Judge Mowat comments: Is it impossible to have a proper discussion on rape?

Now, before I start this, I'll be honest. I am a man who has never been raped, And, fortunately, no-one I know well has been either. So, maybe that renders me incapable of actually talking about rape. If you believe this, then you might as well not even bother with this thread, as I am going to. That said, I aware this is a very sensitive topic, and I hope people aren't too offended by anything I say here, as that's not my aim at all. As such, I put an RD on this in the hope of keeping it reasonably respectable.


But anyway, this is what the post is about: A retiring judge remarked that rape convitions statistics won't improve until women stop getting so drunk (apologies for the Daily Heil link, it was the first one on Google that covered both the comments and the reaction).

http://www.dailymail.co.uk/news/art...juries-t-convict-women-t-remember-attack.html

A top female judge has criticised rape victims who drink too much and are unable to remember their attack clearly.

In a controversial interview to mark her retirement, Judge Mary Jane Mowat said the rape conviction rate would not improve until women stop drinking so heavily.

...

‘It is an inevitable fact of it being one person’s word against another and the burden of proof being that you have to be sure before you convict,’ she said.

‘I will also say, and I will be pilloried for saying so, but the rape conviction statistics will not improve until women stop getting so drunk.

‘I’m not saying it’s right to rape a drunken woman, I’m not saying for a moment that it’s allowable to take advantage of a drunken woman.

‘But a jury in a position where they’ve got a woman who says, “I was absolutely off my head, I can’t really remember what I was doing, I can’t remember what I said, I can’t remember if I consented or not but I know I wouldn’t have done”, I mean when a jury is faced with something like that, how are they supposed to react?’

...

Natalie Brook, service manager at Oxford Sexual Abuse and Rape Crisis Centre, yesterday slammed the judge’s comments on rape as ‘an outrageous, misguided and frankly dangerous statement to make’.

She said: ‘Rape convictions will improve when those who perpetrate it, who are disproportionately male, stop raping and when society stops blaming women for somehow being complicit in this act of violence.

‘Rape is 100 per cent the fault of the perpetrator.’

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Now, what I'm making this post about is not so much the judge's comments, but the reaction, as highlighted by the last couple of lines in the above quote. This is hardly the only response to it I've seen, and indeed "outrageous, misguided and frankly dangerous" is some of the milder language.

Thing is, what exactly is wrong with what Judge Mowat said? Anyone who actually reads her comments should be able to quite clearly see that she's not condoning rape, she's not suggesting that a woman being drunk is a valid excuse to rape her. She's simply saying that it is almost impossible to secure a conviction for rape when the victim is so drunk she cannot remember what happened. No reasonable jury which understands even the basics of how our legal system works (beyond reasonable doubt and all that) could possible convict someone when that kind of testimony is the only evidence (generally, in these cases, sex is admitted, consent is what is up for debate in court).

That's not to say that the victims weren't raped, or that it was somehow their fault, just that the prevalence of alcohol in many rape cases means that prosecution is impossible. What is so unreasonable about this statement? It's not talking about how we want things to be, it's talking about the unfortunate realities of the world - a women's drunkeness isn't an excuse for raping her, but it makes it extremely difficult to punish the rapist.

Seems to me that the response from anti-rape activists (in the sense of those actively campaigning, I would hope pretty much everyone is anti-rape) should be to trying to solve this problem. Instead, they seem to want to refuse to even admit that this is a genuine issue and instead stick to their idealised line of "rape convictions will improve when people stop raping". Never!! Stopping all rape would be perfect. But right now, in the short term, that is not feasible. So instead of searching for "perfection", we should be searching for "better". And if, in the real world, heavy consumption of alcohol leads to increased occurances of rape, or at the least, as Judge Mowat says, lower convition rates, then maybe that actually needs to be looked at, properly discussed and resovled in a realistic practical way.

It just appears to me that whenever someone raises serious, legitimate points about rape that don't quite align to the "proper" view on it, they get this kind of response, no matter what they're actually trying to say. That's not to say by any means that everyone who comments on rape raises legitamate points. Obviously they don't. But to my eyes, many people are so concerned about trying to (rightly) stamp out suggestions of things like "women asking for it", that when a issue like alcohol being a factor in low prosecution rates comes up, they stamp down on that too.

Hell, look at Richard Dawkins' comments on rape a few weeks back. Yes, the man is somewhat of a jerk and (in part due to him using twitter as his medium for communication) he doesn't exactly elaborate as much as he should, but he wasn't actually wrong. There are different degrees of rape - they're all wrong, and they should all be punished, but much like, say, murder, factors such as premeditation do affect the severity of the crime. And yet even raising this provokes huge amounts of vitriol.

Can we actually seriosuly discuss these issues? Is there an issue to discuss?

Yeah. No, it's probably impossible to have a proper discussion about rape.

I think the Judge is correct. Getting totally drunk isn't going to aid the chances of successful prosecution.

