Prosecution of rape
Grouville St. Mary 16 Jun 21 19:37
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I listened to Max Hill, the DPP, giving evidence at the Justice Select Committee yesterday.

Can someone please explain to me why there is a 'get out' for rape of reasonable belief there was consent?

Surely there is either consent or not, and that is what the jury should be deciding, not having this extra issue of 'oh well actually s/he didn't consent but the defence have thrown enough confusion so that maybe s/he reasonably believed there was'

It doesn't really seem that surprising with this sort of thing that successful prosecution rates are so low.

Bump, has already slipped massively down the thread list. 

Because rape requires a mens rea.  There can be no intent to commit rape if there is a genuine belief that the victim is consenting.  Same with many crimes.

Yes exactly. But do they all have that specially set out in the statute, I thought it was just a general requirement. Does it spell out ‘it’s not fraud unless you thought it was’ for example 

Yes exactly. But do they all have that specially set out in the statute, I thought it was just a general requirement. Does it spell out ‘it’s not fraud unless you thought it was’ for example 

To take fraud as an analogy, the statute specifically requires dishonesty as an element of fraud, which is basically the mens rea. 
 

I don’t know the evolution of rape as a crime but usually in these things the statute codifies the common law. 

fook off chill. If that’s an attempt at humor it’s strongly misdirected. Rape charging, prosecution and successful court outcomes are a disgrace in this country. One reason appears to be a get out that doesn’t seem to be there in other crimes. Get rid of it and make it easier to successfully prosecute. Rape isn’t funny. You should be ashamed at implying I don’t understand consent when I’ve posted something asking about exactly the opposite. 

Thanks scep tick. I think it might be better to get rid of it though. 

Give over off risky. You spend half your day race baiting people on here while bragging about your bullshit threesome and your nieces (whatever that is). You have been clear that no topic is off limits in riskyland so you have zero credibility in calling anyone else out on any topic. HTH.

Problem is you would still need to prosecute for the mens rea. 
 

R v G (2005) is an example. G (15 years old) had sex with a 12 year old. Honestly believed she was 15 as well. Strict liability for sex with an under 13 year old. Sentence was conditional discharge (on appeal) because of his honest belief. So even if there were strict liability for rape, the whole honest belief thing would have to be gone into. And if that reduces “accidental” rape to a series of slaps on the wrist, is that doing any good?

 

The alternative is long sentences for people who had zero intent to commit any crime. Is that better?

Can someone explain the difference between a belief and an honest belief?

My belief is that the word belief is a mere intensifier, and logically null. But is that my honest belief?  Hmmm.

i’m agreeing with you risky

(and yes making a little joke about your threesome)

90% of rape allegations are one person's word against the other's, usually after both have had a shed load of booze.

And, contrary to the official approved narrative, false allegations are not uncommon.  Usually when someone has done something they regret and are trying to save their relationship / marriage / reputation.  

Rape requires mens rea. It is open to juries to conclude that the defendant did not have reasonable belief in consent. It is they (and society generally) that need to be worked on to understand that rape is quite common, and in a situation which seems a “bit icky” (eg the woman was significantly more drunk than the man) there very probably was (beyond reasonable doubt) a lack of belief in consent. Why is that so hard to get across the line? It really shouldn’t be. When defendants say that their perception of consent was coloured by, for example, their own intoxication, such that they had reasonable belief in consent, that should be drawing huge red flags immediately. If you’re that drunk that your judgment of others’ mental states is totally messed up, you’re probably also too drunk to be able to have sex. By modus tollens, if you were able to have sex then you were very likely able to perceive that there was not consent. There should be very little grey area between the two and very limited defences to rape. But the law as it is written is meaningful and it fully captured the mischief that we want to criminalise. 

Wilful blindness would be a dishonest belief. How could you honestly believe there is consent if you’d deliberately put in earplugs so you couldn’t hear a refusal?

See DPP v Morgan for the history here. Sexual Offences Act 2003 changed the law to require a reasonably held belief of consent, rather than merely an honestly held one.

