Monday, October 16, 2006

Drink. Feck. Drink. Rape.

The Sunday Times lead headline today was surprising. 'Blair to toughen rape laws. Drunk Women Protected.' This is quite encouraging; after last year's disturbing Amnesty survey results, where 1 in 3 respondents thought raped women must have been asking for it, seeing victims as ''partially '' or ''completely responsible'' for their own rapes if they behaved flirtatiously. Meanwhile 1 in 4 of the 1000 interviewed thought that rape victims were ''at least partly to blame'' if they were drunk or wearing sexy clothing.

This week, a new 'Know Your Limits' campaign highlights the risks from binge drinking - from accidents and falls and beatings to rapes. This isn't victim-blaming - it is quite true that being very drunk makes you very vulnerable, and that predators target the vulnerable, whether that is to rib them or rob them or rape them.

What the papers and the Government calls 'binge-drinking' and what the drinks industry calls ''hi-energy vertical session drinking'' ( meaning ''drink products targeted at an audience standing up, consuming drinks at some speed , buying rounds, in social groups, with music pumping in the background'',) is the most common marketing strategy adopted to shift products and make profits. Despite alcohol-manufacturers' straight-faced initiatives such as '' Drink Aware'' and
''Responsible Drinking '' messages on alcohol products, you only have to walk into a busy bar on a Friday night to see the offers, the flyers, the promotions and the general strategy of getting the punters shit-faced and buying as many drinks as possible, being very successfully executed as the tills ring. We haven't yet had a campaign which baldly states

'RAPISTS TARGET DRUNK WOMEN.
GETTING VERY DRUNK MEANS YOU ARE MORE LIKELY TO

possibly because the big brewers would fight it as being bad for sales? Or because people don't want to hear about it? But it would be an honest campaign, if it ever ran. Like the ''Don't Advertise Your Phone to Thieves'' campaign.

There have been some attempts to curb the 'binge-drinking' culture, and to call alcohol manufacturers and pub chains to heel with some of their more ''irresponsible'' ruses such as buckets of bottles of beer for a tenner, buy one get one free/''buy 2 glasses and get the bottle of wine for free'' offers, and the promotion of products that are clearly designed to get you as smashed as possible as quickly as possible. These promotions are now being more strongly regulated. The drinks industry also self-regulates via the Portman group and there are strict controls on the marketing and advertising of alcholic drinks: when I worked (in advertising) on lager briefs, we had to jump through all sorts of hoops. Not link the product with social or sexual success, not show models who were under 25 years of age and so on. Nonetheless, we Brits love a good old drink-up. And women now have the spending power of men, and probably twice the pulling power, and unfortunately, not at all the same drink-holding power, and every weekend, hundreds of thousands of women lash out on getting lashed up, just as men do. And some of them get raped.

And that's when the equality stops. Because if you get raped when you are drunk, or high, even now, in the twenty-first century, you are going to have one hell of a battle on your hands if you want to get justice. And you'll need a lot of luck as well. Where you live will make a difference: some police forces have excellent facilities such as The Haven rape/sex assault suite to deal with victims; they have specially-trained units such as the Met's excellent Operation Sapphire units. The investigating officers will be patient and kind and avoid saying things like ''Changed your mind, did you?' and '' What sort of knickers were you wearing? Were you wearing any?''. But once you get to court, if you ever get to court, you can expect to hear those sorts of questions, and worse. Your sexual history is supposed to be left out of the cross-examination, but still many defence counsel will apply to bring it up citing it as ''relevant'', especially in ''date-rape'' cases. ( And most rapes aren't stranger-rapes).

Then there's the latest defence lawyer tactic - if your sexual history isn't brought up, your medical history can be wheeled out in court instead - including any instances of, say, being prescribed tranquilisers for air travel, or exam nerves, or having a history of depression or anorexia - and can be used to discredit you as ''unstable'' and ''hysterical''. (See the Dispatches prograamme on rape which caused an outcry in 1993, and its follow up 'Still Getting Away with Rape in 2000) . Manage to keep it together in court? Numb with rape trauma syndrome and wierdly calm? Then you run the risk of the judge and jury assuming you have suffered no great trauma.

