Archive for the ‘ Rape ’ Category

Some deserving messengers…

Belying the parting shot (literally!) at the end of my last post, here are a few interesting articles regarding the DSK case or rather, now it’s been dismissed, the ‘affair’. 

  • Clyde Haberman, who writes a blog hosted on the New York Times website, gives a stern but fair account of the unravelling of the case, both regarding the legal proceedings but also the wider context of what has happened, or seems to have happened… 
  • This article in the Independent is a more emotional account of why rape victims must have flawless past to get justice. It’s not just because of procedure governing the criminal trial though, and has much to do with the way rapists ‘pick’ their victim in the first place (hint: it’s not the ‘pretty’ or ‘sexy’ ones…). This is an important and rarely considered point, though the way Joan Smith applies it to the DSK/Diallo case is not exactly fair to the prosecutor. She asks: 
Are prosecutors really saying that anyone who has lied on an asylum application cannot be considered a credible witness in an unrelated matter, no matter how many years later and regardless of forensic evidence supporting their claims?
Although she obviously sees this as a rhetorical question, it is in fact not what the prosecutors are saying in their decision… If that were the case, it would indeed
be setting the bar too high, as well as sending a message that some potential victims cannot expect the protection of the law.
  • And, finally, from across the smaller pond, an article (in French) by an American lawyer reminding all those envious of such an expeditious and seemingly fair criminal justice system. Not only was a powerful and influential man arrested within a few hours of his being accused of rape by a chambermaid, but in four months, and after only a few days in prison, the case was resolved. However, as Mr Greenfield reminds us, it is 
but another example of a horribly imperfect system, upon which many lives depend, which has just had the good fortune of working well this time…
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All’s fair in sex and law?

I’m going to make a wild assumption here, and guess that most of you won’t have read the ‘Recommendation for Dismissal’ filed in the case of the People of the State of New York against Dominique Strauss Kahn… And to be honest, it feels like many journalists haven’t either.

Which is a shame though, as it makes for a very interesting and instructive reading. It is hard enough to get any sense in stories of rape accusations, and even more so when there are politics and power involved. Which is why the motion to dismiss is impressive in its clarity and pedagogy to explain why the charges against Mr Strauss Kahn were dropped, point by point.

The proceedings

The initial important thing to remember is that nothing has been decided. The dismissal of the case does not indicate guilt or innocence, it merely indicates that there is not enough reliable evidence to put the case to a jury. The case can always be opened again one day if new evidence comes to light, or indeed if the complainant decides to bring a complaint in France.

However, in the meantime, the charges are dropped, and now that the court of appeal of New York has rejected the request for a ‘special prosecutor’ to be appointed, DSK will soon be free to go as he pleases, which will probably be back to France.

But what of the evidence you might say? Hasn’t Ms Diallo been vilified because she happened to have lied years ago on her asylum claim and she kept dubious company? Isn’t the physical evidence overwhelming, including vaginal bruising, semen and DNA samples around the suite and even blood?
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The rape of humans

This Sunday morning, thanks to my empty fridge and bad shopping, I had to venture out for breakfast and came across a fascinating and harrowing article over my cup of coffee. An occupational hazard of working on sexual offences is having to read accounts of fairly harrowing stuff on a regular basis and I do sometimes wonder whether I might become a little jaded by it all. Yet every now and then, something happens to remind me both of the fact that I do care and of why I do what I do.

And my Sunday morning reading was just one of those moments. The article deals with the issue of the ‘rape of men’, and how it affects war-ridden countries and I highly recommend reading it (though you might not want to read it over breakfast, or any meal for that matter). It’s not just the account of what is done to these men that will knot your stomach, but also the account of what happens to them afterwards and how the victims seem condemned to a life of pain, physical, psychological and emotional excruciating pain.

As the article points out, the issue of male rape is a little considered issue, and this is true both in terms of war crimes but also regarding sexual offences in general. The rape of a man was only recognised in English criminal law in 1994, the same year that the courts (finally) held that non-consensual sex between husband and wife was still rape, even if they were married.

The legal formulation stays clear of any gendered approach and relies instead on the physicality of the act. Because rape can be committed by anal penetration, then it can be committed against men. This is one of the many ways the concept of rape has changed drastically over the last century or so. From ‘stranger-rape’ to ‘date-rape’, from vaginal penetration to anal or oral penetration and from female to male victim.

Maybe the next step is a more radical and even more important shift in our understanding of rape. Namely that it isn’t to do with sex or attraction at all. That it is about power, coercion and violence rather than sexual desire, and that it’s that behaviour as imposed on others which needs to be condemned, punished but also better understood.