DPP v Morgan - Wikipedia

Groovers has got to fifty without understanding what mens rea is non shocka 

Ignoring the cretins on here, the ‘drunk’ point is an example. If the test was actual consent, not belief, then presumably the ‘oh we were both drunk’ excuse would cease to be a potential defence, it shouldn’t be one now, but people will get away with it under reasonable belief. 
 

in the scep til age case I’m afraid I don’t have any sympathy,  the defendant should have been convicted. 

Barry, depends whether you want to change the basic tenet of “innocent until proven guilty” or not. Would you rather let 10 people escape conviction to ensure that one person who is innocent is not falsely convicted?

The drunk one is a strange one as it only ever seems to work in one direction. If a woman is too drunk to remember then she cannot have consented. Surely the perfect defence for that is for the man to claim he was also too drunk to remember and (being mentally incapacitated) was therefore sexually assaulted by the woman? Obviously it is far more likely to be the man initiating it and he is more likely to be guilty but if he claims the above could you ever prove beyond reasonable doubt who was the one who jumped on the other?
I hate rapists and wish we had more convictions but I also hate injustice and want to ensure we don’t manipulate the law to gain more convictions which are unsafe.

Jim, where do you draw the line? You might say, 10 get away with it to prevent 1 innocent person being convicted, what if it was 1,000,000 to 1?

also royalty I have done no such thing. 

That’s for society to decide. In the future I can see more civil action being taken where it is balance of probabilities only. I’m still personally in favour of the level of proof required but I know there is more resistance to this and it is conceivable that in 30years or so certain offences might have a lower burden of proof than others. I’d have to leave the job if this happened I think.

I’ve personally dealt with a couple of cases where, after a one night stand where the boyfriend found out, the lady has told him it was non consensual and he has insisted she report it as rape. She has told us this privately and we were able to cancel those crimes but there may be other cases of “post coital regret” which would result in law abiding young men being convicted of a heinous crime.

I can’t see what the solution is as my heart breaks for victims of rape (I always imagine it happening to me and it makes me sick) but, by the same token, I would be outraged if innocent young people were criminalised and had their lives ruined when they genuinely had consent at the time but it has been “withdrawn” after the deed.

It’s a quandary. 

Jim, I don’t see how my proposal would change the outcome in your example immediately above. 

How do you prove actual consent? Even if you get signed, witnessed, legally bullet-proof forms before the act stating, “I consent”, one party can still unilaterally withdraw this mid act (as it should be) so belief in consent is paramount.

Returning to the (frankly daft) OP the answer is because consent depends on a state of mind and it is literally impossible to know for sure someone else's state of mind. 

Let's say X has hugely damaging information about Y.  X uses this information to blackmail Y into having sex with Z. X makes it clear that if Z realises that Y is not actively and enthusiastically consenting then he will release the information.  Y has sex with Z giving Z no reason to believe Y does not consent i.e. Z asks Y explicitly if she consents. She says yes and throughout gives no indication she does not in fact consent although in reality she absolutely does not consent and is deeply traumatised by the experience.  Without the reasonable belief defence Z would be guilty of rape. That can't be right. 

X is of course guilty of a very serious blackmail and should go to jail for a long time. 

Canaryjim - in the cases you refer to above why on earth weren't the women who made the false allegations prosecuted for perverting the course of justice? I am assuming they weren't?

Jim and Donny, that’s for the jury to decide. I don’t really see the problem being that the question for the jury is:

was there consent?

rather than

was there consent or a reasonable belief in consent?

 

With the current test it’s no wonder so few rapists get convicted 

Sorry, but have you had a stroke or something?  In my above example there clearly was no actual consent. You can tell because I said Y did not consent. No jury, made aware of the full facts could possibly (correctly) find that there was consent because there wasn't.  It cannot however be just that Z is guilty of rape in circumstances where he had no reasonable way of knowing that Y did not consent. 

A crime was committed for sure, but not by Z. 

 

 

Donny I’ve read your bizarre example.  Is this something that happened to you? I do think Z is guilty of rape in the circumstances you set out. As you say, x is also guilty. 
 

