Rape is understandably a sensitive subject. Unfortunately, however, these days it’s difficult to say anything at all reasoned about it without creating a storm of protest by activists of some kind or other. A story last week arising from the Crown Prosecution Service’s (CPS) attempt to improve its approach to rape cases is a case in point.
No one can say that the CPS’s handling of rape has shown it at its best in the last couple of years. Its conviction rate is down to 32% for young men aged 18-24 (though it does go up for older men). And as some readers may remember, last year it suffered a galling catalogue of failures.
These include the debacle with Ched Evans, finally acquitted at a retrial in 2016, after over two years in prison on the basis of new evidence the CPS had fought tooth and nail to keep out; a series of collapsed trials last year following high-profile failures to provide proper disclosure to defendants’ lawyers; and, of course, the laughable though serious suggestion by ex-Director of Public Prosecutions (DPP) Alison Saunders that the complex issue of lack of consent was just as simple as refusing a cup of tea.
Last week, no doubt with the approval of the new DPP Max Hill, an attempt was made to stop the rot. CPS rape prosecutors were given straightforward advice : look at the evidence carefully, use judgment, avoid prosecuting what seem to be weak or doubtful cases, and concentrate on those with a good chance of a conviction.
Failed prosecutions for rape traumatise defendants and complainants, grievously waste resources, and tarnish the legal system as a whole.
One might have thought this rather sensible advice. Failed prosecutions for rape traumatise defendants and complainants alike, grievously waste resources, and tarnish the legal system as a whole. Not so, however, the progressive establishment. They promptly rose up in arms.
A high level of acquittals by juries must, they said, be due to the influence of deeper social problems and a prevalent “rape culture”. What was present was simply old-fashioned prejudice and victim-blaming; a misogynistic inclination to believe men over women; a false belief that a victim could not complain if drunk or disinclined to fight back; and a misguided inclination not to wreck the prospects of young men at the beginning of their adult lives.
And their solution? Not only tackle these antediluvian beliefs of jurors in so-called “rape myths” (according to unnamed “experts” at the CPS, rape juries needed “training”, but if anything increase prosecutions: as the Guardian put it, even if the case might seem weak, “prosecutions play their part in deterrence.”
Looked at more closely, however, it’s difficult to avoid concluding that this episode tells us not a great deal about the realities of rape, but rather a lot about the progressive establishment, its beliefs and how it comes by them.
We can begin with the demand for prosecutions even where the case looks weak. Although it can be said that this provides a wake-up call for men (deterrence) and is only fair as providing “access to justice” for complainants, there is another way to read it. It comes close to this rather unpleasant idea: even if you can’t jail someone, it’s OK to make their life hell, because the complainant is entitled to see him squirm. Welcome to the brave new world ushered in by #MeToo.
Again, it is worth taking a closer look at the frequent references to a rampant “rape culture”. Take, for instance, the proportion (eight per cent in one case) of women who in surveys say Yes to the question whether they were raped at university. It’s not that figures like this are necessarily dishonest, or even incorrect.
But think: what was defined as rape by the questioner? If no definition was given the figure is worthless. If the legal definition was given, it is an uncomfortable truth that under it there is such a thing as purely technical rape. If a girlfriend or wife in a loving and long-standing relationship wakes up to find her partner has – to put it crudely – entered her in her sleep, that is arguably rape; however gratified she may feel afterwards, there is no consent in the eyes of the law.
It’s the same, it seems, if a loving couple both go to bed blind drunk one night and somehow sex takes place. If she’s too drunk to consent, that’s it. (She may also be technically guilty of indecent assault on him, but we can leave that aside). True, no-one – not even an obsessive prosecutor in his most messianic mode – would prosecute such cases: but one suspects this is the sort of thing that is by no means infrequent, and any honest respondent to a confidential questionnaire would have to count it in.
A high level of acquittals by juries, progressives say, must be due to a prevalent “rape culture”.
Although we’re not allowed to know what goes on in the jury room, there must also be room for scepticism over allegations that acquittals are due to the fact that jurors are regularly prejudiced or misogynistic. With juries these days nearly all mixed, if not equal-sex (and a fair number having gone through our predominantly left-wing higher education system), there should be enough jurors to give short shrift to any suggestion or inference that a man’s word counts more than a woman’s: any suggestion that the women won’t complain because they are all likely to have been subverted by the patriarchy is faintly ludicrous.
There’s another point about juries, too. Juries are not fact-finding machines or truth-discovering automatons there to do as they are told and get the right answer (though those calling – frighteningly – for rape jurors to undergo special training by experts might seem to think otherwise). They rightly have an inherent scepticism and sense of fairness: that’s why we have the jury system in the first place.
In rape cases as elsewhere, they are told in no uncertain terms to give the benefit of every doubt to the accused. In addition many will realise that for a young man to spend five years or more in jail, often segregated for his own protection since rapists are not popular in prisons, is no joke. It is not only unsurprising, but heartening, that in a case of the complainant’s word against the accused’s they should be unwilling to condemn an accused to this unless absolutely certain that she is right and he is not, even if the result is a devastated complainant. Put bluntly, they realise that accused’s interests are more important than her distress.
And there is also the sense of fairness, which may explain, for example, the unwillingness to upend a young man’s career at an early stage. We know that (thank heavens) most rapes are committed not by strangers but by those known to the accused. And it is precisely here that, outside the rarefied atmosphere of academic law, nuances can arise.
If the evidence is that an accused deliberately got a victim drunk in order to have sex with her when she passed out, he is unlikely to deserve or get much sympathy. But suppose two nineteen-year-olds go out for a heavy night of clubbing, drink and Ecstasy on both sides and she later remembers waking up to find she has had sex. Here they may well think differently.
It’s not a matter of a belief that negligence by the claimant justifies rape, which is simply silly. It’s more likely to be a feeling that it is simply unfair to throw the book at him for an indiscretion involving both of them. Again, imagine (once again with apologies for graphic detail) that consent is suddenly withdrawn at the last minute, when his pants are down and he is on top of her. There is no doubt that this is rape, but many people would understandably feel that several years in prison is wholly excessive in such a case, and it would be understandable if they acquitted in order to avoid it.
The problem lying behind large-scale acquittals in rape cases, in other words, is not so much that juries lack empathy or intelligence, as that they have both: that they see that matters other than the strict law may be important in reaching their decisions as to what is to happen to a hapless defendant.
Of course, those who see the whole question in a semi-religious way as a Manichaean contest between toxic masculinity and female integrity won’t see this point. But the fact that there’s a great deal that the progressive establishment can’t see is no reason for us not to point it out.
(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath).