In May 2011, Ken Clarke caused outrage by remarks made in a media interview. When questioned about the tariffs received for rape convictions, he asserted
“A serious rape, with violence and an unwilling woman, the tariff is much longer … Date rape can be as serious as the worst rapes, but date rapes … vary extraordinarily one from another and in the end the judge has to decide on the circumstances.”
Implying that date rape isn’t serious, doesn’t involve violence or an “unwilling woman” is shocking coming from the Justice Secretary.
The extent of the problem
Based on combined data from the British Crime Survey and government surveys, only 15 out of every 1000 rapes end in conviction with the vast majority never even reaching a police station. However this conviction rate is likely to be an overestimate. The BCS obtains data on rape statistics on self-reports within a general survey using untrained interviewers and only from permanent domestic households. Studies have shown that survivors are often unwilling to name their experiences as rape; when detailed interviewing is done, prevalence rates of sexual assaults shoot up and that those in temporary accommodation are both more likely be and have been victims of sexual assault. It has been estimated that approximately 90% of rapes are not reported to the police, suggesting that only 0.5% are successfully prosecuted.
The astoundingly low reporting, prosecution and conviction rate coupled with the estimated lifetime prevalence rate of approximately 25% suggests that the justice system as it now stands is incapable of dealing with this epidemic. The common reactionary demands of hard sentencing and increased surveillance for convicted rapists are unlikely to improve this, for you have to be a very unlucky rapist to be amongst the tiny fraction who are actually convicted.
The media plays an important role in maintaining hegemony around the definition of “real rapes”. Most news coverage of rape features extreme violence, multiple assailants and in public places. At the same time a great many column inches are given over to women who are convicted of perverting the course of justice, once an investigation has collapsed. The message is clear a victim is bruised and bloodied, innocent in behaviour and demeanour. The rest are lying bitches.
Although handling of rape allegations has improved enormously over the past few decades, women are still treated less as victims than as a crime scene and a witness. Maximising forensic evidence collection takes priority over psychological needs while the adversarial nature of proceedings re-traumatises victims. When asked what motivated them to report the offence, most victims cite a desire to prevent the perpetrator re-offending. In a system where over 95% of reported offenders walk free, it is unlikely that the recidivism rate is significantly affected. Given the recent high profile gaolings of false accusers and a woman who withdrew her allegation, it brings into question if it is more likely that someone who goes to the police to complain of rape will be convicted of an offence than someone who commits rape.
How the justice system perpetuates rape myths
Debates around sexual violence must progress. It is no longer enough for women to rely on the justice system in its current form for protection against rape, as has shown itself clearly inadequate to fulfil this function. Over 7m women currently living in the UK will be a victim of rape in their lifetime – and there is no victim without a perpetrator. In a country where the majority of people believe that a woman can be held responsible for her assault through her prior behaviour, and most young men state that would force a woman to have sex if they thought they could get away with it – a new method of addressing sexual violence must be found.
There needs to be a root and branch rethink of how sexual assaults are handled in the justice system. The justice system as it currently stands serves to protect rapists. The narrative presented throughout the system is that rape is terrible but unusual crime, perpetrated by monsters and must always be punished to the full extent of the law. The truth however is that rape is horrifyingly common – one in four women in the UK will be raped in their lifetimes; that it is perpetrated by a wide range of men – over 50% of college students have expressed that they would be prepared to commit acts which amount to rape if they thought they could get away with it, and that rapists are rarely punished – approximately 0.5% of rapes are successfully prosecuted. If the justice system does not protect women from rape and does not punish transgressors, what purpose does it then serve.
The sad answer is that the justice system works to protect rapists, to promote rape myths through the defences presented, to abuse women by treating them as a crime scene rather than a victim and to re-traumatise them by forcing them to recount their assault multiple times.
Becoming a crime scene
If a woman has been raped and decides to report the crime, her body immediately becomes a crime scene. Forensic evidence gathering procedures are put in place. She is advised not to wash, brush her teeth, have a cigarette, eat, drink, change clothes, or go to the toilet to preserve physical evidence, despite these being for many an overwhelming urge which assists with coping with the trauma. The clothes she was wearing at the time of the assault will be taken and she will then undergo an internal and external forensic examination designed to gather evidence rather than provide her with medical assistance and any injuries, including intimate injuries will be photographed. Unless she is willing to wait on a female doctor, this procedure will usually be carried out by a male.