Not looking good is it? You should be worried, if you are a potential victim of rape - whether male or female. Fewer than 6% of rape allegations result in successful convictions.

Police recorded 14,449 allegations of rape last year, one of the highest figures so far. Between 1991 and 2004 the number of rapes recorded rose by 247%. However, only 12% of cases actually reached court, and only one in 19 men was convicted.
In many cases, police filter out cases involving alcohol and drugs at an early stage, ''advising women who admit that they were drunk at the time of the alleged incident to drop the complaint because they stand little chance of being believed in court'' ( Sunday Times)

The 1 in 19 statistic, remember, is based on cases that actually make it to court. So Mr. Blair, personally, the ladies' friend - if the spin is to be believed - is pushing for further changes. Ministers are considering letting juries see the initial interview a victim has given to the police describing the attack, often soon after it has happened, and allowing women to be helped through the ordeal of a trial by having a 'victims' advocate' to support her, (as recommended by the excellent Dame Helena Kennedy in her book Eve Was Framed ages ago).

This isn't about reversing the burden of proof, but curently, women are judged as being able to consent to sex if they have been drinking, as long as they have not actually lost consciousness through excessive consumption. The Swansea Crown court case last year where a student complainant of rape, (who couldn't remember giving consent or not) was told '' Drunken consent is still consent'' caused widespread disquiet, and the rape conviction figures are shameful: 6% of cases resulting in convictions shows that the system is failing victims. Even more so, if the victim had been drinking or using drugs before her rape.

Vulnerability is not culpability. Yet too often victims are viewed as culpable in their own rapes. The thing is, you can try and help victims every step of the way from giving their statements and being filmed doing so, you can have victim advocates in court ,and screens, and 'special measures' to protect witnesses. But whilst we have an adversarial rather than inquisitorial system that is based on winning against the other side's arguments, rather than getting to the truth, and relies on painting an emotive and extreme picture of the victim's lifestyle/behaviour; and whilst this panders to the prejudices of people who think drunk women should be ashamed of themselves and are asking for it, we are going to struggle to get justice in rape cases where it is one person's word against another. Rape cases depend on the ''credibility'' of the witness, and the credibility of the witness is dictated by ancient prejudices about what women should and shouldn't do, say, wear, think, feel, act. And even though most women are raped by people who know them, rather than strangers, there is still this perception that malicious and false complaints are common, and that women change their mind or regret drunken sex and stitch men up for it.

I hope these latest mooted changes make a difference, along with the extra training of barristers, judges, police, and the extra information given to juries. But when you next walk into a big chain pub on a Saturday night, and see the drink and leisure industry's latest successful execution of a ''high-energy vertical session drinking'' strategy in action, the flyers, the promos, the wall-to-wall advertising, you might wonder if this latest ad campaign stands much of a chance. You aren't just talking about awareness, after all, you are talking about actually changing people's social behaviour. Education is as important, not just educating women about the risks of being off your head, but educating men that tacit consent is not to be assumed just because she is wild-eyed, giggling, dancing on a table, flirting, wearing a revealing top and halfway through her second bottle of Pinot Grigio. Actual given consent - in fact, full-blown enthusiastic partipation is what a real man should be after, not assumed access based on opportunism and assumption, prejudices and peer pressure. I'm not sure that this campaign stands much of a chance of what advertisers call ''cut-through'' or ''mind-share'' when the perma-message is 'Get out. Get Get of It' 365 days a year, and twice as loudly on Fridays and weekends. Still, I wish it every success.

24 Comments:

Anonymous NotSaussure said...

May I give a bit of background to 'drunken consent is still consent', which, as you say, has caused some disquiet?

The problem is that it's a fundamental principle of English law that drunken intent is still intent; you cannot use as a defence the fact you wouldn't have hit the chap (or you wouldn't have hit him as hard as you did, or wouldn't have used a bottle) had you been sober and that you regretted hitting him as soon as you sobered up.

