Thursday, October 19, 2006

Asking for it?

Rachel has a heartfelt and interesting post on the desperately difficult issue of rape and culpability. I would slightly cavil at her treatment of that Amnesty survey that found that a third of people believed that a woman was at least partially responsible but that's a point of detail not substance.

However, the question of consent in rape trials is not a simple one. Rape carries a life sentence, and the overwhelming majority of cases are ones which turn solely on this matter - not whether penetration took place but whether it was consented to. Since most of these cases are 'date rape' rather than 'stranger rape' the question is too often ultimately a matter of one person's word against another's as to whether consent was granted. The maxim that 'drunken consent is still consent' is, in essence, little more than a maxim that makes it impossible for consent to be withheld retrospectively.

Rape is a deeply traumatic event, devestating to its victims, yet the purpose of a trial is to establish whether or not the accused is guilty of the offence. This means that if consent was given, albeit in a slurred voice, it is simply not reasonable to send a man to prison because, on reflection, the victim decides she would never have done such a thing sober.

Rachel is entirely right that a drunken rape victim is much less likely ever to get her story pursued to conviction. She is equally correct that current court room procedures can seem unfairly two-edged (traumatised and emotional? Obviously hysterical; calm and collected? Pah! No trauma there then). The mooted reforms should help rectify some of this, yet the truth is that the majesty of the law is ill-suited to deal with one person's word against another - particularly so if it is made impossible for the character of one of the witnesses to be questioned - how else is it to be determined which side is more likely to be telling the truth?

Ultimately all criminal cases are decided by determining whether or not there is any reasonable doubt as to whether the defendant is guilty or not. In rape cases this is almost always impossible as there is no corroborative evidence. It is important to remember that it isn't the victim whose story is on trial - it is the defendant's. Just because the jury can't rule out the possibility that the defendant is telling the truth doesn't mean that they believe the victim is lying. Do go and read Rachel's blog by the way, it's excellent stuff...

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