Once she has done being examined as a crime scene, she then becomes a witness for the state. She will be interviewed; asked to describe the assault in intimate detail, asked about what she had been drinking, what drugs she had taken, how the circumstances in which she was raped came about; what prior relations if any she had with her partner, asked intimate and embarrassing details of her sexlife and private relations. While major advances have happened over the past 20 years to make the interview less confrontational, it is regardless a major intrusion. Between the examination and the interview, the victim can expect to spend several hours in a police station reporting the assault.
The drama and narrative of the courtroom
If there is enough evidence to bring a charge, she will then appear as a witness for the prosecution in court, at the risk of being gaoled for wasting police time if she withdraws. In the vast majority of rape cases, the identity of the perpetrator is not under dispute, but a consent defence is lodged. Sucessful prosecution then relies on the jury believing the proscution assertion that she did not consent, as opposed to the defendants assertion that she did. It is thus the task of defence council to challenge the prosecution assertion of non-consent, asking her to re-live the trauma in front of strangers, asking her intimate and embarrassing questions about her life, while challenging her prior and post behaviour, demeanor, dress and relationship with the accused to indicate to the jury, that yes, she may have consented to sex with the defendant.
In the court room, rape myths are both played upon and reinforced by both the prosecution and defence. To gain a conviction, the prosecution will frequently emphasise the “good character” of the victim, passing off any indiscretions in alcohol consumption, flirting, prior relationships or non-mythlike post-assault behaviour as a blip in an otherwise unblemished victim, while the defence will seek to undermine her character to establish her as an unreliable witness. Convictions in rape cases frequently turn on the credibility of the victim – if the victim conforms to the expected stereotype, there is far more chance of a conviction, thus both prosecution and defence arguments take place within the narrative of how “a credible victim” behaves. The narrative in which the courtroom argument takes place simultaneously rests on and reinforces stereotyped behaviour.
The media and the feedback loop
The media may well report on the case. Although the victim is not publically identified to the wider world, in most cases within their circle of family and friends the victim will be known and intimate details of their lives and the assault may be played out on the pages of the tabloids. Where both the victim and the defendant are members of a definable community, the narrative played out in court has wider repercussions as the community and the families involved. The end of the court case, whether a successful prosecution is obtained or not, is not the end of the victims experience.
Conviction rates, for what is a very common assault, are astonishingly low and rape has a high stigma attached. On conviction, the perpetrator will frequently be denounced as a monster, on acquittal as a victim of a lying bitch. The monster narrative only serves to protect those who continue to rape with impunity, that friends and workmates don’t rape, only evildoers do evil; while the lying bitch narrative supports the narrative that rape accusations are made by vicious harridans that use the courts and the law as a means of getting back at former lovers.
The arguments played out in court, in the media and in the communities reinforce rape myths, by picking over the victims behaviour, relationships, dress and demeanour, looking for chinks in the moral code which would demonstrate a “lying bitch” status. Any such discovered chink – more sexual relationships than might be considered proper, a willingness to engage in sexual intimacy with the accused, dress suggesting sexual availability, behaviour that indicates that she may not be appropriately traumatised will be pounced on by those who would defend the accused and repeated to undermine her credibility.
The state has a interest in moderating behaviour, and it is only the “good” victim that the state will protect, as it protects their narratives. When there is a “bad” victim, who hasnt played by the state’s rules – taken drugs, got drunk, entered the country illegally, the state will not protect them – the state has far more interest in protecting the rapists – the fine upstanding IMF executives, police officers, authority figures, nice neighbours, lovely sons and adoring husbands. The modus operandi around sexual violence in the justice system less about protecting women, than about controlling them, making sure that they know that they must behave in state sanctioned ways or they are liable to be fucked at will.
But what is this credibility really? Consent is the most common defense lodged in rape cases and it is therefore for the prosecution to determine “beyond reasonable doubt” that the victim did not in fact consent. Given that 0.5% of rapes end in conviction, most never reported, many never reaching it to trial that barrier of proof of non-consent is clearly a major one. It is clear that the justice system assumes women to be in a perpetual state of consent, and it is for the crown to demonstrate that was not the case and that a crime occurred.