Consequently, it's very difficult to argue that someone can drunkenly intend to injure someone but she can't drunkenly intend to consent to have sex with him.

The problem in the case of Ruairi Dougal, which was a very unusual one, is that the complainant told the court when she woke up she couldn't remember, because she'd drunk so much beforehand, whether she'd consented or not. Mr Dougal said she had consented, so, in effect, his defence could not be gainsaid; because the jury couldn't be sure that she didn't consent and that, if she did, she wasn't so drunk as to be incapable of consenting (automatism), they had to acquit.

Had she said, 'I was very drunk but I do remember telling him I didn't consent' (and the jury accepted this, of course), it would have been rape. Had he said, 'She was passed out at the time,' it would have been rape. Had he said, 'She was really out of it but she didn't say "no"', it would probably have been rape, depending on whether the jury thought he was at all bothered at the time in whether she consented or not.

I'm not at all sure the phrase 'Vulnerability is not culpability' is particularly useful; the only person in whose culpability the court is interested is the defendant. It's important, I think, to remember that an acquittal in a rape case doesn't necessarily mean 'the jury didn't believe her' or 'the jury thought she was to blame.'

The question the jury is asked, when the issue is consent, is not 'do you think she's telling the truth' but 'are you sure he isn't?' If a juror thinks, 'Well, I'm pretty certain she's telling the truch and she didn't consent, but I can't be sure she didn't', the vote's got to be 'not guilty'.

It should also, I think, be remembered that, just as almost every male juror is going to be able to imagine not only himself in the defendant's position but also his wife/sister/girlfriend/daughter in the complainant's position, every woman on the jury will be able to imagine both herself as the complainant but also one of her family or friends in the dock. It can't be an easy decision a lot of the time.

I'm very aware of the problem because I work in the criminal justice system. But, to my mind, the emphasis has to be on changing public awareness and public (and thus jurors') attitudes towards complainants rather than altering the burden and standard of proof in serious criminal matters.

The way rape cases get reported, particularly in papers like the Daily Mail, has a lot to answer for. Very frequently (and understandably, because it makes for an interesting discussion over the breakfast table) they report cases in terms of 'is this rape?' when the question the jury's being asked isn't that at all; it's 'what do you think happened and are you sure you don't accept his account of events?'.

October 16, 2006 2:35 pm  
Anonymous Anonymous said...

What is also very wrong is that men who are accused of rape (Often wrongly) are named and shamed prior to the case. If they are then innocent, their name is still out there, whilst the girl involved does not have to be named, even when she has made very damaging a false accusations.

October 16, 2006 7:04 pm  
Blogger Rachel said...

How many false allegations of rape are there?
There is a commonly held belief that the figure for false allegations is high. In fact there is no evidence to suggest that it is any higher than false reporting of any other crime – around 2%. In fact research conducted by the NYPD and other research conducted in Sweden (Persson, 1981) and recently in New Zealand (Jordan) also found a false accusation rate of 2%. Importantly none of those cases reached court. In fact for some crimes (for example house theft and car theft), false reporting is much higher because of insurance claims.

http://www.rapecrisis.org.uk/faq.html#_Toc120693216

False allegations - The continual focus on false allegations in the media also plays a key role focusing on the extent of truth that lies behind the victims' story, and certainly contributes in the falling conviction rates. In reality there are only very few cases but due to the huge amount of media attention, police, lawyers and judges all have this false perception of rape victims in their minds, which causes a significant problem when victims are on trial.

http://www.gm.tv/index.cfm?articleid=22341

October 16, 2006 7:36 pm  
Blogger Marcella Chester said...

On the case where the judge said that drunken consent was still consent, those who say that overlook that her accused rapist had been given the duty to see her safely home because a school official decided she was too drunk to go home unassisted.

Drunken action (rape) is not the same as drunken inaction (failure to communicate non-consent).

October 16, 2006 8:52 pm  
Blogger Snafu said...

Notsaussure, excellent comment!

