Over the last 12 months, the defence lawyers’ outrage has spilled out into the media — with the most senior woman at the Scottish Bar comparing the proposal to Adolf Hitler’s scrapping of juries after the 1933 Reichstag Fire trial. That the debate has become so acrimonious can be partly explained by the context in which it is unfolding. The pilot is just one of a panoply of proposed reforms — which include scrapping the Not Proven verdict, reducing the number of jurors from 15 to 12, and setting up a specialist sexual offences court. And it coincides with an exodus of defence solicitors, after dramatic cuts in the Scottish government’s funding of legal aid.
One lawyer, who did not want to be named, pointed to the fact that criminal defence solicitors earn far less than those working for the prosecuting authority — even though the former work longer, more unsociable hours. “It’s not just that defence solicitors feel they are being screwed — although they are,” he says. “It’s the visible reality that the whole justice system is in ruins.”
So, resentful as they are about their own plight, defence solicitors may be predisposed to oppose a reform that will change the way their clients are represented — and on which, they insist, they were not properly consulted.
But the juryless rape trial pilot is also caught up in the backlash to the #MeToo movement. Some defence lawyers I spoke to believe the pendulum has already swung too far in favour of rape complainers, and that “special interest” organisations such as Rape Crisis Scotland — and, in particular, its chief executive Sandy Brindley — are pursuing a feminist agenda.
For their part, feminist campaigners accuse the Faculty of Advocates of misogyny. They cite, for instance, its failure to adequately deal with lawyers such as Brian McConnachie KC — who in 2020 said in a text that he “might shag [Sandy Brindley], just to have something over her”.
McConnachie also sent a sexually explicit photograph of himself from the toilets of a High Court — shortly after defending a rape accused. It took three years for him to be fined £8,000 for professional misconduct. He was not suspended from practising as a lawyer or expelled from the Faculty.
There are many legitimate questions to be asked about potential juryless rape trials. It’s unsurprising though, that for some, the legal profession displays a “nothing-to-see-here” attitude that smacks of complacency.
Appearing before Holyrood’s justice committee in January, the Lord Advocate delivered a damning assessment of the experience of rape complainers: “What is happening at the moment just isn’t good enough,” said Dorothy Bain.
“All the efforts made over the years to bring in changes, such as the rape shield provisions … and supportive measures for vulnerable witnesses — none of that has shifted the dial on the basic problems: complainers’ anxiety about becoming involved in any way in the criminal justice process … and a lack of understanding and support that leaves them feeling abandoned.”
The Lord Advocate said “the ordinary adversarial approach” was not suited to sexual offence cases and referenced an appeal court judgement from 2020 — in which the complainer had been awarded damages for trauma caused by serious deficiencies in the way the trial was carried out. Scotland’s most senior judge, Lord Carloway, criticised the judge, the Crown and the Defence, adding that the woman had been subjected to repetitive, and at times irrelevant, questioning, without any intervention.
It was in this context that Lady Dorrian’s Review was set up, and her recommendations made. Of these, the pilot of juryless rape trials proved the most controversial. The research that informed it was contested. Analysis of the deliberations of “mock juries”, carried out by academics from Glasgow and Warwick Universities, found “considerable evidence” of jurors expressing unfounded assumptions. But a UCL study — which involved “real” jurors later completing a “rape myth” questionnaire — found that claims of bias in judging sexual offences cases were “not valid”. The two studies have been pitted against each other, though all that this contradiction demonstrates is the difficulty of gathering conclusive data when you are legally prevented from interviewing actual rape trial jurors about their actual deliberations.
Many of the details of the pilot — including its length and how it will be evaluated — are yet to be determined; but, if it is passed by Parliament, juryless rape trials will be used for all cases involving a single complainer and single accused.
The conviction rate for such cases is thought to be around 25%. Brindley, of Rape Crisis Scotland, claims this statistic shows “guilty men are regularly walking free”. She points to research from New Zealand showing that defence lawyers would opt for a jury nine times out of ten, because, when it comes to the credibility of the complainer, “it is easier to persuade a jury to entertain doubt”. This is not so very different from what Ross has told me; but while he views the caution of jurors as a crucial protection for the accused, Brindley views it as a barrier to securing justice for complainers.
“While Ross views the caution of jurors as a crucial protection for the accused, Brindley views it as a barrier to securing justice”
Another potential benefit of the juryless rape trial would be the requirement that judges provide written “reasonings” for their decisions — something juries are not asked to do. The impact of such reasonings has already been seen in the three civil cases, in which the sheriff or judge’s explanations brought clarity and closure. “I was badly affected by not understanding why the Not Proven verdict had been given in the criminal trial,” Miss M says. The sheriff in the civil case found Coxen guilty on the balance of probabilities. “The judgement helped me understand what evidence had been considered important, and the thinking behind his decision.”
Defence lawyers on the other hand argue that judges are as likely to have unconscious biases as jurors — perhaps more so, given the narrow and socially-conservative demographic from which they are drawn. This is something that worries some complainers too. “The majority of judges are middle-aged, privately-educated men,” defence solicitor Matthew McGovern says. “This is significant when it comes to the type of single complainer/single accused rape cases the pilot is seeking to address, because those types of nights out, where there is alcohol and drugs consumption, are far removed from the lives judges have lived.”
Of even greater concern to McGovern, who is on the SSBA committee, is the possibility the pilot will place undue pressure on judges to return guilty verdicts. He believes this pressure would come not just from politicians — who might measure the success or failure of the pilot by its effect on the conviction rate — but also from public opinion, via the media.
“Juries are anonymous,” McGovern says. “Judges, on the other hand, are high-profile figures with accountability, but no right of reply. If they acquit ‘too many’ people, there will be FOI requests and front-page stories.
“I’m not suggesting those judges will be sitting there with a calculator working out how many people they should acquit and how many they should convict; but it will become an unconscious bias, which, ironically, is the very thing the pilot is seeking to address.”
Moreover, a lack of financial capacity means Scotland’s proposed juryless rape trials would be presided over by a single judge, rather than the panel of judges adopted in other jurisdictions that have dispensed with juries — most recently France. Simon di Rollo KC, who represented Miss M at her civil case, is one of the few advocates to broadly support a time-limited pilot — yet even he thinks a single judge set-up is less than ideal. “We all have our idiosyncrasies, and one person won’t necessarily spot everything,” he says. “The opportunity to discuss [the case] would obviously improve the decision-making process.”
With the Law Commission of England and Wales also proposing the introduction of juryless rape trials, the progress of the Victims, Witnesses, and Justice Reform (Scotland) Bill is being closely followed south of the border as well. Whether the pilot actually happens will depend at least in part on the Scottish government’s willingness to take on the SSBA — which is bent on a showdown. “No client of McGovern Reid will ever be exploited as part of a social experiment to satisfy the demands of the Special Interest Groups,” McGovern’s pinned tweet says.
“I think this is the hill [defence lawyers] are going to die on,” says Brindley. “You have to ask yourself what it is that they are scared of? Do they not trust judges to be able to evaluate evidence or is it that they trust judges too much to evaluate evidence and they worry there will be fewer acquittals?”
McGovern is clear his main fear is that the last remaining protections for his clients will be removed. He also fears the politicisation of the justice system will lead us into dark places. He says you only have to look at America to see what’s at stake: “Trump has politicised and weaponised the entire system; only anonymous juries have stood up to him.”
When I ask him if sabotaging a pilot passed by the Scottish Parliament would, in itself, be undemocratic, he insists the opposite is true. “First of all, [defence lawyers] are not compelled to try to make the best of what we consider to be poor legislation,” he says. “But also, we have concerns about the politicisation of the judiciary undermining the rights of ordinary citizens, so we think we are protecting democracy.”
Judge-only rape trials have the potential to forever change the Scottish legal system. Once juries are no longer inviolable, what’s to stop them being removed from other types of trials, such as those involving domestic violence, in which many of the same arguments would apply? No wonder the legal profession is so exercised. And yet, perhaps they do hold the answer to the problem Bain identified: the reluctance of many rape complainers to come forward, and the retraumatisation of those who do. We won’t know, unless the pilot goes ahead.
“Everyone keeps saying it’s not a fair trial without a jury, but I didn’t feel I got get a fair trial with a jury,” Miss M says. “When people say the name of the advocate that cross-examined me in the criminal trial it takes my breath away more than when they say ‘Stephen Coxen’.
“I know how much better the civil case, without the theatrics, was. It feels ridiculous that some lawyers aren’t willing to at least give the pilot a go.”
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SubscribeI’m frankly baffled why anyone is surprised that the conviction rate for rape prosecutions (51%) is lower than that for all prosecutions (92%) ?
This is stated as though it proves that there are a lot of men “getting away with it”. But does it ? And does it mean that we have the balance between protecting the innocent and convicting the guilty wrong here ?
Why would we expect these rates to be the same ? In most criminal cases, there are more than two people involved and there’s much more definitive evidence. Presumably in most rape cases it’s one person’s word against anothers. Far more difficult to prove beyond reasonable doubt.
