 2007 at 10:42 pm | Permalink

    To sgzax
    Telling people that rape victims don’t always immediately report the rape isn’t about the law. The jury is being debriefed about how some of the things about rape they’ve heard are myths. Like I said, expert witnesses should be called to the stand to make testimony about how popular belief about rape is false. And of course I would love for all of the world to treat rape as a horrific crime and not something that women ask for. I just don’t think the place to learn that is right before a rape trial because I think it could sway the jury.
    To TheLawFairy, I meant I’d think the alleged rapist is guilty walking into the courtroom before hearing the trial, not walking into the courtroom after diliberation. Therefore, I’d be just as guilty of bias as the jurors in the UK and Australia. Sorry I didn’t make that clear.
    To Cara. The article you told me to read was frightening, and I think the idea of only having a judge preside over rape trials is a good short-term solution as well. I just don’t like the idea of people being debriefed before a trial because I think it can sway the jury. They’re not simply being debriefed on the law, but they’re hearing results of studies regarding the behavior of rape victims. Any anti-woman organization can now use their statistics to debrief a jury about abortion or domestic violence or even rape to achieve their agenda. And you know that facts and data can be manipulated to create any statistic to match your ideology. I’m reminded of pre-abortion counseling. “Abortion stops a beating heart” and “At the moment of conception, a fertilized egg already has all its DNA separate from every person on Earth” are accurate statements that could sway women from making a choice that is truly theirs. Now imagine if that was said to a jury before a trial regarding abortion. I find that idea horrifying.

  20. Tim
    Posted November 29, 2007 at 10:59 pm | Permalink

    It is difficult to prosecute most cases where the question is whether the accused reasonably manifested her assent to sexual intercourse because it becomes a credibility contest. Consent in ANY type of case is difficult to try, whether it be rape or even a breach of contract (where the burden of proof is much lower). In the old days, far fewer claims of “acquaintance rape” were brought because society was more tolerant of abusive behavior among intimates, thus accounting for the higher conviction rates in the old days. Now, however, “acquaintance rape” claims constitute the predominant type of rape claim. Rape by strangers, we are told, is on the decline, and thank goodness. The law enforcement community’s willingness to bring more acquaintance rape claims is, of course, an indication of far greater respect for the rights of women, thankfully. But in a typical case of acquaintance rape, DNA will not help resolve the question because the sexual act is admitted, and there are no other witnesses.
    If, hypothetically, the jury has a 51% belief that the accused was truthful that she did NOT consent, there is still reasonable doubt and the accused must go free, even though it is more likely than not that he is guilty. This is consonant with the maxim that it is better to free 100 guilty men than to send one innocent man to prison. (If you doubt this, read the bios of the hundreds of men freed by the Innocence Project — hardly a conservative organization — on its Web site. These men spent years in prison for crimes they did not commit, usually rape. The stories are heart-breaking.)
    So a jury faced with a question of whether the accuser consented must, of course, weigh the surrounding circumstances of the parties’ relationship; e.g., whether they previously had consensual sex, how often, under what circumstances, etc. They will examine text messages, emails and anything that connected the two. These questions always put our juries in a difficult situation, but it’s the best we can do.
    We can’t rely solely on criminal prosecutions to deal with rape since it is highly questionable whether rape convictions are a deterrent. The real battle to reduce rape must start in grade school via education, by being up front with our boys about the absolute necessity to respect women. And girls must be instructed that they have the absolute right not to be violated. And teens need to be taught to be honest with other.
    And incidentally, if a reasonable man would know that a woman is too intoxicated to consent, he can’t enter into a contract with her and he certainly can’t have sex with her. Moreover, his own drunkeness is not a defense. These principles are not borne of misandry or a desire to exact more rape convictions, they are fundamental legal principles that have been around for hundreds of years.

  21. Marissa
    Posted November 29, 2007 at 11:08 pm | Permalink

    I used to volunteer for a domestic violence and sexual assault crisis center, and during my training, one story really stuck with my. One of my fellow trainees told us that she was recently a jurer on a domestic violence case. She said that before the trial, they eliminated all potential jurers who had any previous education about domestic violence. That way the jury only consisted of people who would have been subject only to popular mysogynistic notions of victim blaming, and have no knowledge about how all of these are myths constructed by our patriachal society….
    My second account is about trials in the U.S. that have excused the jury while the specialists on domestic violence gave a presentation on cycles of violence to dispell these common myths. And the jury wasn’t even given access to this information.
    in other words, when is this coming to the U.S. If anything we seem to have an idea of “protecting” jurers from informaton that might dispell the popular myths when it comes to domestic violence and sexual assault.