Rather than deal with your weird mind farts tho, shall we try to improve the situation for the tens of thousands of raped individuals who aren’t in some weird blackmail case…. 

Ok, Grou, why not keep it simple. 

X (woman) consents to have sex with Y (male). Part way through the act she withdraws her consent but does not communicate this to X. As a matter of fact, in that situation there was no longer any consent on her part, but should Y, who reasonably believed that he still had consent, be convicted of rape in those circs?  You apparently think he should, do you not (by virtue of your earlier assertions)?

That is a very niche edge case there Donny. Surely Z would only be prosecuted if Y reported the incident and then lied to say consent was not given to Z? In which case the scenario falls apart. If Y faithfully recounts the events as they happened then Z would not even be prosecuted. That said you would expect plod to investigate if X and Z were in cahoots.

Is this Risky attempting some kind of devils advocate reverse psychology thing to own the libe by getting them to argue *against* harsher legislation on rape?

 

Realist, I think that’s for a jury to decide based on all the circumstances etc

Unless you don’t think people should be able to withdraw consent without having to positively say so?  

‘She didn’t fight back’ etc being one of the evil excuses rapists use to argue for a belief in consent

On what planet is it just that Z has his life utterly destroyed by a rape conviction because he had sex with a woman who told him she consented and gave him every reason to believe she did in fact consent.  The idea it should be strict liability is pretty insane. 

You don't deal with low conviction rates for rape by introducing obvious injustice into the system. You deal with it by properly resourcing the police and CPS so that they can fully investigate and properly prosecute rape allegations. 

You can have a debate about whether rape convictions should be subject to a lower burden of proof. I profoundly disagree with the suggestion they should but it is at least logical and not inherently unjust. 

Ultimately juries will always be slow to convict for rape in 'he said, she said' types of scenarios absent evidence of physical injury to the victim whatever the law says and particularly where it involves young men.  As unpopular with some as it may be the reality is that if we want more convictions for date rape we need a new offence, something like unlawful sexual conduct that juries may be more willing convict for in these types of situations. 

“As unpopular with some as it may be the reality is that if we want more convictions for date rape we need a new offence, something like unlawful sexual conduct that juries may be more willing convict for in these types of situations.“

Germaine Greer has advocated this 

But Grou, you said earlier in this thread that it is effectively a question of fact as to whether she had consented or not that should determine whether rape had taken place.

I agree that it should be for the jury to decide that as a question of fact, but by your own analysis, it is irrelevant what the man thought and whether any reasonable assumption was made on his part.

Instead it would just be a case of determining whether or not consent had actually been withdrawn and accordingly the communication (or not) of any withdrawal of consent is not a vital component of such determination. 

Rof Royalty17 Jun 21 07:59

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That is a very niche edge case there Donny. Surely Z would only be prosecuted if Y reported the incident and then lied to say consent was not given to Z? In which case the scenario falls apart. If Y faithfully recounts the events as they happened then Z would not even be prosecuted. That said you would expect plod to investigate if X and Z were in cahoots.

For fvcks sake. Can you not read?  Y DID NOT CONSENT IN MY EXAMPLE. She would not therefore be lying when she said consent was not given. Which is the whole bleedin point!  Consent is a state of mind not series of actions which may EVIDENCE consent. That is why we have the reasonable belief element. 

It is a niche example but it is essentially a 'tidied up' version of a sadly extremely common (but more nuanced) example that I was trying to stay away from for the sake of clarity.  If we say X is Y's pimp and has threatened Y with violence if she doesn't work as a prostitute is Z guilty of rape if he has sex with Y (having paid her) while being unaware of the coercion that Y is subject to (i.e. if she advertised herself online as an 'independent escort' and Z never had any contact with X and was complete unaware of his existence).