It could also be that prosecutors are bringing too many weak cases to court. I’m not saying these aren’t necessarily valid cases. But if they cannot be proved in court beyond reasonable doubt and this is reasonably known in advance, should they be prosecuted ?
In very recent memory, we have seen innocent men nearly convicted of rapes they did not commit based on false evidence and over-zealous (I’m wording that generously) prosecutions. False accusations are sadly a fact and not a “myth” as the article implies.
It’s not difficult to see such well-intentioned initiatives resulting in unsafe prosecutions.
The lower conviction rate almost certainly does mean that men are getting away with it. But that is, like you say, because it’s very difficult to prove beyond reasonable doubt when it’s almost always away from anyone else.
No it does not, many convictions are for minor offences, many are clean ups by persistent defendents.
Most of the men who are “getting away with it” did not use physical force, and are accused by women who a) willingly accompanied him to a room and/or b) willingly slept with him while drunk,
And those women decided later that, on second thoughts, she would have preferred not to. And expect courts to ditch standard benchmarks of evidence and law to convict those men based on flimsy evidence or those women’s dubious testimony.
So, the question is, millions of women also sleep with men who were drunk – and lots of men later decide they would have rather not done the deed with those women.
Are we going to imprison those women for “rape”? And if not, are those women “getting away with it?”
After drinking alcohol women are assumed to be too helpless to have agency while equally inebriated men are so superior that they have agency for both.
When men and women have been drinking, it’s the woman who is assumed not to be able to consent to sex while the man remains fully responsible, even when both are equally inebriated. Any sex that ensues is statutory rape and the man is the guilty party.
In effect, women are officially being defined as less capable than men. They are treated like children.
I think it’s got more to do with the fact that men on the whole are physically stronger than women, and thus able to overpower them, whereas women’s strength might not be sufficient to resist and get free. This may be debatable in a situation where the man is also drunk, but may not be considered by jurors.
I think that was the case in the past, and in some rape cases still is, but many hinge on whether consent was given, not on whether force was used.
If the man was drunk too, he was presumably equally unable to consent.
Firstly, full marks for reading my comment properly rather than using it as an excuse to go off on an anti-feminist rant.
Secondly – yes if the man was also drunk then he too would be unable to consent. There must be a lot of cases where people get totally plastered and end up in bed having sex with someone, neither party explicitly consents and nobody is harmed. I might be female, but I have no interest whatsoever in seeing innocent men being convicted of a crime.
Ha ha – I try! And yes the concern is that one of the parties ends up in prison, or with their life otherwise ruined over a silly, drunken mutual mistake. Or something that seemed like a good idea at the time.
It’s rather obvious if a man is unable to consent!
No, not always. Some men can be black-out drunk but still up to the task.
“got more to do with the fact that men on the whole are physically stronger than women”
This is a superficial, false reasoning for multiple reasons.
Firstly, men are stronger, but (especially in West Europe, and to some extent in other Europe, India and East Asia) taught not to be violent against women. That’s why most male violence is against other men. A tiny % of men who are vicious repeat offenders, account for the vast majority of genuinely violent rapes.
Secondly, rapes involving violence are easy to find evidence and convict. The issue is that these changes in the law are directed at non violent “regret” rates. Why do you think the so called rape rates in colleges, per feminists, are so high? A v small part of that is violent rape, and most of them are get drunk, he didn’t even text me day after, hence rape. Which is precisely the point, that other way round, a man would be laughed at for claiming “rape”.
Thirdly, you cannot build a society based on “equity” and the assumption that women are equally strong, whether military, sports, etc, and then claim to be “weak” when convenient.
Actually, scratch that one. Of course you can. That hypocrisy is the central tenet of modern women and Schrödinger’s feminism, weak and helpless, strong and brave, pick whenever option is convenient at any point.
I’ve never claimed that women are weak according to convenience. I was merely speculating that a jury might believe it and base its decision on that belief. If I am proven wrong on that, I don’t care as I have no axe to grind.
As for equity, women are half of the human race and are entitled to the same rights as men enjoy. Physical strength is irrelevant in that situation.
“entitled to the same rights as men enjoy.”
Feminists seem oddly disinclined to assert those rights in case of muslim communities.
But they are happy to gaslight other, typical men using statements like that.
No man. Not even a single man I know. Has ever said anything that might be construed even close to that.
And no, equity is not equal rights.
It’s equal outcomes.
Except of course, in areas like nursing, school teachers, child custody, treatment in courts, military conscription…..
All a matter of whatever is convenient.
Equal rights is not the same as equality of outcome. I strongly support equal rights for women and would be prepared to fight if anyone threatened to take those rights away. Equality of outcome cannot be guaranteed, and I have never believed it could or should be.
It’s true that some feminists don’t assert those rights in the case of muslims, but I’m not one of them and neither are other women out there. It’s a sign of limited intelligence to tar everyone with the same brush.
Referring to military conscription is a red herring because in the UK we currently don’t have conscription. But were it to be introduced, I would be arguing long and hard for it to include females on exactly the same basis as males.
“A tiny percentage of men are repeat offenders” Where did you get that statistic?! Violence against women is over the top. Every minute a woman in the US is a victim of male violence.
Where did you get that statistic.
Since the 1960s people have been told ” If it feels good, do it ” , self restraint and self control has been mocked. The result is increased violence by people who cannot control their anger. If one adds alcohol and drugs to mixture, this increases violence even more.
In the 1950s CND marches were peaceful, the Anti – Vietnam Demonstrations were often violent. We have been told there is no connection between violence on a screen and real life. Historically outside of war violence by men was often against men, usually after drinking in a pub. Are more men prepared to undertake acts of violence against women than in the 1950s and is this because of a decline in chivalry?
This is the illogic of the Schrödinger’s feminist: A women who is simultaneously a helpless victim and strong and empowered… until something happens. At which point she chooses the state that benefits her the most.
You have failed to read and understand my comment properly. Suggest you look at my response to Samir Iker.
The “strong and empowered” does not mean physical.
An interesting case would be one in which the woman consented while drunk, but it was later claimed that she was too drunk to give such consent.
We cannot usually claim not to be responsible for our actions while drunk. If I am stopped for drunk driving, I cannot claim that I am not responsible because I was too drunk to make the sensible decision not to drive!
That isn’t strictly the case in UK law:
Intoxication, whether voluntary or involuntary, is not a defence per se. However, where a person is intoxicated through drink or drugs and commits a crime, the level of intoxication may be such as to prevent that person from forming the necessary mens rea of the crime.
Thanks for this. I assume it’s use would be exceptional.
Agency is indeed the key. The more agency women have in other arenas, the more they are expected to have in these situations. Nothing nefarious about that.
Yes, there is. Rape has to do with physical strength.
Sorry for being flippant, but that’s rape 1.0. Rape 2.0 is all about consent. No physical force is required.
Indeed, the idea that force must be used to overcome resistance for it to be rape is usually cited as a “rape myth”.
Any evidence for this William?
As I posted in an earlier comment with evidence from the Crown Prosecution Service (CPS):
“Research has shown that false allegations of rape are rare. A CPS report published in 2013 showed that over a 17-month period, there were 5,651 prosecutions for rape and, during the same period, there were 35 prosecutions for making false allegations of rape.”
And
“The evidence on false allegations fails to support public anxiety that untrue reporting is common. While the statistics on false allegations vary – and refer most often to rape and sexual assault – they are invariably and consistently low. Research for the Home Office suggests that only 4% of cases of sexual violence reported to the UK police are found or suspected to be false. Studies carried out in Europe and in the US indicate rates of between 2% and 6%.”
https://research.open.ac.uk/news/false-accusations-sexual-violence
So, I do not know what is the rate of false allegation but I have a few issues with the article you have linked us to. I know a little statistics but, I doubt, as much as the person who wrote the article. But, for what it’s worth.
The thing I am first concerned about is that despite claims in the article, I’m not sure that fraudulent allegations of sexual assault should be judged in the same way as other false accusations of other crimes. In a he said/she said case, we do not even know that an assault occurred especially if the assault occurred many years ago. This doesn’t men that such claims are false, just that they are pretty much impossible to count.
The second problem, is that statistics is terribly sensitive to how the data is chosen, what model is used and what is left in and left out. This doesn’t mean that it’s wrong, just that I would be a little caution in accepting this.
Thirdly, it doesn’t matter. Each allegation is against an individual. Even if 96% of claims of assault were true, it makes no difference to the man accused. He is either guilty or innocent, with probability 0 or 1. He cannot be 96% guilty.
I have a suspicion that too many men get away with sexual assault and I wish we could put them behind bars. I feel considerable sympathy for their victims, it must be a horrible experience. Of much less importance, I would also suggest that failing to punish men who harm women, does nothing for the rest of us who treat women with respect and courtesy.
From the same paper:
In most cases the police will not set out to prove that an accusation was false. In fact there are an enormous number of accusations made, which are later withdrawn or which never go to court where we simply don’t know if the accusation was false.
