Rape victims

Imagine a large, well-furnished room. It is well lit, with no windows. It is soundproof. A psychological experiment is to be conducted. John, a twenty-one year old man, and Mary, a nineteen year old woman, are placed in the room and the door is closed. Eight hours later, the door is opened and John and Mary are interviewed separately and asked to describe what happened during the eight hours in the room. They both give honest and plausible accounts. At least, you think they are both honest but there is a problem. Their accounts are completely different. How do you establish who is telling the truth?

It is not possible.

Change the scenario a little. The room becomes a student bedsitter in a University Hall of Residence. John and Mary voluntarily enter the room together late at night after a party. They have both been drinking. The next morning, Mary leaves the room in tears and tells a friend that John made her have sex against her will. The friend calls the police. John is arrested. John agrees that they had sex, but says it was consensual. How do you establish who is telling the truth?

It is not possible.

To make it more difficult, the “truth” has to be established “beyond reasonable doubt”. Put like this, it is not surprising that it is so difficult to secure a conviction for rape. In the UK, only about 6% of rape cases result in a conviction. These conviction figures cause outrage, and not just amongst women. For no particular reason, the Washington Post has just carried a long article entitled

“In Britain, Rape Cases Seldom Result in a Conviction”
10 to 20 percent of rapes are brought to authorities' attention. According to government figures, 14,000 cases a year are reported and 19 out of 20 defendants walk free. Thousands of victims each year once chose not to go to police because of shame, women's advocates say. Now, the advocates say, the bigger reason is that rape victims feel the system is stacked against them.


The UK Solicitor General, Vera Baird QC:

"There will never be proper female equality and appropriate dignity afforded to one-half of the population if it's possible to rape somebody and get away with it"

A succinct restatement of the problem which, like the whole of the Washington Post article, offers no solution. The conviction rate for rape may be much higher in the USA (over twice the UK rate) but, as we shall see, this may in fact show that the pendulum has swung too far making some male defendants victims of miscarriages of justice.

From my personal experience of counselling rape victims, I have not the slightest doubt that the system is stacked against them. The police are far more approachable and sympathetic than they used to be, but once the dreaded word “alcohol” appears, they begin to lose interest. Mary may be an attractive teenage girl who was wearing a short skirt and had had two small glasses of wine. She is already at a disadvantage. If Mary has also had a number of previous sexual relationships, she may well not be prepared to face cross-examination. We still cannot tell what went on in that locked room that we originally postulated. Attempts are made to discover what Mary did in the months before she went into the room and thus "predict" her likely subsequent behaviour. Such an examination of previous behaviour is both prejudicial and offensive.

The English common-law system, adopted by so many other countries, is adversarial. In all criminal trials there must be a “winner” and a “loser”. It is like a boxing match. The judge is the referee, there to ensure that the rules of the game are followed. The judges of fact are the jury, who must declare the "winner" making their decision on a “beyond all reasonable doubt” basis. Most members of the jury have probably had sexual experiences whilst under the influence of alcohol that they have later regretted. Mary may say she did not want to have sex with John, but she had been drinking heavily, and went back to his room consensually. The seeds of doubt are sown.

The controversial, adversarial nature of rape cases is not helped by some of the more militant feminists. We looked recently at some of their writings on “obstetric rape”.

I have never been raped, in the sense of that word as most people use it, so I can’t say, “It felt like rape”. But it certainly felt how I would imagine rape feels. And all the ingredients are there: man penetrating woman’s body, woman telling him to stop, man carrying on regardless…. (Debs)

A woman who is raped while giving birth does not experience the assault in a way that fits neatly within the typical definitions we hold true in civilised society. A penis is usually nowhere to be found in the story and the perpetrator may not even possess one. But fingers, hands, suction cups, forceps, needles and scissors… these are the tools of birth rape and they are wielded with as much force and as little consent as if a stranger grabbed a passer-by off the street and tied her up before having his way with her. (Amity)<>

Sometimes, men get a very raw deal indeed.

Gemma Gregory falsely accused seven different men of rape. Why did she not go to jail?

It is not deemed politically correct to put the case of the male “victims” of rape and so it was good to see a courageous article by an American psychologist putting just such a case. The article is courageous because she is female. She quotes Kathleen Parker:

The assumption of guilt when it comes to males and rape is so entrenched in the American psyche that we ignore our better sense and embrace the righteousness of the mob. The same feminist spirit that successfully fought to eradicate the "she deserved it" attitude toward rape victims inexplicably found acceptable an equally unjust "of course he did it" attitude toward men. (Kathleen Parker)

Dr Helen Smith : When False Rape Allegations Ruin a Reputation

What is the solution? Is there a way to achieve a fair result in rape cases? Can we ensure that women who come forward will be treated fairly and sympathetically and neither man nor woman will start at a disadvantage? I do not believe this will ever be possible with the English (American) common law adversarial systems. Our initial “closed room” experiment shows the impossibility of making a decision on a “beyond reasonable doubt” basis. We could reduce the standard of proof to an “on the balance of probabilities" level but that would bring more injustice. More men would be convicted, but many would be convicted unfairly. I suggest the best solution for rape cases is to move from our adversarial system to a more inquisitorial system. A judge experienced in rape cases sitting with independent expert assessors, all capable of reviewing the evidence impartially. And both the “victim” and defendant should be anonymous until the decision is made.

It would not be perfect. The world-wide conviction rate is still far too low. In Islamic countries a rape victim is still quite likely to end up being punished for promiscuity.