I want to be clear about something before I start here; it is a public scandal that a mere 5.6% of reported rapes result in a conviction.
What is equally scandalous, however, is this figure appears set to used, yet again, to justify a further assault on the standards of justice in British courts and on the independence of the judiciary.
To begin with, I want to put this figure for convictions of 5.6% into its proper context.
While it is true that only 5.6% of reported rapes (2002 figures) result in a conviction, the actual conviction rate at trial in this year was 48% and, in general, averages somewhere between 50-66% over time. Between half and two-thirds of all rape cases that go before a jury result in a conviction. This is still low by comparison to many other offences, where conviction rates of 80-90% are more the norm but not an entirely unacceptable figure as statistics go. (Of course, any time that a rapist is wrongly acquitted it is unacceptable but as Stalin correctly noted, “one death is tragedy, a million is a statistic
It’s not ‘all because of one case’ that the notion of consent is being re-examined. There have been a number of cases where the question of consent has been problematic, producing verdicts both for and against defendants that have been controversial. The ‘drunken consent’ case in Wales is only the most recent one – and which got a lot of media interest because it appeared in the middle of a discussion about rape conviction rates.
Re-examining the definitions of consent does not automatically mean injustice is around the corner. If the issue of consent has become a problem in court, then we need to have clearer guidelines about what is meant for the benefit of the courts and the public. It doesn’t necessarily mean that law needs to be changed: that’s only one option. We need to be careful, but the periodic review of law is not unusual.
You also seem to miss the part where the Solicitor General says he’s not interested in changing the burden of proof in rape cases because it would carry a greater risk of jailing innocent people.
Let’s clear up a few points.
There may well have been other cases where consent has proven problematic since the change in definition introduced in the 2003 Sexual Offences Act, but none with anything like the profile of the Swansea case – it is only with this case that the media has got involved and a public debate has opened up and only since this case that anyone in government has started making noises about possible reviews.
This is despite the fact that the attrition study, which contains much that it worth reviewing, particularly in relation to the investigation process was published in February this year.
And let’s not forget that this is New Labour we’re talking about who, of course, have no previous form for making knee-jerk responses to moral panics.
Case law takes time to evolve and develop – a periodic review of the law might be something you do even 5-10 years. We’re in the middle of a periodic review of the law as it applies to murder right now, a law that has stood largely unchanged for 50 years.
2 years down the line, which is all it is with consent, is not a periodic review, its politicians meddling in jurisprudence – and if that’s not convincing enough there’s also the proposal that only judges who’ve been ‘trained’ should be allowed to hear rape cases. That’s ‘trained as in ‘indoctrinated in our way of thinking’ and fuck the independence of the judiciary.
AS for Mike O’Brien’s comments, this is not about whether or not he’s ‘interested’ in shifting the burden of proof – its not about interest, shifting the burden of proof and diminishing the presumption of innocence (which is what the definition of consent in the 2003 Act does) is simply not an option at all.
O’Brien might just be trying (badly) to be diplomatic but I really do think he should have been more categorical in his comments.
Then again, we can trust him and his colleagues, like Charlie Falconer who thinks banning protests from Parliament Square supports free speech, can’t we?
I understand your concerns and I share many of them, but why does specialist training automatically mean indoctrination? Exactly what is that ‘way of thinking’ that is so dangerous? Are judges who have the expertise to handle complex financial fraud trials also dangerously brainwashed?
Would the terms of that training also not be mainly set and approved by the judiciary themselves, as with all formal legal qualifications?
While I understand your pessimism, I still think there’s the opportunity for some productive reform.
Another way of looking at the statistics is that only the “best” rape cases ever make it to court (since the weaker cases are weeded out) and we still only get a conviction rate of between a half and two thirds.
why does specialist training automatically mean indoctrination? Exactly what is that ‘way of thinking’ that is so dangerous?
Because behind this idea of ‘training’ judges to sit in rape cases lies the whole false credo of “victim’s rights” that the government currently pushing at every opportunity.
As I see it, the right to justice belongs to all equally, hence the idea of equality before the law. If you listen to the government at present, that’s not what they’re peddling – all the talks is of ‘victim’s rights’ as though these are somehow different from those of the defendent. What is being introduced, wrongly, is the idea that some people are more deserving of rights than others.
That idea is bound to infect any training given to judges, the expectation will be that before sitting in rape cases they take on board Blair’s notion of rights which hold that the alleged victim is more deserving (and had more rights) than the alleged perpetrator.
The idea is no more than an attmept to inculcate judges with the official, government approved, interpretation of the law and deliver more convictions by rigging the system at the top and introducing bias under the justice system by the back door.
There are two ways you can seek to improve conviction rates in rape cases.
You can either improve the quality of investigations and evidence brought to court, which is the right way but expensive and slow to implement and deliver results in official statistics due to the lead time required to set up and train specialist investigation/prosecution teams. This way is more difficult to achieve but delivers more and better justice in the long run.
Alternatively you can just make it easier to get convictions by rigging the system against defendants – you may get more convictions more quickly this was but you also get an increased risk of miscarriages of justice.
Look at the government’s track record over eight years, at ASBO’s, the Terrorism Act, etc.
Now tell me which approach are they more likely to try and adopt.
Natasha and Rape
Rape is one of the most heinous crimes. On conviction, it rightly attracts a maximum sentence of life imprisonment. Those
Unity,
I’m not sure that’s right. Although I’m reluctant to use the exprssion “rigged”, certainly the changes in the law have made convictions more difficult. I suspect juries are reluctant to convict when they are presented with “the believe the complainant or the accused”. Too many of those sort of cases are being presented to them.
t
Women are precluded from committing rape by virtue of not having penises.
As to whether “training” would amount to indoctrination, first it would be nice to know what the content of such a training course would be. Secondly, judges would be able to ignore such training, as judges have almost complete security of tenure. The only reason for them to be constrained in deviating from such training would be where such deviation amounted to a material irregularity in the conduct of the trial, prejudicing the conviction. This would then allow the convicted rapist to appeal and have their conviction quashed; this would not negatively impact the judge, but it is to be assumed that judges do not wish this to happen.