Going from memory here, but I believe the range of cases where the accusation is estimated false is from 2% to 30%, with different researchers suggesting figures within that range. That’s pretty close to saying we really don’t know.
The research is far from solid, and the subject an ideological hot potato.
Silly research chasing an unknowable thing, gathering meaningless stats….which prove nothing.
Consider… What is being measured here is the frequency of prosecutions for false allegations of rape. What is revealed by the study is ONLY an absence of prosecutions….NOT an absence of ‘false allegations’.
If, on the other hand, we consider that 49% of rape accusations yield ‘not guilty’ findings, then we might more justifiably conclude that 49% of all rape allegations are false (or not provable as true)
We therefore might more reasonably ask: why didn’t the 49% of men who faced rape trials (and were found not-guilty) turn around and then sue the accused for false allegations?
Cost, obviously, would be a major factor. Plus, more importantly, what was proven at the rape trial (in which they were found not guilty) is the impossibility of proving a ‘state of mind’. In order for an individual to be found guilty of a false allegation, it would have to be proved (beyond a reasonable doubt, I would guess) that the Accuser knew the truth and deliberately decided to lie.
That, of course, would be as difficult as the task she faced initially of proving that her state of mind at the time of the encounter was that she did not wish to have sex.
Most people simply wouldn’t bother with chasing another trial to prove something which is essentially unprovable….and would cause them to revisit the same bad situation all over again.
Women should avoid, as best they can, putting themselves in positions where they could be the victims of rapists. This includes your drunkenness.
Men should avoid, as best they can, putting themselves in positions where they could be the victims of false accusations. This includes drunkenness, hers as well as yours.
I would also add men should avoid getting drunk and provoking fights and/or making themselves vulnerable to being attacked. Many men in their teens and twenties who are attacked have provoked other men, resulting in them being attacked or are mugged. A puny man walking around a rough areas carrying an expensive clothes, lap top, phone and watch is asking to be mugged.
I get what you are saying, but perhaps it could be better worded. We should all take responsibility for our own safety. The world holds dangers, and we need to recognise this. Nonetheless, rape, and mugging, are crimes – and no matter how careless the victim has been, the perpetrators are just as guilty, and should be punished accordingly.
If someone is attacked after being careless about their personal safety, the perpetrator is as guilty as had the victim been very cautious.
Not sure if you are agreeing or asking a question.
Is there research on how many cases fit this scenario?
What an extraordinarily ignorant, cruel and sexist comment. It’s difficult for a gent to have penetrative sex if he doesn’t want to
You could use exactly the same logic about vaginal lubrication. It’s more complicated than just being aroused or not.
Oh really?!!
Any evidence for this Samir Iker, or do you merely expect readers to accept your prejudice?
Are we going to imprison those women for “rape”? And if not, are those women “getting away with it?”
Section 1 – Rape involves penetration of the vagina, a**s or mouth by a p***s, therefore a woman can only commit this offence as an accomplice.
https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-7-key-legislation-and-offences
Not in the least. The only thing it could possibly prove is that 49% of the women who accuse a man of rape believe that the man got away with it. The man may very well believe that the sex in question was entirely consensual.
The CPS are under pressure to pursue rape cases which means that weak cases are bought to trial which should not have been prosecuted in the first place.
On the other hand across the criminal justice system we have seen the dice progressively loaded in favour of the Defendant in response to each apparent miscarriage of justice involving the right kind of victim.
One wonders what the fallout will before the legal system from the post office scandal
It is worth mentioning that Government Departments implement processes (probably deliberately) that make prosecution of criminals offences more difficult. For example the DWP has processes which make it extremely difficult to prosecute benefit fraud, probably motivated by the desire to keep from the public how widespread benefit fraud is.
From where do you get the evidence that benefit fraud is widespread?
My former brother-in-law was head of investigations for the DSS for a large area of the country. By way of example, more than 20 years ago his team were prevented from investigating taxi drivers in Luton because of their ethnicity and his team had to investigate post offices and even employees of the DSS because they had been infiltrated by organised gangs.
Also, I also have a former colleague who went to work for the DWP. She was hocked how widespread serious fraud was and how difficult the DWP made it to actually prosecute the cases. And we are not taking about a few quid. Me are talking about claimants who perpetrate multiple frauds for very large sums
In criminal law, Blackstone’s ratio (also known as Blackstone’s formulation) is the idea that:
“It is better that ten guilty persons escape than that one innocent suffer.”
This has been a fundamental principle of law since 1760.
It’s now being undermined so that politicians can curry favour with feminists.
I’m kind of shocked this one is getting so many downvotes. Would people care to say why? If you disagree, what ratio would you prefer? What price, in terms of innocent people suffering at the hands of the law, are you prepared to accept?
As usual, nobody addresses this point.
But the point is not logic & rationality.
The point is to boost the 51% conviction rate.
If we begin with the mandate to ‘Believe all Women’…and we couple that belief with the understanding that Masculinity is itself Toxic…then the only truly acceptable conviction rate number is 100%. Anything less is failure.
We’re not interested in letting innocent MEN go free (if masculinity is toxic there is no innocent man)…we’re interested in validating all women, and in particular, every woman’s claim that she’s had a non-consensual sexual experience with yet another toxic male.
Thus the article begins with the assertion that rape trials are broken because not enough men are being convicted.
Excellent comment and valid observations. So many of these cases come down to the issue of consent. Defendants are considered innocent until proven guilty, and proving rape often means proving non-consent. How exactly is anyone supposed to prove a woman did or didn’t give consent? In a courtroom, one person’s word is rarely conclusive, unless the victim is very sympathetic and the defendant much less so. There has to be some kind of evidence to prove anything in a courtroom, and it’s hard to find evidence of something that is exclusively in someone’s mind, and it isn’t just the mind of the victim. Depending on the circumstances, the defendant could claim he didn’t know the victim had withdrawn her consent at some point, or that she never made a clear statement of non-consent, again very difficult to prove in a room with exactly two people.
In practice, I suspect it usually comes down to whether the sex was sufficiently forceful to cause injury and/or whether there was a struggle that left injuries on one one or both parties. Evidence of a violent struggle would constitute evidence of non-consent that would be difficult for a jury to ignore. The only other way to prove non-consent would be if the defendant talked about it to friends who then testified against him or maybe communicated through text messages which could be retrieved from phones.
“False accusations are sadly a fact and not a “myth” as the article implies.”
Yes they are not a myth but there is evidence about how much exists:
From the Crown Prosecution Service (CPS):
“Research has shown that false allegations of rape are rare. A CPS report published in 2013 showed that over a 17-month period, there were 5,651 prosecutions for rape and, during the same period, there were 35 prosecutions for making false allegations of rape.”
The CPS prosecutes false allegations of rape when the evidential test is met.”
https://www.cps.gov.uk/publication/key-facts-about-how-CPS-prosecutes-allegations-rape#:~:text=Research%20has%20shown%20that%20false,making%20false%20allegations%20of%20rape.
Men and women have well-known desires, and when women dress to attract, it should not surprise them that men are attracted. The claim that one person may have said ‘no’ is impossible to prove or disprove.
“It wasn’t my fault m’lud, you should have seen what she was wearing! With the short skirt and low cut top she was practically begging me to drag her down that alley!”
So how come women wearing the burka get raped? Women dressed in jeans and a baggy sweater? That is one of the urban myths that juries far too often take into account when deciding if the woman said yes or no. She was wearing a minidress that was low cut so she must hwve e wanted sex!! Really…
Or the case in Ireland where a 27 year old rapist was acquitted because the senior defensive counsel Elizabeth O’Connell (a woman no less!) stated “You have to look at the way she [the victim] was dressed. She was wearing a thong with a lace front.” Talk about playing to myths
If the 27 year old was acquitted they CANNOT have been a rapist. QED?
Quite. The language used in so many of these arguments implies that all complainants are “victims”. You here it all the time. Especially on the BBC. Logically false statements. There’s a case to be argued. But flat out lying and misrepresentation don’t help to do so.
The man should have been referred to as the alleged rapist. But it doesn’t alter the fact that the defence lawyer should not have referred to the woman’s clothing as it is irrelevant, and also because it makes the assumption that because a woman is dressed in a certain way it means she is willing to have sex with anyone.
This one sounds shocking. Do you have a link? I’m wondering if this was an ill chosen remark on top of lots of other evidence.
I always leave my front door open and all the lights on over night!
Yes, old women get raped too. Rape is an act of violence and subjugation, not sexual attraction. That’s why it often happens in war situations. I think it should be treated just the same as an allegation of any other type of violent attack against an individual.
Actually we don’t know that. It is a particular view, largely associated with feminism, which tends to see all relations between men and women as being about power.
Younger women are raped far more frequently. And if there is no sexual aspect to this, why rape? Why not non-sexual violence instead.
War situations may not be typical.
Well why commit rape during war if it’s not an act of subjugation? They could just as easily – or even more easily – attack women in the same way as they do with men.
