One of the problems with rape is that it is such an emotive issue that discussions of it scarcely remain reasonable for long, as this thread demonstrates. Because of that, it is sometimes difficult to see the issues in rape cases for what they are; so as some people were kind enough to say nice things about my contribution to the discussion of the Twitcher trial, I thought I might put my head above this particular parapet again. I have no inside knowledge and little knowledge of the facts of this particular case, but there are one or two misconceptions in the thread about the crime of rape which I thought I would mention.
To prove rape, the Crown has to do two things: prove that the defendant inserted a part of his anatomy into the victim, and prove that the victim neither agreed to what the defendant did, nor could the defendant reasonably have thought that the victim was agreeing to what he did. In putting it that way I have been deliberately vague about both which bit of the anatomy we are talking about, and about the issue of agreement because that might help in understanding these concepts for what they really are. We all know we are talking about a penis and about consent to sexual relations but sometimes keeping that reality at the forefront of the discussion muddies the water – put those two essential points in a different context, and suddenly it becomes a lot less murky.
If you have ever been to the dentist, he probably inserted his hands into your mouth. You probably consented to him doing so. You might not have said directly to him ‘it’s okay to put your hands in my mouth’ and the dentist probably didn’t ask if it was okay to do so, but the context in which the dentist reasonably assumes you are consenting is that you came into his surgery complaining about toothache and sat in his chair with your mouth wide open. But supposing the dentist saw you asleep on the train with your mouth open – what if he decided just to scrape off a bit of tartar from your upper molars? Well, I would suggest that (a) you don’t consent to that because you are asleep, and (b) it is not reasonable for him to think that you were consenting in those circumstances. So would the dentist there be assaulting you in the criminal sense? Yes he would. He is inserting a part of his anatomy into your body without your permission.
Rape, fundamentally, is no different. Special rules don’t apply just because what you want is a shag rather than to do a bit of root canal work. The part of your anatomy inserted into the victim’s body in a rape case is the penis, but the issue of whether in the circumstances the defendant could be forgiven for thinking that the victim gave her consent is basically the same. Everything depends on the context and the circumstances. If everything that has led up to sex leads the defendant genuinely and reasonably to believe that the victim has consented to have sex with him, and that she is actually in a condition where she can give her consent, that is not an offence. If he takes what he likes without her consent, and without reasonably believing that he has her consent, that is rape.
In this case, from the little I know of it, the first defendant met the victim, they went back to his hotel room, and one thing led to another. Now, maybe he did rape her: it is very hard to be sure what happened when it is one’s word against the other’s. But what is much clearer to me is that whilst its reasonable for the dentist to think you agree to him putting his hands in your mouth if you are in his surgery sitting in his chair with your mouth open, it isn’t reasonable for his receptionist to say ‘can I have a go as well?’ and to start re-doing your fillings just because you haven’t said ‘No’. So I don’t have any real difficulty with why MacDonald was given the benefit of the doubt and Ched Evans was convicted.
Then we come on to the fact that the victim was apparently so drunk she could not remember what happened. Again, let’s take it away from rape, because the issue is easier to see when you do. Okay, a guy meets a girl on a night out. They go back to her flat. They don’t have sex. She is in fact so pissed that she can scarcely stand upright or string a coherent sentence together. How would you view it if he takes £50 out of her purse ‘for the cab home’? Wouldn’t you think that if he doesn’t have her clear permission to take the money, he can’t just assume that she is okay with him treating her as a cashpoint? Especially if she is in a state where she isn’t capable of stringing two words together? If he says ‘is it okay if I take £50 for the cab home’ and then just takes it when she doesn’t answer, would anyone disagree that the guy is nicking her money? He is taking advantage of her in short.