The radical idea that women dont exist in a perpetual state of consent
One major change which would instantly transform the manner in which rape is treated is to completely turn that on its head. That women do not consent to sexual activity – that if a woman reports rape, and there is evidence to suggest that sexual intercourse took place that is sufficient for conviction. A consent defence could still be lodged, however it would require evidence from the defence that the defendant had obtained consent rather than evidence from the crown that the victim denied it. Consent is not only a defence against prosecution from unlawful sexual intercourse, it also protects those who assault others with their consent (such as in boxing), or those who take others possessions with their consent (such as in gifting). The difference with (physical) assault, and theft is that if someone approaches the police with an accusation, there is no automatic assumption of consent to the act. It is rare in cases of theft that a consent defence is raised, as it is assumed that people do not generally consent to others taking their things, and if they have they are unlikely to approach the police afterwards.
Objections have been raised to such an idea – it renders the whole idea of “innocent until proven guilty”, however that is only valid if you consider that you assume consent is the default state and that it is for the prosecution to prove a lack of consent, rather than for the defence to prove that consent was in place.
There would be none of the ridiculous discourses that surrounding the Dominque Strauss Khan and Assange cases, where despite bloody obvious signs of non-consent – bruising and semen being spat on walls in the first case and a woman who was not conscious to give consent in the second – a consent defence is still being used – on the basis that the state cannot prove that they did not, and legally the default state for women is that of perpetual consent. In a rape case, where consent is invoked as a defence, it is for the state to prove “beyond reasonable doubt” that she did not consent. If on the other hand, it was assumed that the default state was that of non-consent, it would only be for the defence to determine that there was reasonable doubt about there was consent, a much less onerous task. Consent in what is a very private act is a particularly hard thing to determine one way or the other, however shifting the onus from the state proving that the woman did not consent to the defence introducing a reasonable level of doubt that she did is a much stronger shift.
…but, …but, …but
A number of people have been horrified by such an idea – but there are crazy women, vindictive women, jealous women out there who comprise the lying bitches – women will seduce men then report rape, they cry. Women will consent prior to sex, then report their lovers to the police. Women will use it as a tool to get back at men after a falling out. But ultimately, if sex has taken place and the woman is sufficiently clear that consent was not there within 48 hours (which is as long as forensic evidence lasts, with the longer the time elapsed, the less chance of effective forensic evidence), what is that if it is not rape. As outlined above, making an allegation of rape isn’t a pleasant process. First off, there would have to be corroborative evidence of sexual activity taking place, such evidence would only available for up to 48 hours after the fact, so an allegation would have to made within a very short timespace. Secondly perhaps men should just be a hell of a lot more careful to get consent – genuine consent, before sexual intimacy. Currently 99.5% of all rapists face no consequences, primarily because the onus is on the state to prove that the accuser is a victim and not a lying bitch. Changing the emphasis to prove that there is a possibility that the accuser might be a lying bitch is hardly a high standard of proof, given the preponderance of rape myths. Such a change will not immediately raise the rate of successful prosecutions, what it will do is make prospective rapists think very carefully about about their next attack.
But again – what of the crazies, the vindictive and the jealous? How does a man protect himself against the real lying bitches? The answer is not all that obscure. If you think that there is a good chance that your prospective lover is sufficiently mentally unstable as to go to the police afterwards to allege rape after a consensual sex, then perhaps she is insufficiently mentally stable to consent to sex…so don’t sleep with her. If you think that your prospective lover is so jealous that she will report you to the police for rape if you look at another woman within 48 hours of you having sex with her, perhaps you shouldn’t sleep with her. If you think that your prospective love is sufficiently vindicitive that she will report you for rape to get back at you….then perhaps you shouldn’t sleep with her. Or if you really must sleep with the crazies, the jealous and the vindictive, be bloody nice to them for 48 hours afterwards, being supportive of their mental health problems, understand their issues of insecurity and give them no cause to get back at you for at least two days. Its not really that hard.
The most onerous burdens that such a change would engender would for men to be more careful about gaining consent for sexual activity, to avoid sleeping with women who they probably shouldn’t and if they do be nice to them afterwards.
Would that really be so bad?
Abbreviated version first published in Scottish Socialist Voice Issue 374 on 27th May 2011
Full version first published on Village Aunties on 2nd August 2011