In the ordinary world, some people get their jollies from exerting power over others. Sex is a way of exerting that power and perhaps awards the perpetrator additional pleasure through being able to obtain sexual release.
And there are some who believe they are entitled to have sex with women any time they choose to. It wasn’t until the 1990s that the law was changed so that a man could no longer rape his wife and claim he was just exercising his conjugal rights. Such beliefs cast a long shadow and don’t disappear overnight just because the law has changed.
I’m curious about this belief I see mentioned a lot – that feminists tend to see all relations between men and women as being about power. I was a feminist from when I was too young to know what the word meant and still am in my old age. But I’ve never taken that view. I remain a feminist since rights need to be defended, one cannot assume they will not ever face challenges.
With violence it is safe to assume that people do not voluntarily seek to get punched in the face or have their bones broken. Sex is another matter – I understand that it is a very popular activity, even among women. That does make it harder to prove that any given instance was actually a crime.
It’s not hard to prove. If the woman has sustained bruises, especially in the vaginal area, it provides physical evidence as the bruises didn’t get there by themselves. Sex for a women – without arousal and lubrication is extremely painful and leaves its mark.
Whatever we wear and wherever we go
Yes means Yes and No means No.
Nothing wrong with men being attracted to women because of their clothing, but it doesn’t mean they are entitled to take what they want. Even a neanderthal like you should be able to understand that.
Juries are a critical part of a real justice system. Juries ‘fail’ to convict because they are not convinced of guilt, which is exactly what they should do. The desire to remove juries is a worrisome hint that Governments are more interested in getting the desired result than the right one.
“Governments are more interested in getting the desired result than the right one.”
A good example being the Judiciary/Government of Northern Ireland who are doing everything in their power to convict a former member of the Parachute Regiment for the so called “Bloody Sunday”*incident in 1972. Hearsay evidence from a deceased person will now, unprecedentedly, be admissible for example!
Then off course there was the Stephen Lawrence case where the centuries old ‘double jeopardy’ principle was overturned in order to gain a conviction ‘come what may’.
Nearly two thousand years ago the Roman satirist Juvenal** quipped “Who judges the Judges?” His question is sadly, all too relevant today.
(* For some Good Sunday.)
(** Died about 127 AD to use Christian chronology.)
Paratroopers are not policemen, nor should they have to serve as such. They’re trained to jump from a perfectly adequate airplane, into enemy territory, and destroy the enemy.
They are not meant for crowd control, but for killing. And are trained to attack and defend, not to defuse riots.
That said, the Troubles could’ve very possibly been avoided by extending the vote to people who have to rent their homes. They would then have political representation, rather than the desire to pick up a rifle themselves.
Either way, Catholics currently equal or outnumber Protestants in that tiny and rust flaked patch of post industrial Empire, and there are to my knowledge no pogroms, nor mass roundups of loyalists. Nor are there armed conflicts or violent donnybrooks on Guy Fawkes Day, beyond the usual drunken idiocies of which both of those groups seem fond.
The “Troubles” as they are euphemistically known could easily have been avoided had HMG being paying attention from 1922 onwards. In the event it didn’t thus allowing Northern Ireland by be governed by series of bigoted, greedy, needy Protestant morons for nearly fifty years. Hence the ‘explosion’ in late 1969.
Of course you are correct about the Paras but by that stage in the game the Royal Irish Constabulary could not be relied on. In the event a mere 107* rounds were fired, obtaining around thirty ‘hits’. Rather poor shooting under the circumstances, however it pales into insignificance compared to what the renowned IDF are up to in Gaza does it not?
(* One round seems to have been rather carelessly ‘lost’ by the late Lieutenant N.)
Just use BCE and CE.
Never.
To (ab)use the old maxim: It is better that 10 rapist go free than one innocent man, who had what he honestly believed was consensual sex, gets convicted.
Does not sound so comforting as the original does it? But that is the principle the justice system is built upon and whilst my heart genuinely goes out to all women who are victims of this most horrible crime and I have no sympathy what so ever for the men who do commit it, the principle has to be the same for all crimes.
Maybe more cases where consent is contested ought to just go to civil court?
The only difference would be life as a pariah, rather than a long prison sentence.
A man, innocent or guilty, would still lose all of his hard won possessions, his reputation, and his entire life’s work.
Women can be overpowered by men, and some men are devoid enough of empathy, fear, and basic morality to violate them. That’s why we have elaborate systems of laws and protections, as well as strong social sanctions, to prevent bad men from harming women.
Bad women also exist. Handing them a powerful weapon in the form of easily obtained rape convictions, civil or criminal, can easily lead to the most awful sorts of injustices well separate from sexual abuse.
Divorces, workplace disputes, and political processes (as we saw in the US with a recent judicial nominee) would quickly turn into ghastly carnivals of allegations, against any man whose political views or even mere prominence makes him a target.
Bad women exist. Women with mental illnesses exist. Women can and will dispose of a rival or an enemy with lies.
These things exist, just as monstrous rapists, who of course should be severely punished, exist. To pretend otherwise is to ask for the worst sorts of injustices, and will lead to an even greater mistrust, suspicion, and division between women and men.
Thanks for your considered reply. I really don’t know what the answer is so I put a number of ideas out as questions.
Are rape trials really broken or have we already found the least worse way of dealing with a really horrendous situation?
I’m sure there are a few women who would use a false rape accusation as revenge, but not many. Who in their right mind would want to be dragged through the court system if it wasn’t true?
I’d agree if we were talking about average women, who are emotionally stable and not suffering from a personality disorder such as BPD or even an attachment disorder, psychopathy or narcissism. BPD is relatively common, as are other disorders. That’s more than enough off the rails people to produce false accusations.
Revenge isn’t the only motivation. We had a case locally, in brief: gf caught bf cheating with best friend. Plastered it all over social media to wreck best friends reputation. Best friend then made an accusation of rape (to the police) against bf to save her reputation. Some people are just off the rails.
On your last point, that may be why a lot of women withdraw the charge.
https://www.mcmilitarylaw.com/blog/2017/march/recent-research-into-false-allegations-of-sexual/#:~:text=For%20instance%2C%20simply%20because%20a,at%20increased%20risk%20for%20assault).
Refer to research which identified 11 distinct pathways to false rape accusation, including various mental health disorders. Also note that it is under researched because it is such a politically hot issue.
https://psycnet.apa.org/record/2012-08112-001
“Stephen Coxen — a stranger she met in a nightclub — pushed his way into her home and raped her”.
Odd, as Mr Coxen was not found guilty, if this is not libellous.
Not proven is not the same as not guilty… So not libellous at all.
It’s that grotesque ambiguity that makes Sc*tch Law such as farce.
Not guilty = innocent beyond reasonable doubt.
Not proven = neither innocence nor guilt can be determined beyond reasonable doubt.
Seems a fair system to me.
The normal interpretation according to my Sc*tch friends is :
“Guilty, but we just couldn’t prove it.”
An English jury who conclude “guilty but we just can’t prove it” are obliged under the ‘beyond reasonable doubt’ constraint to return a pristine ‘Not Guilty’ verdict. See the difference?
Surely you mean the Prosecution can’t prove it, NOT the Jury?
What the prosecution/defence can/can’t prove is immaterial: it’s a trial: the jury decides the verdict. I was a jury member in a serious crime trial where, after many hours deliberation, we were split between innocence and guilt in a ‘more likely than not’ quandary. We were very grateful to have the choice of a Not Proven verdict because, whether a brilliant prosecution/defence or a lousy prosecution/defence. the case against the accused was not proven.
I must reluctantly disagree.
I once had the pleasure of sitting as Juryman on a most heinous murder trial at No1 court of the Old Bailey.
All twelve of us were delighted that we did NOT have the option of dithering, (eg not proven) but had to decide one way or the other. In the event it only took 22 minutes to reach our decision.
Thanks for the chuckle Charles … a Judge gives a solemn instruction to “retire and deliberate a verdict, in your own time, without fear or favour and beyond reasonable doubt” … replaced with “no dithering!”
It was just before Christmas!
Well….there is that niggling truth that Stephen is still, always and forever, presumed innocent until proven guilty. And since he was not proven to be guilty, we must still presume him totally & completely innocent of the crime of rape….which means, yes, logically to say — in print — that he’s a rapist should be considered libelous.
Like me saying ‘You’re a mass murderer’…and you saying that’s libel…and me responding, ‘well…my assertion has simply not yet been proven…so it’s still a reasonable thing for me to say’. No, it isn’t. Our presumption must be that you are and remain innocent.
We cannot know what percentage of men accused of this wicked crime are guilty. Let’s suppose that 90% of those accused are guilty and, consequently, many men tried are wrongly acquitted and free to commit this crime again. This is awful; any man who does this needs to be locked up.
However, even if my guess statistic is correct, it makes no difference to the process. An individual man on trial for this is either guilty or innocent. It’s not a 90% chance of guilt, it’s either 0 or 100%.