The position is really no different in relation to rape. A girl is entitled to say ‘no’ to sex with a guy, just as she is entitled to say ‘yes’. With rape or for that matter any assault, putting part of your anatomy into someone else’s body – like taking somebody’s money - is not something the law allows you to do unless you have the consent of the person you are doing it to. And if she doesn’t appear to be in a condition to give her consent, the rapist – like the thief - is not entitled to just assume he has it. And where the part of your anatomy is the penis, and the part of the victim's anatomy is the mouth, anus or vagina, Parliament says that is not just any old assault, that's Rape.
As I say, when you think about these issues outside the context of sex between two adults, things maybe are a bit easier to understand. It frankly isn’t rocket science to understand that having sex without written permission verified by independent witnesses doesn't mean you are a rapist, but neither can you blithely assume that a girl is consenting to sex if she isn’t in a fit state to give that consent.
Some of the other points raised in the thread can be dealt with quite shortly. The fact that a ‘victim’ makes a complaint of rape which does not lead to a conviction does not make the accusation false or malicious any more than HMRC falsely or maliciously accused Twitcher of tax evasion. Yes we are all innocent until proven guilty, but just because a jury isn’t sure enough of guilt to convict, that doesn’t mean that no offence has taken place, and it certainly doesn’t mean that the ‘victim’ was inevitably a malicious liar out on the make.
The fact is (statistics vary so I’m generalising) around 80% of rape complaints do not lead to prosecutions, and around 80% of prosecutions do not lead to convictions. So out of every 100 complaints of rape made to the police, only 20 end up in court at all, and only 4 end up in convictions. We have either got a huge number of women who complain falsely about being raped – something like 19 out of every 20 - or somewhere, somehow the system is letting rape victims down. Don't get me wrong - when a man is subjected to a malicious and false allegation of rape - and it does happen - it is truly appalling, just as the crime of rape itself is truly appalling. But is anybody seriously saying that 19 out of every 20 complaints of rape are baseless and come from women with an ulterior motive? Do me a favour.
So far, I have been quite sympathetic to complainants in rape cases, because quite a lot of them are genuine victims of crime who see the perpetrators go unpunished. (The rub is in sorting out the genuinely guilty from the victims of wrongful allegations). But in this case, I have to say my sympathy for the victim is slightly in short supply. Most of us would sympathise tremendously with anyone who is the victim of any assault, whether it is as horrific as rape or a more trivial matter. But quite frankly, whilst we are all entitled to go through life without being the victim of any crime, in this day and age people do need to realize that crime is a fact of life and need to take reasonable precautions to make sure they don’t end up the victims of crime. If you don’t lock your front door and you get burgled, well it would be harsh to say it’s your own fault because no one deserves to have their stuff nicked from their living room, but in the real world, we all need to take sensible precautions to avoid being another crime statistic.
The evidence seems to be that she was so bladdered that she couldn’t take proper care of herself. If somebody got her into that state, you might argue that they are almost as culpable as the rapist: but if she got herself into that state, my sympathy starts to wane. Putting it frankly, I’d be fucking livid with my daughter for getting herself into that state because (a) it makes her more vulnerable to a crime, and (b) it makes the crime harder to prove if she is the victim. If the victim in this case is telling the truth, a rapist has walked free. I am sorry to say it, but the chances of that happening would have been much much less if she had not got into a state where she was as paralytic as she seems to have been. Maybe she didn’t get herself in that state, maybe drinks were spiked, etc. But whether this girl did so or not the phenomenon of young girls deliberately and single handedly getting themselves so pissed they are incapable of speaking in coherent sentences is sadly not exactly an infrequent occurrence. None of this is to say ‘she was asking for it’ (none of us ask to be burgled either, that’s why we lock our front doors at night). But getting so pissed you can’t say No is stupid and dangerous.
Finally, with respect to whoever it was who first used the term ‘slag’s remorse’, that might well be the most offensive phrase I have read in this entire thread. I can’t remember if it was said seriously or tongue in cheek, but has anyone ever used that phrase, or anything like it, about a bloke regretting having sex the morning after? If not, doesn’t that say something about double standards?