  22. Marissa
    Posted November 29, 2007 at 11:14 pm | Permalink

    Sorry about the typos. It’s been a very hard day…

  23. EG
    Posted November 29, 2007 at 11:45 pm | Permalink

    Tim, I hear what you’re saying, but when you say that “girls must be instructed that they have the absolute right not to be violated,” I can’t help but shake my head.
    If what the rest of what you’re saying is true, we don’t. A right that nobody is willing or able to enforce isn’t much of a right at all. In an acquaintance rape case, from what you say, I don’t have the absolute right not to be violated if I’ve had a relationship with the violator, if I’ve had consensual sex with him on several occasions in the past, if we’ve been in close contact.
    And all of that is contingent upon juries believing that there is a “reasonable” belief that women put themselves through trials by lying about rape when really they had sex.
    So I understand what you’re saying, but if what you’re saying is true, then in fact we do not have the absolute right not be violated.

  24. EG
    Posted November 29, 2007 at 11:49 pm | Permalink

    As a PS, I’m also not convinced that sending rapists to jail is something we do out of a desire to deter other potential rapists.
    I mean, obviously, that’s part of it. But what about getting those assholes out of society, and protecting women from the rapes they would be committing if free? What about giving the rapist a criminal record so that his future life is made difficult?

  25. AnnaSoror
    Posted November 30, 2007 at 12:28 am | Permalink

    Could someone with a legal background explain the procedure behind picking potential jurors? What criteria are most commonly used, and what criteria (if any) are not allowed to be used? Marissa’s story above made me wonder how much bias comes from the way both sides try to stack the juries to their advantage. How does the handout issue look in this context?

  26. oenophile
    Posted November 30, 2007 at 2:33 am | Permalink

    As a PS, I’m also not convinced that sending rapists to jail is something we do out of a desire to deter other potential rapists.
    EG, that’s part of it. It doesn’t have to be the only reason, the dominant reason, or the reason accepted by most people to be part of the overall rationale.
    In almost every other area of law, we understand that penalties deter people. First Amendment jurisprudence discusses the “chilling effect” of the mere potential for prosecution or fines upon free speech.
    I cannot believe that jail time would not convince men that rape is a serious issue, and, as such, they ought to be vigilant in avoiding it. I think that rape is the second-worst crime imaginable; second only to murder. Yet, I don’t think that all people who do it are necessarily bad; they live in a society that condones bad things. Slavery was pure, unadulterated evil; yet, not all slaveowners were the Hitlers of the world. They lived in a society that gave them moral sanction for their actions.
    Men are undoubtedly selfish and heartless when they have sex with a woman without enthusiastic, unequivocal consent. Do they have the same psychological make-up of someone who gang-rapes a woman he’s never met? Maybe. Is the effect upon the woman the same? Damn straight it is.
    Incarceration for rape sends the clear message that the act of sex is not always benign; that, regardless of motive (i.e. to bring the worst of hurt to someone, or to get off when drunk and idiotic), the harm is the same. We don’t not punish drunk drivers who kill people because they didn’t mean to kill someone; we punish drunk drivers with all we have because we want to send the message to every person out there that drinking and driving is too big a risk to take.
    I don’t know how to re-write this to be clear that I don’t see acquintance rape as any less horrible than stranger rape; I’m just saying that the psychology of the people is different.
    I want to live in a world where a guy who is about to screw a woman, absent her explicit, happy, enthusiastic consent, thinks in a small corner of his brain, “This could be okay… wait a minute, twelve people and a judge could decide that what I’m about to do is so horrible, dehumanising, and damaging to this young woman that they would send me to jail.”

  27. Ruth
    Posted November 30, 2007 at 7:18 am | Permalink

    Tim:
    Several points about your comment;-
    1. The ‘he said/she said’ problem that you have to give the accused ‘the benefit of the doubt’ when accuser and accused contradict each other. Why is this not a problem in other cases, when the prosecution’s case rests heavily on a single witness, whose evidence is contradicted by the defendent? Because, in ALL cases APART from rape, a witness is assumed to be telling the truth, UNLESS the defence can show good reason to assume that he/she is lying.
    2. What has previous consensual sexual realations and/or behaviour of the victim got to do with WHETHER SHE IS LYING? The jury are not trying to decide whether she would have been likely, in the circumstances, to consent to sex with the accused. They don’t need to guess that, since she has already told them that she did not. What they have to decide is whether or not she is telling the truth. What you appear to be suggesting is that any previous consensual sexual relations with the accused make it more likely that she is lying. That makes no sense, unless you are suggesting that ‘loose’ women are more likely to lie than ‘chaste’ ones, which I am sure was not your intention.
    In fact, your whole comment strikes me as a textbook example of the very myths that this suggestion is attempting to combat.