When I think of this, I think judges are likely to have the 90% number (or whatever they think it is) in their heads and, I fear, are less little to consider the case they judge on its own merits. Jurors are very unlikely to have to consider more than one case in their lifetimes and, I believe, are less likely to have concerns broader than the case in hand.
Perhaps there is work to do to make it easier for women to make a complaint; swings and roundabouts, more guilty men will face an investigation, so too will more innocent ones. I suspect it is easier to invent a complaint from years ago than defend yourself from one.
When it comes to consent it is entirely possible for a man to genuinely believe he had it and for the woman to genuinely believe she had not given it.
Being investigated for rape even if ultimately found not guilty can still have very serious implications for a man.
And being raped has serious consequences for women (and men)
“Being raped” is a fact. “Being investigated for rape” is also a fact. The difference is that you can’t get raped without getting raped, but you can get investigated for rape without actually having committed rape.
And for the woman… In some cases, it becomes “open season” on the woman especially where the man then tells everyone who will listen who the woman was. What happens next? The woman loses what she called her life as she either has to move away or she stops going out… ever!
Men who have been raped by other men and in cases where their rapist walks, experience the same thing. Something has to be done to stop the trauma on both sides. And to stop those men who rape over and over from getting away with it. What do you suggest? Everyone who has sex, videos it… Just in case?
“What do you suggest”.
Capital Punishment, it works first time, every time.
That, indeed, has been suggested, quite seriously. We can also find various Apps that people can install that allow ‘consent’ to be effectively recorded on one’s phone prior to the deed in question.
The real answer is the immensely unpopular & seriously uncool answer: recognize that a casual/hook-up kind of perspective on sex with people you don’t love, who don’t love you carries with it the risk of a seriously unwanted outcome.
Equally unpopular and uncool: the very adult understanding that we are, indeed, responsible for our actions & decisions…and that every action and decision has consequences (and we own a responsibility for at least some portion of those consequences).
In this case, Miss M goes out for fun…part of ‘fun’ is meeting new people…Miss M drinks to excess…part of drinking to excess is becoming more irresponsible and detached from the idea of consequence… Miss M meets Stephen. She evidently likes Stephen who evidently likes her….and they do what two people tend to do while drinking at a Club when they like each other and are attracted to each other. Miss M invites him back to her place (at least so we can presume given the bare bone facts at hand).
What happens next? Your guess is as good as mine. Stephen tells us everything was consensual; Miss M says it wasn’t. And maybe both honestly believe that they are telling the truth.
What would you suggest?
Absolutely right.
A singular event, with two participants, will always be seen & understood in two different ways, each perspective unique to the participant. (Think Rashomon) And when that event is sexual in nature, and involves the most physically intimate thing that two people can possibly do (an act which carries with all kinds of emotional & psychological weight), then it cannot be surprising to discover that the male & female participants very often see that sexual moment in two completely different ways.
How then can it be surprising that we find situations in which one party believes that the act was consensual… and one not…especially when so much of any given intimate sexual encounter between two inexperienced (and probably intoxicated) individuals is non-verbal?
So what is the truth? The truth is very probably unknowable, given the utter lack of witnesses or physical evidence which would allow us (the outside reasonable observer) to recognize consent or the lack thereof.
Thus, in the absence of evidence of guilt, the accused must continue to hold the presumption of innocence.
If the suggestion in your final paragraph were to be enacted, it would have to go hand in hand with mutual anonymity. Presently this only applies to rape complainants which is already a gross injustice: if even more innocent men are to be dragged through the courts, the system should at least not ruin their names for life before they’ve even been convicted of a crime.
Yes, possibly
The biggest flaw of this proposal to remove juries is to have this case tried by a single judge. Other countries add people to act as assessors in juryless trials. The reason offered here for not having more than one person is cost! So a totally new system is being pushed through and cost is allowed to stand in the way of justice.
One of the obvious differences between most offences is that having sex is an inherently enjoyable experience that is frequently willingly indulged in particularly when the participants are disinhibited by drink.
It is also something that may be regretted subsequently or need to be explained away to a partner or censorious parent. This is not the case in burglary, theft or GBH. No one knows the extent to which false allegations are brought so it can’t be a myth that it frequently occurs.
Clearly it is a lot less frequent than acquittals suggest but that is because juries have to be sure the offence has taken place not just satisfied on a balance of probabilities which is all a civil claim involves. Usually it simply comes down to who you believe and most of the time the answer must be that as a member of the jury we just can’t be sure unless you subscribe to the myth that women never regret or seek to explain away sexual encounters.
The idea that a single Judge will be subject to fewer biases than a Jury is absurd. I would certainly not wish to face a feminist Judge of either sex that is convinced that women don’t bring unfounded accusations particularly while all the rules that prevent advocates from presenting relevant but “prejudicial” evidence is in place.
Of course a lot of men get away with it but that is inherent in a system that requires a jury to be sure the offence took place. All too often no one can be sure unless you subscribe to the myth that women never lie about such things.
Entirely on a side note…
What we see illustrated here (in both the articles and the comments) is a small part of the essential difference between men & women.
Every adult I know has had sexual encounters they regret. Every adult I know has had sexual encounters that were fundamentally ‘unwanted’. But no man I know has ever gone to the police with a complaint that he was sexually assaulted by his Saturday night pick-up. As casually cruel & specious as it might sound, for most men a regretted or unsought sexual experience is still probably a preferable choice to NO sexual experience (especially when young & buzzed). This is significantly not true for most women.
And the reason for that, is that the sexual experience for women is an entirely different kind of thing, carrying with it an entirely different kind of risk.
We sometimes like to pretend this is not true…that a ‘zipless f***’ for a man is the same as it is for a woman But it’s not. It can’t be.
“It feels ridiculous that some lawyers aren’t willing to at least give the pilot a go.”
If they feel it will increase the chances of miscarriages of justice then, of course, they should fight juryless trials.
… but as the article surmises, the other side of that is a fear that there will be fewer miscarriages of justice!
We could off course bring in something like “Diplock Trials”* for rape cases.
However that would mean having to have supreme faith in our once much vaunted Judiciary. Unfortunately the conduct of some British judges in recent years has been so simply appalling that that is no longer possible.
(* Judge only trials and NO jury.)
Does the State and CPS still set targets for an increase in convictions of men as was the case a few years ago? If so, why are discussing juries? The targets were a total violation of natural justice – a crazed expression of identitarian mania – which led our idiot state militia (polis) to ignore exonerating evidence and ensure many innocent young males got banged up and terrorised.
There seems to be an assumption here that judges, sheriffs, whatever are less influenced by “myths” than are members of the general public, and more grounded in truth and reality. And yet the evidence seems to be that educated people are, if anything more prone to believe myths (especially ideological ones) than are the general public.
We all have our weaknesses when it comes to objectivity, but when it comes to pushing belief over truth (and genuine common sense based on observation) our educated classes seem to have the rest of the population well and truly beat.
I agree, having observed this phenomenon myself. I think it might be due to these people having already adopted an entrenched position so are ready to believe a myth that supports their position. Adherence to dogma is the enemy of critical thinking which is a skill that not all educated people have.
When someone falsely uses Trump as a reposte, then he loses any balance, especially when it is totally wrong.
Does the fool McGovern not realise that it is the US federal and state law agencies that have indicted him 94 times.
Thank you Alan, the comment I was looking for. It’s an interesting article but I’m still absolutely in favour of trial by jury. However, arguments about the judiciary aside, this was an absurd line:
“Trump has politicised and weaponised the entire system; only anonymous juries have stood up to him”.
What planet is the speaker living on? It’s perfectly relevant to say that the politicisation of judges in the US is exactly why we should keep juries: but the US supreme court was political and politicised for decades before Trump even thought about the Republican nomination.
Policy change in America is not brought about by the stalemated political institutions: it is brought about by activist judges in the supreme court. Abortion, Death Penalty, Gay marriage: US supreme court.
I know several Americans who held their noses and voted for Trump the first time round, SOLELY because they knew he would put a conservative judge into the Supreme Court. (Full disclosure: if I had been a US citizen I would have done the same).
Trump may or may not be an unsavoury character: it’s US politics, pick your poison. But to blame him for the politicisation of the justice system is absurd and ignorant.
Well said!
Yes very strange. This was all about Scotland which has a different system to England and Wales so to suddenly point to another radically different system to draw parallels is unfounded. The author was right to include that quote as it does speak to some very muddled thinking.
CENSORED FOR USE OF THE WORD SCOTCH!?!
As at 0831 GMT.
Would “Scots” not have been the more grammatically correct word to have used?
No.
Quite right too – strong drink at 08.31 is an outrage!
Sounds like a good idea to me. Especially after ploughing through to the end of this article.
What a wonderful exposition of the Sc*tch Judiciary and on International Women’s Day of all days, bravo!
As the ‘good Doctor’ said “Knowledge is divided among the Sc*tch like bread in a besieged town, to everyman a mouthful, to no man a bellyful.”
Has anything really changed since that epic description?
You drink Scotch… The rest of us are Scottish!
When I drive to Scotland to visit my Scotch friends I normally go via the A1 and Scotch Corner. Shortly after crossing the border at Carter Bar I normally encounter some Scotch mist on the road. Fortunately I normally have a bottle of Scotch at hand wrapped up in Scotch tape to protect it, and also a Scotch egg for emergency use only.
Immediately SIN BINNED as at 1341. GMT.
The A1 way to Scotch rumours!
When Maya Forstater took her wrongful dismissal case to court for the sin of confirming biological sex is real, Employment Judge Tayler stated that her gender-critical views were “incompatible with human dignity and fundamental rights of others”
Admittedly overruled on appeal, but surely nobody watching what is happening in the US is unaware that the march through the legal institutions is well underway.
Exiting those pesky deplorables from the process is obviously a necessary step.
At the heart of all this may be a fundamental difference between what now constitutes rape in law, and what ordinary people believe to constitute rape. This difference is described by one side as belief in “myths” by the other.
I’m guessing that cases which would have led to a guilty verdict in the past – involving force, violence, threats of violence, resistance or clear refusal by the victim – still lead to a guilty verdict. Where juries fail to convict will be in the border area of actions which would once not have been considered rape, but now are. For example, where a defendant feels that she did not consent, but the jury feels that consent was implied, no force was used, no resistance offered, no refusal given etc.
This is what the law is supposed to be for – to impartially judge and minimise subjectivity of judgements. Justice needs to be consistent and repeatable. It’s there to take the emotion and changing weather of public opinion out of the process – not emphasise it. Evidence, not feelings.
Juries are *supposed* to make sure that the law and guidances are aligned with a popular sense of justice. That is what they are for, so they are simply doing their duty.
As an interesting example, abortion was first legalised in Denmark after it became obvious that you just could not get juries to convict in abortion cases.
I don’t think the removal of juries is going to address the fundamental problem which is that a crime like rape is extremely difficult to prosecute in a society in which crime and non-crime can look the same, and the only difference between them is consent given in private. In the past, signs of violence would automatically have been considered by a jury to be evidence of force, but with the normalisation of rough sex and kink in a porn saturated culture this has been negated. One consequence has been numerous cases of rape and sexual assault where despite copious evidence of physical harm the defendant has been acquitted on the “rough sex defence”. The law has recently been tightened up in this area, not least due to the good work by groups such as We Cannot Consent to This, but it doesn’t address the fundamental issue that in a highly permissive society proving harm in private is extremely difficult. Consent is after all a technical concept taken from contract law, it is ill suited to distinguishing guilty from innocent in private sexual relations.
I don’t see anything wrong with those selected for jury service being given a briefing on the generic issues surrounding a particular type of case eg rape myths and then being assessed as to whether they can do the job that is being asked of them. Yes some who just don’t want to do jury service at all would use it as a way to get out of it, but given the importance of juries is that such a bad thing?
I posted a comment about 3 hours ago that got pulled allegedly as Spam. I assumed that once the moderators got round to looking at it it would appear some time after 9.30 am.
So far it has not appeared. Are all the moderators off sick? in which case I tender my sympathy. Or have those who disagree with a comment found a way to disappear it by logging it as Spam and Spam doesn’t get looked at? Just curious.
Is a question as to why a post has not appeared now subject to censorship or are all posts being reviewed to see if they are fit to be published?
Our legal system has been utterly debased and hollowed out by the Progressive New Order instituted by the Blair/EU alliance and revolution of the 90s. The identitarian and DEI human rights credo of our Remainiac London legal caste is a flamethrower, incinerating the scales of justice and establishing new Higher castes of Elect/legally privileged groups. Just peek at today’s news. An armed policeman stripped of anonymity and thrown to wolves. And beware Troubles soldiers. Its only the PIRA terrorists who will get the Out Of Court/Jail free passes. No wonder ex soldiers are fearful that we can no longer project force abroad due to the threat of the weasly gold digger human rights lawyers who free-ride with our enemies.
Have you ever read the approximately fourteen million words of the Saville Enquiry?
Astonishing to think it was compiled by a man who did his National Service in an Infantry Regiment* of the British Army.
(*The Royal Sussex Regiment, late HM 35th of Foot.)
The pilot will be judged a success if the conviction rate increases. That in itself explains why it shouldn’t happen. Nobody can know what the “correct” conviction rate is.
Is it any wonder a leftwing theocracy like the UK uses rape as a weapon? they will use any weapon to hand until they are stopped by, er, weapons. Unlike the US where Colt AR15s or similar can be bought with a drivers’ licence the UK populace is effectivley defanged, neutered to create a rapists’ playground. The tories think a low wage migrant class justifies this policy, labour/green/scotsnats think brown skin is superior to white skin and follow the policy due to their racist reasoning. Both are wrong. As long as we have 1/2″ mild steel pipe, a lathe and a mill, we have the means to defeat them. All we need is the will to do so- we had this in 1940 and in sha Allah we still do, albeit buried deeper than before.
What a hideous article.
The “myth that false allegations are common”? What an obviously stupid statement. This assumes that the truth of an allegation is always found and that women never lie. You can’t prove that something did not happen, you odious wretch. So how can you call it a myth that false allegations are common?
Short answer: you can’t. Not if you care about logic.
And percentages? Really? You want a higher conviction rate just because you feel the percentages are too low? How about justice? Is justice determined by an equal or proportional distribution in your alternate universe?
You’re a monster. And a dangerous buffoon.
Seriously, I hope things start falling off of you.
No need. Really. No need.
If you can’t argue a case against an article without resorting to imbecilic verbal attacks, it might be worth considering just who is the more dangerous.
I have some sympathy with your objections to his rhetoric but I’ll make one thing very clear: between Mike Walker and anyone who would tear down the essential pillars of justice just to achieve a political target, the latter is emphatically the more dangerous, and not by a small margin either.
Sure. I’m imbecilic for advocating due process.
And dangerous? I’m stenuously objecting to an opinion. She’s advocating for a percentage-based assignment of prison time and lifelong disgrace because she feels that rape allegations are, in general, true.
Who’s dangerous?
Surely the whole point of a trial is to try and get as far as is practicable to the truth of what happened. Unfortunately some jurors will make assumptions of innocence or guilt based on their own prejudices rather than clear-eyed observation and consideration of the available evidence. This can happen in any criminal case, not just rape. I came across a couple of jokers like that when I was called for jury service – fortunately there were enough of us on the panel to ensure a serious and detailed discussion before passing a verdict.
One of the advantages of juries is that it gives that kind of balance. Leaving judgement to one member of the public chosen at random would lead to chaotic judgements. But how confidently can we assume that a single educated person will be free enough of bias to make such a decision on their own?
‘how confidently can we assume that a single educated person will be free enough of bias to make such a decision on their own?’
No confidence whatsoever, because educated people are just as prone to prejudice and bias as the uneducated. Not sure why though, you’d think a good education would instil critical thinking skills.
Yes, it’s a paradox.
Partly I think it is social pressure. If you are a bricklayer nobody cares what your opinions are so long as you can lay bricks. In most middle class jobs, and especially in education, conformity to group ideas is essential for both career and social success.
Feel free to try this out for yourself!! Break a taboo!!
But also it’s partly pedagogical. In many university courses students are not so much expected to think for themselves as to apply already established models and concepts. These models and concepts often have ideology baked in. They become the totally taken as given. Backed by professorial authority.
It might be better to ditch the adversarial approach rather than the jury system. I’ve never seen the point of it as you get a much more accurate picture of what’s gone on by questioning people in a calm, objective and non-judgemental manner. Use of open rather than closed questions requiring a Yes or No answer can often lead people to reveal more than they realise. I used this technique effectively in work situations when required to investigate complaints, discipline staff and conduct quality audits, and don’t see why it couldn’t work in criminal cases.
As for conviction rates, I think juries are probably more reluctant to convict where the issue of consent wasn’t clear i.e. if both parties had indulged in alcohol and/or drugs. Sometimes in those situations, sex just happens without either party having verbally consented to it – but nor have they spoken out against it. .
I think you are making really good points. But the stakes are so high that it is hard not to be adversarial. A significant number of accusations fail because the victim has lied to the police in her evidence, or the evidence has proven inaccurate. Not always in significant ways, and sometimes just to make her look better – but would it be fair if the defence could not point to this as evidence of unreliability?
No answers. We all want the guilty to be punished and the innocent to go free. But how we get there in relation to this crime is difficult.
Indeed, there are no simple answers to this issue. It will be interesting to see what comes out of this this project to try some cases without juries. But I’m not sure that doing without juries is the answer.
Me neither.
It’s pretty clear to me that some men are getting away with rape, some are being falsely accused, and some situations are ambiguous, or so lacking in evidence that no case can be made.
The numbers of each is really anybody’s guess. And which strategy will lead to more convictions of the guilty without imprisoning more of the innocent is likely also unknown.
The danger is obvious: the judgements will become politicised and biased in favour of conviction without sufficient criminal evidence. Once judges take on this responsibility, their track records will become the subject of political activist social media campaigns, and the judges themselves will discover that their careers are under threat unless they adhere to political priorities.
