Tuesday, March 27, 2007

That drunken rape case part II

I wrote this post yesterday about the case of Benjamin Bree who had his conviction for rape overturned at the Court of Appeal yesterday. Firstly I stand by what I said yesterday.

The Daily Mail has this report, from which I will quote a little.
"A woman who is very drunk may still be capable of agreeing to sex, they said."
Well, yes.
"The girl drank between four and six vodka Red Bulls and two pints of cider and Mr Bree was also drinking heavily."
I have seen some people, more so women, who would be floored by a pint, but then I have seen men and women drink enough alcohol to put an elephant to sleep and still seem perfectly lucid.
"They returned to her hall of residence at Bournemouth University, where, she told Bournemouth Crown Court last year, she was 'continually throwing up'."
There are all sorts of reasons why people throw up after a night out. being far too drunk is only one of them so unfortunately this does not tell us enough.
"She said her next memory was waking up to find Mr Bree having sex with her. She told the jury her memory was "very patchy" and I knew I didn't want this but I didn't know how to go about stopping it"."

Mr Bree told the court she had given her consent and "seemed keen".
Here in lies the real problem with these sorts of cases. We do not know (admittedly the details are still very sketchy, I have not seen the actual handed down judgment which may not be available for weeks) neither does the complainant whether there was some action or words which would amount to consent and we do know that when she wanted to withdraw consent she did not because she did not know how.

In these circumstances it is entirely possible for the victim to feel raped whilst the defendant has done nothing wrong, at least from his point of view. What is a jury asked to find guilt beyond reasonable doubt supposed to think? Without a fully filmed incident (with sound) we can only go on the testimony of those concerned.

Deputy Lord Chief Justice, Sir Igor Judge went on:
"However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape." The judge said it would not be right to lay down rules - "some kind of grid system" - that say a woman who has reached a set level of drunkenness is incapable of consent.

He added: "Experience shows that different individuals have a greater or lesser capacity to cope with alcohol.

"Provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves."
Sentiments with which I would entirely agree.

So what has the government been up to as far as rape law is concerned?

Well apparently it wants to "toughen the law" setting out new provisions covering rape and alcohol. Apparently Home Secretary Dr. John Reid and his ministers remain committed to increasing the number of convictions for rape which as it results in only one man convicted for every 20 rapes reported they say is too low.

Well, it is, the question is what you do about it.
The Home Office said yesterday: "We need to tackle the myths, particularly the view that victims are either partially or fully responsible for the assault they have experienced if they have been drinking.
Surely the question here is not whether the victim "bought it on themselves" but whether the intercourse was consensual or not, because if it was consensual then there is no victim.
"Rape is never the responsibility of the victim, whatever the circumstances."
This is of course trite rubbish. Lets look at two remarkably different sets of circumstances. Firstly let us take the outrageously dressed and serial one night stander who walking home one night gets attacked by a stranger. It matters not what their moral character was or is, because stranger rape tends to revolve around two simple questions, did intercourse happen, and if so, was it the defendant who did it? It matters not a jot how many partners the victim had, how "provocatively" they were dressed or indeed how drunk they were.

Then let us take a pair of people who meet up, chat, drink, and go to one of their places, having been all over each other all night. It happens. It is a regular occurrence. For the most part it does not end with any allegations at all, other than "you snore". Circumstances lead to one thing and another. Both parties seem "up for it" (at least in the eyes of the other") and at some point one of the parties decides they don't want this any more.

The question then becomes was there consent. Well, it can be hard for a jury to tell. In this case from the Daily Mail report the "victim" recognised that she ceased to consent, but was unable to communicate that. What we do not know is how the defendant came by the original consent other than she "seemed keen". Well drunk people can be keen to do all sorts of things.
The Home Office has been considering a study by the Association of Chief Police Officers which found that a "significant" number of rape and sexual assault victims had drunk at least the equivalent of eight pub glasses of wine. This is equivalent to two and a half times the drink driving limit. At these levels, said the ACPO study, a woman can be expected to show "marked intoxication levels".
Well, this is the problem. What are people supposed to do? In our liberal age women as well as men like to go and pick up casual partners, like to have a drink and like to do things. How is anyone supposed to tell whether someone likes it after a few drinks, or whether they are taking advantage of someone?

The problem is that it is always going to be hard for a jury to tell, unless you can't have intercourse unless you have a prescribed blood alcohol level (what do you do? nip off to a police station to get a breath test certified and promise you have no alcohol at home?). This is clearly unworkable.

So then we go back to the real issue which surely can't be how do we convict more people of rape, but how do we reduce the number of people being raped, and this has to be through education, whether at school or through public information broadcasts.

We have to educate people to avoid these situations. The alternative is to assume the accuser is right and the accused wrong. To do that would do serious harm to our country.


Not Saussure said...

The full judgement, should anyone wish further and better particulars than those in The Daily Mail, has now been published on Bailii.org

Anonymous said...

What is now called rape is more often what I, and my friends, called morning after regret. This was in the 60s and we put it down to experience, no wonder juries won't convict in these circumstances, neither would I. It is just too big a risk ruining someones life on disputed evidence. Same with sexual harrassment, in the past there were always a few sex pests but we just laughed at them and warned new girls not to be alone with them. If only these fools knew just how pathetic we thought they were. Maybe we were made of sterner stuff or the definition of rape has changed too
much but I can see no way,in such cases, the law can be made fairer to both sexes.

Benedict White said...

not_saussure Thank you very much, interesting read. I was going to go back and look for it in a couple of days.

I find it interesting how the judge highlights how pointless the Sexual Offences act 2003 was by showing how it already applied in common law before it was passed.

Cherie. It is difficult to say. My main point was that people do what people do. When one cries foul how are we supposed to judge absent of other evidence?

Would it not be better to educate people about the danger rather than spend a lot of time and money laying down in law what appears to me to have already been laid down in law?

Not Saussure said...

I think a lot of the problem is to do with the way rape trials where the issue is consent are discussed in the press. They tend to get written about in terms of 'Is this rape?' when, in fact, most of the time the answer's quite clear -- yes, it is, but only if the jury is persuaded to the criminal standard that this is the way it happened.

Nor, in fact, is the jury asked 'who do you believe, him or her?' What they're actually asked is 'Are you sure he might not be telling the truth?', which is a bit different.

Benedict White said...

not_saussure for the most part I agree. The fact is that if the jury believed a set of facts to be the case then in many instances they would have to convict. At the end of the day it becomes a matter of evidence. Short of some forensic evidence indicating force it becomes a question of who you believe, and do you believe the complainent beyond reasonable doubt.

Hence my suggestion that education is needed to get people to avoid these sorts of situations in the first place.