This does not mean that an act of rape or sexual assault is the same as any act of physical violence, but rather that the sexual element of it is a consequence rather than a cause of the act itself. In the article, we hear from men who are highly traumatised by what happened to them, some even suicidal. The impact of being raped on these men is not just the act itself and the physical repercussions. It’s also how they are treated when they get back home, by their wives, their doctors and society in general.

The violation of one’s intimacy and sexual integrity, followed by a dysfunctional social response is what makes these crimes truly terrible. This is the same whether the victim is male, female or indeed a child, and it is the same if the act takes place in war-torn Africa, a dimly-lit park at night, or in a conjugal bedroom.

And so maybe we should stop fooling ourselves that raping someone is about sex: it’s just another, terrible way to hurt someone, which has incredibly traumatic consequences. And maybe if we do so, then we might realise that the problem here is violence, not sex. And while this will unfortunately not stop all rapes, it might just make things a little easier for the human victims of it…

Rape Roundup

In the spirit of ‘smartened up debate‘ and before everybody gets sick of talking / reading about it, here are a few points about the non-debate on rape last week and the many issues that were or should have been raised…

Rape is ?

The cause of the whole controversy was Ken Clarke’s comment about what constitutes ‘serious rape’ or ‘rape in the ordinary conversational sense’. This is obviously a very bad choice of words and something the Justice Secretary has rightfully apologised about. After a week of commentators, politicians and journalists worriedly repeating ‘rape is rape’ just in case someone might think they didn’t think that it was, maybe it would be a good idea to remind ourselves what the definition of rape actually is:  

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) 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.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life

No ‘jumping from behind a bush’, no ‘victim must be appropriately dressed and reasonably sober’. The only requirements are:

  • A penetration, by a penis, which means that rape can only be committed by a man. Students often perk up at this point and make the ever-incisive comment that ‘what about a man raped by a woman’? What about it indeed? Well, that would be covered by an offence of sexual assault, which is defined in section 3 of the act, though I’m not sure how practically relevant to criminal law a ‘woman on man’ rape really is.
  • The act can be committed against both a man or a woman, and forcing someone to do a blowjob is rape too.
  • There is no consent to the penetration itself. Consenting to dinner / a drink / 10 drinks / a grope / any sexual act does NOT imply consent to the penetration. In fact, even if there was consent to the penetration but consent is withdrawn, everything else should be withdrawn too…
  • Consent is a difficult thing to prove, which is why many rape cases hinge on that particular issue. There are situations where it will be presumed that consent was absent, as was discussed in this blog before.
  • If there is a reasonable belief that there was consent, then it was not rape. The excuse that ‘No means Yes’ will not cut it, it has to be shown that care was taken to find out about consent and that anybody else could have made that mistake.
This is what rape is. However, this is not what Ken Clarke was actually trying to talk about at all…

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Dumbed Down Debating

The real winner of this week’s latest fracas controversy debate on rape is probably the BBC and the producers of BBC Question Time. The programme obviously hit the jackpot when Ken Clarke put his foot in it, two days before the show was to be recorded at Wormwood Scrubs prison. In fact, in these conspiratorial times, it’s enough to make you wonder if Ms Derbyshire wasn’t purposefully trying to trick the Justice Secretary…

In any case, the show made for interesting, if somewhat confusing viewing. Interesting that, to the left of the master of ceremony, Shami Chakrabarti of Liberty was siding with Ken Clarke, while to the right New Labour’s justice tsar Jack Straw was cosying up to Melanie Phillips of the Daily Mail. Funny and confusing days we live in… I mean, how is one supposed to know who to shout at?

After the inevitable re-affirmation of the week’s most popular truism that rape is, indeed, rape, the questions and the answers started getting infuriating moronic interesting. In particular, Ms Phillips’ cry for criminals, and rapists in particular, to serve their ‘whole sentence’ signalled a turn for the worse. Continue reading

A Striking Balance

An interesting interview in the Guardian yesterday with Keir Starmer, head of the Crown Prosecution Service and therefore in charge of who gets tried for what crime in England and Wales. He talks in particular about the guidance that the CPS has issued as part of a consultation on whether a woman who retracts a claim of rape should be charged with perverting the course of justice when there is a history of abuse with the accused.

A broad enough measure of compassion?

image courtesy of Joe Gratz, via flickr.com

This consultation (which is open until May 6) was prompted by a case a few months ago where a young mother was jailed for a few months after she was found guilty of perverting the course of justice. She had accused her husband of rape, only to withdraw her claim later. This ‘false retraction’ had led to her being sentenced to prison, despite the fact that the court accepted she had suffered abuse at the hand of her husband and had withdrawn her claim because of pressure from him.