You might say that a person cannot be convicted on a political priority, only evidence, but the whole premise of this proposed change is that trials based on the evidence aren’t getting the desired results. It must follow, therefore, that this new proposal must involve judges deciding to convict on an otherwise insufficient level of evidence. What will fill the gap between the available evidence and the standard required for conviction will, inevitably, become politically influenced.
This is nonsense. False rape claims are common. Unfortunately, unscrupulous women after sex they regret or as a means for revenge often file false rape claims against boyfriends and other men. Juries and prosecutors are always very sympathetic to the alleged victims. The old Blackstone maxim that it is better that ten guilty go free than one innocent convicted does not apply in rape cases; both prosecutors and victims prefer the reverse. Further the punishment is grossly disproportionate to the crime. In the US, if someone meets me outside a bar, beats me into unconsciousness and into the hospital but has no criminal record, the likely punishment varies from a suspended jail sentence to six months to two years of actual jail time. If someone meets a woman outside that same bar, rapes her by unconsensual sex, and they both walk away, even with no criminal record the defendant is looking at 10-15 years actual jail time. As with most of the so-called criminal justice system, it is greatly biased in favor of women.
You ARE living dangerously today I must say: “Further the punishment is grossly disproportionate to the crime.”.
Leaving aside the point that women will most likely simply take the view that you’re not a woman so your opinion on that counts for nothing (yes, it’s bullshit of course but that won’t help you), the majority of feminists maintain that being raped is many, many times worse than getting the shit kicked out of you in the manner you describe.
Again, I don’t believe that for a second, but there’s already an official consensus that defeats your objections here. Personally I agree with you, but I’m also somebody whose opinion doesn’t matter, apparently.
All I can do is give my opinion — admittedly no one in power cares about it but such is life with the Powers-that-be. Empirically, any person who would choose getting beaten into unconsciousness over non-consensual sex has never been physically beaten — or, has never had non-masochism sex. According to feminists, men have no right to an opinion on anything. Men should reciprocate.
On the one hand, the woman did not want the benefit of a screen. On the other, she is Miss M. We name the victims of every other crime. That aside, allegations of sex crimes are a minefield all around.
Whether it’s a bona fide charge that deserves a hearing or regret that later cast as rape, I’m not sure anyone ever wins. The person charged, no matter how specious the evidence, will live under a permanent cloud. The credible accuser is hoping to reclaim a portion of what was lost. Still, to be judged by a panel of one’s peers is as fundamental a right of Western law as I can think of, and even then, there is no guarantee of getting it right.
I’m unclear what would constitute success for this pilot. I fear that if more accused men were found guilty it would automatically be deemed a success. But unless we already know what the outcome of a case should be, how are we actually to judge.
As a post script, this is what the play Prima Facie hinges on. Because it is a play, the author can first show us what really happened, and thus that the perpetrator should be found guilty. She can then portray this as a miscarriage of justice. In real cases we do not have this window onto objective truth. We only have the evidence.
Rape is one of those crimes that shows the limitation of criminal law as a system. Because the punishment on conviction is both severe and irreversible (you can’t get back the time you spend in prison is wrongly convicted) the system is deliberately skewed in favour of the defendant on the “better a hundred guilty go free than one innocent be wrongly convicted” basis. This means that in any criminal trial a lot of people escape punishment. It’s a particular challenge in rape because it is a crime where meeting the standard of ‘beyond reasonable doubt’ is difficult because in so many cases it is basically one person’s word against another’s and additional contextual evidence is often not admissible. The solution in this, as in other cases, is mentioned but not brought out. Do not deal with rape via the criminal law but the civil. There the burden of proof is less and the range of evidence admissible far wider. The consequence would not be imprisonment but monetary compensation to the victim. A rape victim would not have the satisfaction of they assailant going to prison but they would be publicly vindicated and get significant monetary compensation and have the rapist publicly identified.
My Teenage son was falsely accused of rape . The complainant changed her mind when was told she would have to claim in court that she had been raped. But that was months after the event – expensive lawyers – police questioning etc etc . So false claims do happen.
Exactly how can that brief statement of historic fact be down voted ? That mindlessness rather shows why we should not listen to those who want to convict the innocent.
Changing her mind or unwilling to ‘go to court’ does not mean your son was innocent. Rape is traumatic, so too I imagine is going to court to relive it. ‘Historic fact’? No.
Of course it’s a statement of fact.
Her son was accused of rape. Lawyers were hired. Police were involved, Interrogations occurred and the accuser, months later changed her mind. Thus the son, who is presumed innocent, was, in fact, falsely accused of a crime he clearly was never convicted of committing. Therefore, as far as the public and law is concerned: it was a false allegation.
Now what actually happened…between the teenaged son and teenaged girl in some car’s backseat, someone’s empty apartment, in a dorm room? No one actually knows do we? Nor should we. The odds are good that neither the boy nor the girl themselves actually KNOW what truly happened.
People are notoriously bad witnesses and especially bad witnesses to their own behavior and state of mind at any particular moment. Complicate all that by alcohol (which seems like a reasonably likely thing) and lust (which we all know can be an immensely powerful thing) and what later happened to the relationship (assuming there was one). Add in the Rashomon Factor which tells us that two people can experience the exact same event in two entirely different ways (and both consider their version factually accurate)…and you are left with nothing but Enigma and the fact that the son is still presumed absolutely innocent.
Imagine you are on a jury the evidence shows that two people got undressed consensually in private . They then had sex.
The woman then says later on it was rape. How is the Jury to say it was ? There is no way anyone can fairly conclude beyond reasonable doubt that rape too place.
The comparison to other conviction rates for other crimes is false. A person does not enter their home with a burglar , hold open their swag bag, carry it to the door – and then call the police to say they were burgled.
The premise that there are not enough convictions for rape is totally illogical. Violent attacks by strangers are usually convicted. And that is a very different matter to supposedly consensual sex that is claimed afterwards not to be. The former is provable forensically . The latter is not.
Utterly predictable that this would turn into an opportunity for Unherd commenters to defend rapists and attack women.
You haven’t actually read and understood the comments, have you ?
You really are lazy.
Oh please. There is no one here who is defending rapists. No one here believes rape is a good thing. No one here believes rape is even a neutral thing. Rape is, in fact, a terrible crime, second only to murder in terms of its horrific impact upon the victim.
No one here would disagree with that.
What is being said is that an accusation of rape does not make one a rapist. Nor does a 49% non-conviction rate mean that 49% of rapists are going free.
If we assume that those making rape accusations are a typical sample of women at large, then the number of accusations which do not lead to convictions is both shocking and surprising. The average woman does not make false rape accusations.
But to assume the sample is typical and representative is to beg the question. It may not be. False accusers are more likely to have personality disorders, such as BPD, psychopathic traits, perhaps even narcissism and chronic attention seeking. We need to know if women like this form a significant proportion of the women making accusations. Is there a correlation?
I’m not saying this is the case – but it certainly could be – and we need to know before we start tipping the scales of justice.
The reason the legal mechanisms are so contested, is because society’s conception of sex is so muddled. Intoxicated one night stranger hook ups are enthusiastically desired by some people, tentatively experimented with by others, and nervously danced around by others.
And unfortunately it does happen that people regret what they did and what it says about themselves — both men and women.
Getting rid of the jury system is a terrible response to society being undecided about sexual norms.
On a more general scale, concepts like “beyond reasonable doubt”, and “more likely than not” are examples of the flimsy nonsense that the legal profession is based on. Another thing is the trial process itself, where 2 diametrically opposite versions for the ways a certain outcome came about are presented, instead of trying to find out what really happened, so the only thing that is “beyond reasonable doubt” that no matter which side wins, the truth was not brought to light.
I think there should be strict rules about what to do in the event of rape. The primary one being report to a hospital and the police within eighteen hours.
The question of consent is a little more difficult, but perhaps a cell phone recording. at least this would create a little evidence.
If we get a conviction with virtually zero evidence etc, then the number of incidences are going to skyrocket.
Hell hath no fury like a woman scorned.
The Jury: Murder Trial, produced by Screendog for Channel 4, is a 4×45-minute series examining the jury system by recreating a real-life murder trial, taken verbatim from the original transcripts. Two randomly selected juries, neither of whom are aware of the other, observe and deliberate on the case. Equally fascinating and worrying. Each jury returned different verdicts and the reasoning and rational behind their decisions was often questionable as was the ‘chivvying’ of the most outspoken. It seemed almost that they were so fed up with the whole thing that they felt a pressure to come to a verdict and outliers caved in to the majority.
A worthy but I feel an over-long article for Unherd’s audience, including me. However:
From Saunders Law, a central London law firm about Rape reports and cases:
“Virtually all rape victims are denied justice: Here is the roadmap to failure.”
“Since 2016-2017, the number of rapes reported has increased by 67% from 42,059 up to 70,330.