Doesn't affect the matter that raping someone has nothing to do with their capability to give, or withhold, consent.

(If this is the right approach to the issue. I'm not sure.)

You can't claim that having sex with an unconscious person lying in the street isn't rape.

I think people in general, not just young women, binge drink far too much, for their own good, anyway. The issue of rape is only marginally related to that.

Alcohol impairment in victims is not even close to the only reason, or even main reason, why rapists aren't being reported, charged or convicted. Our culture remains incredibly adept at finding ways to doubt, minimise, dismiss and blame victims of rape.

The problem of the statement is that it still shifts the burden to the victim. Is it wrong? Well, that's debatable - I'm sure if the women could remember what happened better it would help, but it is still one person's word against another. If there were witnesses, than the woman's lack of memory would not be an issue. Women should be just as free to get pickled as men.

Reducing sexism in society would reduce the rape rate; so would harsher sentences for convicted rapists.

Arwon said:

Alcohol impairment in victims is not even close to the only reason, or even main reason, why rapists aren't being reported, charged or convicted. Our culture remains incredibly adept at finding ways to doubt, minimise, dismiss and blame victims of rape.

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Yeah, this is what I was going to say. The judge is wrong when she says that the only way the conviction rate will increase is if women stop drinking. This is nonsensical and demonstrably false.

It's a bit of a foreign discussion. In Canada, sex requires consent. And you cannot consent if you're blotto.

We leave the burden on the sober partner to take reasonable steps to confirm the person can consent. This includes under-age sex.

We run into a bit of a problem when both partners are drunk. Just because you're drunk, it doesn't mean you can have sex with someone who cannot consent.

I don't think the issue is the Judge's claim that the victim's intoxication makes conviction more difficult. That's plainly true.

The issue is, rather, the claim that "the rape conviction rate would not improve until women stop drinking so heavily". There are a lot of reasons why rape conviction rates are so low in the UK, and most of them don't have anything to do with the intoxication of the victim.

It reads as an abdication of responsibility on the part of the legal system, a refusal to acknowledge that there are any meaningful reforms that might be undertaken to improve conviction rates. In no other context that I can think of would the legal system observe a serious crime being committed so frequently and with such poor conviction rates, and respond with a shrug.

edit: sorta x-post with Arwon and Mise?

Mise said:

Yeah, this is what I was going to say. The judge is wrong when she says that the only way the conviction rate will increase is if women stop drinking. This is nonsensical and demonstrably false.

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That's fair to say. Putting alcohol as the only cause of low convition rates is indeed false.

However, that still doesn't mean that it isn't a significant cause. And merely saying "we need to make society less sexist" is not going to address that problem, nor is criticising people who raise the issue.

PhroX said:

That's fair to say. Putting alcohol as the only cause of low convition rates is indeed false.

However, that still doesn't mean that it isn't a significant cause. And merely saying "we need to make society less sexist" is not going to address that problem, nor is criticising people who raise the issue.

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What do you consider a "proper discussion on rape", since you started the thread specifically about this?

PhroX said:

And merely saying "we need to make society less sexist" is not going to address that problem, nor is criticising people who raise the issue.

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Who is suggesting that it will?

How exactly though can you make a claim that you were raped if you were too drunk to remember what happened?

What the judge said is correct, this isn't blaming the victim of they cant even remember whether or not it happened.

bhavv said:

How exactly though can you make a claim that you were raped if you were too drunk to remember what happened?

What the judge said is correct, this isn't blaming the victim of they cant even remember whether or not it happened.

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If I'm too drunk to remember that's a pretty good sign I was not able to give ongoing consent, assuming I was still cognisant at all.

Here's the CPS guidelines on consent: http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/

There are two parts to it: whether the victim actually, in fact, consented, and whether the defendant reasonably believed that the victim consented.

In terms of the former, here are the relevant bits:

The question of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs.

In R v Bree [2007] EWCA 256, the Court of Appeal explored the issue of capacity and consent, stating that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant's state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, depends on the facts of the case.

In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and ensure that the instructed advocate presents the Crown's case on this basis and, if necessary, reminds the trial judge of the need to assist the jury with the meaning of capacity.

Prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from friends, taxi drivers and forensic physicians describing the complainant's intoxicated state may support the prosecution case. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and the effects if they are taken together. Consideration should be given to obtaining an expert's back calculation or the opinion of an expert in human pharmacology in relation to the complainant's level of alcohol/ drugs at the time of the incident.

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As for the latter, I think the bolded bit is important:

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps (A) has taken to ascertain whether (B) consents (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

The Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:

Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

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EDIT: To clarify, even if the woman was, in fact, too drunk to consent, the prosecution needs to show that the man reasonably believed that she was too drunk to consent, but had sex with her anyway. The defence just needs to demonstrate that the man took reasonable steps to ensure that the woman consented and was capable of consenting.

One should look at the John Worboy's case, where his victims possibly total up to a 100, possibly more.

The commander of Greenwich police was moved on due to failings in this inquiry and another murder investigation. A spokeswoman for Women Against Rape said that "We hope that some senior officers will face dismissal over this and similar cases." The handling of Worboys' case was brought before the Independent Police Complaints Commission, who concluded that proper investigations could have prevented some of the attacks. Five officers had complaints against them upheld, but none were dismissed. This decision was criticised by one of the victims and her lawyers, who say that she was laughed at by the police when she reported her assault. Due to this case, the Metropolitan Police has created a central intelligence unit to investigate serial sex offenders.[16]

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Rape culture is a thing that exists and this case shows it, these women who were drugged with sedatives and then raped, were often ignored and not believed. It shouldn't have taken this long for this piece of human waste to be caught, but because of a reluctance to take rape seriously and to dismiss it, he has more victims.

El_Machinae said:

We run into a bit of a problem when both partners are drunk. Just because you're drunk, it doesn't mean you can have sex with someone who cannot consent.

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Right, but is this predicated on the bits and parts that make it so that one person has sex with another person, rather than two people have sex with each other when neither can consent? Or is that where the mess is, I'd think the latter?

(bulk replying...)

Arwon said:

What do you consider a "proper discussion on rape", since you started the thread specifically about this?

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People being able to discuss issues like this without being accused of promoting rape perhaps? As that seems to be the usual response. So far, this thread is looking pretty good on that metric!

Arwon said:

If I'm too drunk to remember that's a pretty good sign I was not able to give ongoing consent, assuming I was still cognisant at all.

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It's quite possible to be drunk enough that you forget what has happened when you wake up the next day, without neccesarily appearing to be completely out of it. I've had times when I've woken up without memories only to be told by the people I was out with that I hadn't seemed that drunk at all. I can easily picture someone appearing to be in a state where the are capable of giving consent, while being drunk enough that they forget. And as Mises points out, that is the key thing. If you have good reason to believe someone is capable of giving consent, and they do so, it isn't rape. So it'll come down to the main claiming he did ensure consent was given, and the woman saying she doesn't know. Can anyone ever be sure beyond all reasonable doubt that the man is lying?

useless said:

One should look at the John Worboy's case, where his victims possibly total up to a 100, possibly more.

Rape culture is a thing that exists and this case shows it, these women who were drugged with sedatives and then raped, were often ignored and not believed. It shouldn't have taken this long for this piece of human waste to be caught, but because of a reluctance to take rape seriously and to dismiss it, he has more victims.

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That was indeed a horrendous case, and indeed in some cases rape complaints are overlooked, in this case due to police incompetence (that phrase seems to come up too often these days in this country...). However, how many of those cases are overlooked because simply there is no chance of prosecution? Not due to any "sexism", but simple practicalities? I'm not claiming this applies to all such cases, or that "rape culture" doesn't exist, but I'm wondering how much of this is which? Hell, even in the example you link, I can't remember the details of the case, but based on the summary wiki gives, with Worboys first arrest, it would seem to fall pretty close to the unprosecutable: she claims rape, he claims consent with some alcohol involved.

That isn't even mentioning the news that has just broke in the last day or two; 1000+ victims of rape, that both the police and the political establishment of Rotherham CHOSE to ignore, because they believed that the victims were sluts (despite many being under the of 16-18) and a micture of classism as well.

I view the judge's stance as nothing more than victim shaming.

Women can get drunk as much as they want, they shouldn't have to worry about getting raped. Telling them to stop drinking so much so they don't get raped is equivalent to telling women to stop dressing so slutty so they don't get raped.

Mind you, "stop drinking so much" is good advice generally speaking, but in this context it is putting shame on the victim as opposed on the perpetrator of the crime. I think Mise also mentioned that the reasons why people don't report rapes are quite different than "I drank too much".

This judge is not approaching this thing right at all, but I guess good on her for trying? If she were a teenager I'd let it slide, but..

warpus said:

I view the judge's stance as nothing more than victim shaming.

Women can get drunk as much as they want, they shouldn't have to worry about getting raped. Telling them to stop drinking so much so they don't get raped is equivalent to telling women to stop dressing so slutty so they don't get raped.

Mind you, "stop drinking so much" is good advice generally speaking, but in this context it is putting shame on the victim as opposed on the perpetrator of the crime. I think Mise also mentioned that the reasons why people don't report rapes are quite different than "I drank too much".

This judge is not approaching this thing right at all, but I guess good on her for trying? If she were a teenager I'd let it slide, but..

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While I certianly agree that women shouldn't have to worry about getting raped when then drink, the fact is that they do. And because of them drinking so heavily, it is often impossible to convict the rapists. I don't see how pointing that out is "victim shaming", it's simply accepting the sad reality of the world.

Why is the onus so heavily placed on the victim, not the perpetrator?