Although the court of appeal ‘freed’ her, it did not quash her conviction. This means that she is still guilty of a criminal offence of ‘perverting the course of justice’, but that her sentence was reduced to a community sentence with a two year supervision order instead. As the aptly named Lord Judge put it, the court should have showed a “broad measure of compassion” for a woman who had already been “victimised”…

While the result is undoubtedly just, one can’t help but wonder whether it is just enough, as she is still held to be a criminal for giving in to the pressure of her abusive husband.

Only false accusations to be prosecuted

Mr Starmer’s reaction to the case was to announce that all similar cases of rape retractions in situations of domestic violence would be reviewed by him personally. But he thankfully didn’t stop there and the CPS has now produced a consultation about its interim guidance on such cases…

The most striking characteristic of this guidance is that women who falsely withdraw claims of rape will now only be prosecuted if the initial claim was false or malicious and not if the allegation was true but withdrawn for personal reasons. This position is reinforced by the instruction that to prosecute someone for falsely retracting rape claims will therefore only be acceptable if it can be proved, to the criminal standard of proof (ie beyond reasonable doubt), that it was falsely made in the first place.

This means in practice that women who have claimed that their partner has raped them but later withdrawn a claim, whether because of the abusive nature of the relationship or for other personal reasons, will not be prosecuted and held criminally responsible. If there is enough evidence to show the accusation of rape was false in the first place, then the CPS will consider whether it is in the public interest to bring that person to justice. This will not always be the case: in a recent case where a 14 year-old girl wrongly accused a 14 year-old boy of having raped her, it was found that a trial would not be in the public interest and all charges were stopped.

Balancing Act…

image courtesy of Bryan Gosline via flickr.com

This test strikes a much better balance regarding the responsibility of women who withdraw rape claims. By allowing the conviction to stand, the Court of Appeal’s decision means that a woman was made a criminal for giving in to the pressures of an abusive partner. This would make women in her situation partly responsible for the abuse she receives, a position which is untenable and unfair. By stating clearly that such women are not committing any criminal wrong but rather are still to be protected by the criminal justice system, the CPS shows that its commitment to fighting domestic violence isn’t all talk and no show…

Crime, Sense and Sensibility…

Yesterday evening, I followed a link to an article tweeted by David Allen Green which just said ‘read this’. And so I did, even though it meant squinting and hurting my eyes trying to read it on my tiny blackberry screen. And so should you, although you should also beware that it might both move you to tears and frustrate you, and not just because of the squinting…

Move you to tears because it exposes the trauma of being raped, the incomprehension and moral questioning that goes with it, as well as the pain. Frustrating too because it opposes raw emotions to a seemingly obvious solution, that the crime should be reported, and hopefully prosecuted.

It seems so simple: of course one should report such acts, it can only lead to something better. Better for the victim who might get justice and hopefully closure, better for society at large as it sends a message that such actions are not tolerated and potentially protects other victims and maybe also better for the perpetrator who might become aware of the pain he’s caused and, hopefully, reform.

But is it so simple? We might find it hard to understand but it’s even harder to ignore the vehemence or violence with which this man refuses all police involvement in his ‘case’. What they see as help he sees as intrusion, and he just wants to “not think about it any more”.

It would be easy to dismiss this reaction as part of the psychological trauma of being raped and insist that justice must follow its course. But, as an academic interested in criminal justice and sexual violence in particular, I see at least two very important points to bear in mind:

  • No matter how you choose to analyse and classify crimes, acts of sexual violence and, a fortiori, rape, are in a class of their own. Whether you believe that they are about sexual desire or pure violence on the part of the perpetrator (another article well worth reading), the effect on the victim is the same: a violation of the most intimate aspect of your physical integrity. Sexual violence might not always be about sex for the person committing it but it always is for the victim, and brings with it particular trauma and psychological consequences. This will inevitably make it a challenge for the criminal justice system to deal with such crimes…
  • From a rational perspective, the only solution is, well, to find a solution to these crimes. And the solution is generally understood to be a criminal investigation, prosecution, trial and punishment if the accused is found guilty. Yet, and this may be hard to hear for people who believe in the criminal justice system, is it always the best way? Are we putting people through the further trauma of a trial in order to satisfy what we believe is best for them, sometimes against their instincts?

Discussions about crime and the criminal justice system are often drawn in black and white, as if it was all so clear and straightforward. Principles, rules, sanctions, but what about emotions? What place, if any, for feelings and emotions in the criminal justice system? Or should justice be necessarily calm and rational in the face of conflicting emotions?

I don’t have the answers and I guess I don’t expect to find some any time soon. One thing I do know though: while I keep looking for answers, I’ll make sure I keep this story that moved me to tears at the back, or even front, of my rational mind…

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