In 2021-2022, only 3.2 % of those were prosecuted (2,223). For those prosecuted, the conviction rate in 2022 was 62%. No statistic can provide a perfect, complete picture. The total reports include ‘historical’ allegations which are usually harder to prove. But the broad indication is that, during 2021-2022, of the 70,330 rapes reported to police only 1,378 led to a conviction. This is a conviction rate of less than 2%.
However these outcomes are viewed – whether in light of short term targets or recent trends, a 2% conviction rate is an absurd, abject failure. Of course, not every report of rape is true. There will always be a proportion of false complaints, and only a clairvoyant would know exactly what that proportion is. But nobody seriously thinks that 98% of those alleging rape are lying, or grossly mistaken, about what happened to them.
In fact, most rape allegations have a significant head-start on other types of crime, namely that identification is not the problem. Unlike in other crimes such as theft, burglary or robbery, the vast majority of rape victims know who their abuser was. Typically, he is a man whose name, address and whereabouts are available to the police, and he attends the station when they ask him to.
The notion of ‘He-said-she-said’ cases being harder to prove is a factor, but not an excuse.”
https://www.saunders.co.uk/news/virtually-all-rape-victims-are-denied-justice-here-is-the-roadmap-to-failure/
“Those in favour of it believe some jurors allow their judgement to be influenced by “rape myths” — the myth that false allegations are common, for example, or that a delay in reporting makes a complainer less credible.”
Here’s what Baroness Stern said in her Review of Rape Reporting:
“Those in favour of it believe some jurors allow their judgement to be influenced by “rape myths” — the myth that false allegations are common, for example, or that a delay in reporting makes a complainer less credible.”
“How common are false allegations? It is not possible to establish an exact figure and the research that is available gives a wide range of suggested percentages. Some research suggests that a figure of eight to ten per cent of reported rapes could well be false reports. However, those we spoke to in the system felt that there were very few. A Crown Prosecution Service (CPS) lawyer told us, ‘They are extremely rare. I have been prosecuting for 20 years, and have prosecuted for a false allegation once.’ The judges we talked to said these cases occur very infrequently. An experienced police officer had come across two such cases in 15 years.”
https://www.womensaid.org.uk/wp-content/uploads/2016/01/Stern_Review_of_Rape_Reporting_1FINAL.pdf
And from the Crown Prosecution Service (CPS):
“Research has shown that false allegations of rape are rare. A CPS report published in 2013 showed that over a 17-month period, there were 5,651 prosecutions for rape and, during the same period, there were 35 prosecutions for making false allegations of rape.”
The CPS prosecutes false allegations of rape when the evidential test is met.
https://www.cps.gov.uk/publication/key-facts-about-how-CPS-prosecutes-allegations-rape#:~:text=Research%20has%20shown%20that%20false,making%20false%20allegations%20of%20rape.
We are blessed with having access to the internet and the evidence it provides to all manner of subjects, including reports of sexual assaults, prosecutions and convictions.
The Crime Survey for England and Wales (CSEW) provides the best measure of victimisation and estimated that 2.3% of adults (3.3% women and 1.2% men) aged 16 years and over were victims of sexual assault (including attempts) in the year ending March 2022 survey; this equates to an estimated 1.1 million adults (798,000 women and 275,000 men).Approximately 16.6% of adults aged 16 years and over (7.9 million) had experienced sexual assault (including attempts) since the age of 16 years; 1.9 million were a victim of rape (7.7% women and 0.2% men).Despite no significant change in the prevalence of sexual assault experienced by adults aged 16 to 59 years in the last year (2.7%) compared with the year ending March 2020 (2.2%), there has been a significant increase since the year ending March 2014 (1.5%), which aligns with trends seen in police recorded crime.The volume of sexual offences recorded by the police has been increasing over the last decade although the numbers remain well below the number of victims estimated by the survey; the latest figures for the year ending March 2022 show an increase of 31%, to 193,566 police recorded offences, compared with the previous year.
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/sexualoffencesinenglandandwalesoverview/march2022
Any discussion of juryless rape trials in Scotland really needs to consider what was arguably the most significant rape frial there of recent years – that being the trial, and unanimous acquital of Alex Salmond. Given Garaveli’s previous reporting on this trial I’m not at all surprised she ignored it.
I can’t think of am ore instructive (and depressing) case for rape and Scottish law in which all sorts of strings seem to have been pulled to charge and convict him. Had Salmond not had the benefit of a jury there’s every chance that he would have been convicted – in the end though the majority female jury unanimously found him not guilty.
There were all sorts of reasons why they did – but probably the most significant was the very clear evidence that the accuser of the most serious charge (that of rape) simply was not present at the event when it was alleged to have taken place. She had alleged that it had occurred after a small private dinner, but the two other diners there (one a friend of the accuser) testified that she wasn’t there – and other evidence proved she could not hav been (including sign-in details for the building in question). In short there was good evidence that she perjured herself.
What made this particularly disturbing was the way that the media – including Gavali (who wrote a long piece for Tortoise media) – singularly failed to report any of Salmond’s defence. The accusations and prosecution were front-page news, but, bar one or two independent journalists, his defence was completely ignored.
One of the independent journalists who covered the trial, Craig Murray, was jailed for ‘jigsaw identification’; of the accusers for publishing argually less information than Gavali herself. He was jailed by the prime-movers mentioned in this UnHerd piece.
The BBC produced a Kirsty Wark fronted ‘documentary’ promising a ‘day-by-day’ account of the trial that seemed outraged by his acquittal. It was a staggering piece of work – it did go ‘day-by-day’ for the first five (for the prosecution), but then skipped the next half dozen for his defence.
Until it addresses the apparent corruption in this case, the Scottish legal system cannot be trusted to perform without the safety-net of a jury, it’s as simple as that.
Here is a link to a study of 146 cases of false allegations of rape:
http://empathygap.uk/?p=2176
“Rape trials are broken.”
Really? How do we know this?
Well…Rape Trials yield only a 51% conviction rate for rape compared to an overall conviction rate of 91% across all offences.”
So what?
That disparity does not tell us the Justice System is broken, far from it … it tell us only that there is a significant difference between the crime of rape and all other crimes.
So what is that difference?
When murder is committed, we have a body. When arson is committed we have a smoking pile of rubble. When there’s theft, we can identify the property which is missing. Run down the list: over & over again the crime itself produces the critical & absolute evidence that the crime occurred and that a criminal exists.
But rape — absent the cuts, bruises, contusions, and wounds that we associate only with a violent & physically forced assault — yields exactly the same evidence that consensual sex yields. So what is the difference between rape & consensual sex?
The woman’s state of mind.
And that ineluctable truth leads us always to the terrible & hauntingly unanswerable question: Did she or did she not want to have sex…at that moment…with that man.
There is no body, no pile of ashes, no missing car or wallet, no broken nose or broken arm…there is actually nothing tangible that anyone can see. There is only the assertion by the Accuser: ‘I did not want to have sex…and he forced me’. And the response by the Accused: ‘We both wanted to have sex..and we did.’
This all is made doubly more challenging by the fact that the felony crime of rape must be proven ‘beyond a reasonable doubt’. Given the immensity of these hurdles, the surprise is not that the rape conviction rate is only 51%…it’s that it’s that high.
As much as we might not want these things to be true, they are true. Consensual sex and Non-Consensual sex differ only by one participant’s particular desire ….which may or may not be made explicit … which may or may not be understood, even if made explicit…and which, in the end, may be entirely unprovable. Thus, in the absence of hard proof, we look at context and we ask the question: what would seem reasonable to a reasonable observer at that place, at that time?
Consider the now infamous Miss M (and our bare bones understanding of the case): She was 18…she was drunk….she was at a Club…she picked-up Stephen Coxen…she invited him home. So far we might guess that both accuser and accused would agree. Equally they would agree that the two of them were absolutely alone, together, at the time of the event. She then says he pushed himself inside the apartment and forced her to have sex. He then says (or so we might guess) that she invited him inside and then invited him to have sex.
Unless she’s bruised, beaten, and bloody how can we help but feel a ‘reasonable doubt’ that the sex was consensual or could be perceived as consensual by a ‘reasonable & non-malicious’ participant who understands as we all understand: men are women are attracted to each other and that attraction does quite regularly lead to sex.
Regret is very real. So is shame, embarrassment, anger, resentment, fear, etc. But those very real emotions do not, by themselves, make consensual sex, rape. And the truth of the matter is that a sexual act, undertaken within a private setting, witnessed only by the two participants in question will always be subject to doubt (and reasonable doubt at that) if one declares the act unwanted.
It’s not the law which is broken but the culture itself which encourages, enables, supports, and even celebrates what Erica Jong, 50 years ago, called the ‘zipless….no fault….no strings…no relationship…pick-up / hook-up… Friends with Benefits….Saturday Night…casual…if it feels good do it… f**k’.’ None of that, of course, justifies rape. Rape is a horrible, violent crime that no one should ever have to endure. But it clearly explains a 51% conviction rate….and the risk that a ‘zipless’ perspective carries with it.