No, realist, clearly it wouldn’t work that way in front of a jury. If the victim simply said they didn’t consent and the accused said they did then the jury would decide who was telling the truth. They would weigh up what was more or less likely as part of that  

At the moment the accused has an extra ‘formal’ get out because of the separate reasonable belief test. It means cases don’t go from the police to the cps or from the cps to the courts. 
 

linda, is there any detail on how that offence would work

Grou / Royal: brainfart

 

Donny: 'i feel like I'm taking crazy pills!'

 

 

Grou, I agree that the jury would weigh up the evidence in those circumstances and make a decision as to the fact of consent (or its absence).

But my point is that if the changes were made as you propose and on the analysis which you provided at the outset, it is not relevant as to what the man reasonably believes.  

Instead, all that matters is whether, as a matter of fact, the woman had or had not withdrawn consent in the example I gave.

You didn't say that it would be a necessary element of the withdrawal of consent that she had communicated this to the man. 

Confusing thread. It's about culpability in the end isn't it, hence the need for mens rea. Anything else is unrealistic in the context of how sexual relations actually work.

Classic Grou thread, it's like arguing with the wrong end of a daggy Merino 

Keep digging Grou, we can still see the top of your head

Given your history of, and attitude towards, violence warren, I’m not surprised by your views about rapists

Risky should read R. v Brown. You can't consent to ABH. If someone is stood there with a massive wound in their body due to your use of force and there is evidence of that there's a high chance of conviction. Contrast with someone where there is evidence they have been penetrated but that is entirely excusable based on consent. There will almost never/never be any objective evidence of consent and affirmation before and after intercourse, and your pals in govt have starved the CPS of cash, so in rationing resources you can see why this happens. 

 

Grou you're just suggesting we move from the defendant's reasonable belief to the jury's reasonable belief as to whether or not there was consent.  Rather than the defendant satisfying the jury he reasonably believed there was consent you're just getting the jury to satisfy themselves that they reasonably believed there was consent.

Given your history of, and attitude towards, violence warren, I’m not surprised by your views about rapists

Lol, that's telling 'em Grou!  

Truth is son, sexual assault is a serious problem for society that deserves intelligent and constructive consideration and debate, which is why you should steer well clear of it.

didn’t the ever charming george galloway have something to say about not needing to get express consent for every penetrative stroke?

canary - are there credible people asserting that there should be a “lower burden of proof”? what would that look like? balance of probabilities in a he said she said scenario? a judicial “believe her” would be a remarkable change. 

 I think strictly speaking where a defendant seeks to rely on a reasonable belief of consent the burden of proof is already on them to establish it on a balance of probabilities basis anyway.  This is really not my area though! 

Lowering the standard of proof to balance of probabilities generally in relation to allegations of rape would be a very weird move. 

People advocating possibly changing criminal standard of proof to balance of probabilities. 

I guess the same people are entirely happy that the SDT now works on, and can effectively end your career, on balance of probabilities.

Changing the standard of proof would be a dreadful move. 

choose your preferred miscarriage of justice:

”you may no longer practice as a solicitor”

OR

”you are a rapist”

What if you are a solicitor and a rapist?  On the basis of some of the inflated bills I have seen it looks surprisingly common.

On a more serious note, losing the ability to practice will pretty much be the end of livelihood for many people, especially in this modern day and age where all SDT judgments are online ad infinitum.  

sure - but I have a feeling that most would choose being struck off v. ?10 years in prison having been convicted as a rapist….

4-6 for rape on a first offence, unless you have done something really sadistic like false imprisoned them for days on end.

Most will be out in half of that. 

A solicitor who did a 2.4 million fraud over several years got less.

Just to be clear, I am NOT aware of anyone actually saying the burden of proof for rape cases (or any other offences) will change to balance of probabilities. However I wouldn’t be surprised if it were advocated within 10 years and adopted within 30 if convictions for rape don’t improve. I am NOT in favour of this but simply hearing more and more people (like the OP) trying to find ways to increase convictions for an offence that is extremely hard to prove beyond reasonable doubt.
Again, FAOD I am all for locking up more racists but not if it has the potential to increase miscarriages of justice.

It won't happen.  The idea of different burdens of proof for different offences, save as to strict liability for some road traffic offences, is ridiculous.