  28. Sailorman
    Posted November 30, 2007 at 8:31 am | Permalink

    Ruth, I’ll put on my lawyer hat for a moment and try to answer you. Please remember that I’m trying to explain as requested; I’m not a rape apologist.

    1. The ‘he said/she said’ problem that you have to give the accused ‘the benefit of the doubt’ when accuser and accused contradict each other. Why is this not a problem in other cases, when the prosecution’s case rests heavily on a single witness, whose evidence is contradicted by the defendent?

    You seem to be assuming it’s not a problem… but it IS a problem. Those cases are much harder to win. And incidentally, witnesses lie all the time.

    Because, in ALL cases APART from rape, a witness is assumed to be telling the truth, UNLESS the defence can show good reason to assume that he/she is lying.

    Again, this is simply not accurate.
    Also, you’re using the word “witness” here. A witness is generally not the accuser. While it is true that a hypothetical i-was-just-walking-by witness has no particular reason to lie, juries and judges alike are aware that people “on a side” are usually trying to get their side to win.
    Really, witnesses lie. All the time.

    2. What has previous consensual sexual realations and/or behaviour of the victim got to do with WHETHER SHE IS LYING? The jury are not trying to decide whether she would have been likely, in the circumstances, to consent to sex with the accused.

    Of course they are. In fact that is exactly what they are doing.

    They don’t need to guess that, since she has already told them that she did not. What they have to decide is whether or not she is telling the truth.

    Correct. And if she is not telling the truth, then she may have, in fact, consented.

    What you appear to be suggesting is that any previous consensual sexual relations with the accused make it more likely that she is lying. That makes no sense, unless you are suggesting that ‘loose’ women are more likely to lie than ‘chaste’ ones, which I am sure was not your intention.

    I won’t judge anyones intention here. But I think the common perception isn’t taht “loose” women are more likely to lie in general, it’s that they’re more likely to have consented. That type of bias is what a good rape shield law is designed to prevent.

  29. Posted November 30, 2007 at 10:33 am | Permalink

    AnnaSoror, it depends on the specifics of the jurisdiction’s criminal procedure rules, but basically the way it works is that each side is given a certain number of challenges “for cause,” and each gets a certain number of peremptory challenges. So you’ll start out with a pool of potential jurors and start questioning them (called “voir dire”). If a juror says “I think all men accused of rape are guilty, because all men are rapists,” the defense will strike that juror for cause — i.e., because there is a legitimate reason why this person will be unable to make an objective, independent decision based on the facts. If defense counsel thinks women are more likely to convict, defense counsel may use one of its peremptory challenges to get as many women as s/he can off the jury, but won’t be able to have a woman dismissed for cause unless there is some rational reason underlying it (versus the attorney’s gut feeling that she will find the defendant guilty). So in other words, a “for cause” challenge requires a good reason. A peremptory challenge can be made for any reason whatsoever (with a couple of caveats — if the defense thinks the prosecution has race- or gender-based reasons for its challenges, the defense can require the prosecution to provide a race- or gender-neutral reason). For this reason, each side usually only gets a small number of peremptory challenges.

  30. Ruth
    Posted November 30, 2007 at 11:35 am | Permalink

    Ruth: The jury are not trying to decide whether she would have been likely, in the circumstances, to consent to sex with the accused.
    Sailorman: Of course they are. In fact that is exactly what they are doing.
    Perhaps I should have been clearer.
    They are not SUPPOSED to be deciding whether on not, in the circumstances, she would have been likely to consent. I do not dispute that, much of the time, that is what they ARE doing. That is the wWHOLE PROBLEM. They are not answering the question they are actually there to answer, but instead answering a different, completely irrelevent question.
    Whether a woman would be LIKELY to consent to sex is irrelevent to her reliability as a witness.

  31. Sailorman
    Posted November 30, 2007 at 1:00 pm | Permalink

    Ruth: sounds like we pretty much agree.
    But as a point of interest: if A says “I didn’t do ___” don’t you think that part of deciding whether or not you think A is telling the truth involves considering how likely you think A is to do ____? I’m not really sure how that is so different from figuring out whether A is generically “telling the truth,” which is why I think you and I are ultimately agreeing on this.
    If you want to look at it from the likelihood aspect, and understand why it makes sense, look at the accused for a moment. If he’s saying “well, folks, i didn’t rape her: she walked into my apartment, beat herself up, took a mickey finn for fun, and had wild and violent consensual sex with me before we both passed out,” part of what (I hope) will get him convicted is that the jury knows the above scenario is amazingly unlikely.

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