I'm very uneasy with the idea that a 6% conviction rate is too low. What should it be? 10%? 20%? 50%? 100%?

Why should women be able to use the defence "I was drunk" when arguing about whether consent was given or not? Should men be able to say "I was drunk" when they are the accused in domestic violence cases!?! Unless the accused is unconscious, they must be responsible for their own actions! No woman should be allowed to absolve herself or responsibility when drunk!

October 16, 2006 10:02 pm  
Anonymous NotSaussure said...

Marcella Chester, you misunderstand, I fear, the reason the case had to be dismissed. It was nothing to do with 'drunken inaction', as you put it. The complainant said in cross examination that she couldn't remember whether she'd consented or not. The defendant said she had. In other words, there was no evidence to contradict his defence -- that she consented. We might speculate as to what really happened, but you can't convict on speculation.

As to 'false allegations,' I completely agree with Rachel. It's utterly mistaken and very unfair on the complainant to say that an acquittal necessarily, or even usually, implies a false accusation. All it means is that the jury wasn't sufficiently sure the guy was lying to convict him; you've got to remember that if a juror thinks, in a rape case or any other, 'I think he's probably lying but I'm not sure he is' that means a not guilty vote in English law. As I mentioned, I work in the criminal justice system and I can honestly say that while I've seen plenty of rape trials where I've thought the jury were right to acquit because you really couldn't be sufficiently sure the guy was lying, there've only ever been two or three where I've thought the complainant was probably lying.

One of the main reasons there's such a low conviction rate in rape trials is that, almost uniquely in criminal cases, it so frequently comes down to one person's word against the other's, with no other evidence to assist the jury.

Short of changing the burden of proof, which I'd be very unwilling to do, I don't see how you fix it unless you become a lot less willing to prosecute without corroborative evidence. But that's obviously not a particularly desirable approach, either. I'm not at all sure there is a solution.

October 17, 2006 2:15 am  
Blogger Tom Tyler said...

Hello, Rachel. Look, I know we've sort of "crossed swords" in the past on other blogs, but I just wanted to say that I think your writing has been fantastic recently, especially since you decided to concentrate on it full-time.
I've always continued to read your blog, and now you're posting some real A1 quality stuff. (Not that it was ever crap beforehand, or anything, just that I've noticed a big leap forward recently. You're obviously studying and developing your writing technique, and it shows).
I'm still broadly on the other side of the whole left-wing/right-wing fence from you, but I suppose if there's one thing we can agree on, it's that those conspiracy-theory nutters are a nasty, genuinely sinister bunch, and that you're absolutely right to stay well away from all that.
All the best with your future career, and I look forward to your contributions to 18 Doughty St (and I don't just mean the pole-dancing moves).

October 17, 2006 2:44 am  
Anonymous Linda said...

Excellent, thought-provoking piece (no change there then) and ditto for notsaussure's comment.

But I wouldn't agree that:

the only person in whose culpability the court is interested is the defendant.

Surely part of the problem is that in rape cases it is widely perceived that the court is equally interested in the alleged victim's "culpability" - had they been drinking? Were they wearing a top that showed their belly or a short skirt? Had they already had a number of sexual partners? If the answer to any of these is 'yes' then they are somehow deemed to have been 'asking for it.'

October 17, 2006 8:51 am  
Blogger silver_flight said...

There is a very big difference between taking a deliberate action to harm another (such as in domestic violence or assault) and being persuaded to allow something to happen to you. One could get into arguments about the small details, such as the level of drunkenness or resistance involved, but the bottom line is that targeting a drunk person for sex is unscrupulous at best. I agree with Rachel that there has been far too much coverage of false allegations, and far too little of the very real problems women still face.

October 17, 2006 11:26 am  
Blogger MorrisOx said...

Wth great respect to some of the people who've contributed, I couldn't give a stuff for the legal or proecedural minutiae.

I'm struggling, too, to give a stuff for the Portman Group.

Rachel, you may have had to jump through hoops in advertising, but the rules are neither here nor there when you've the city/town centre is carpet-bombed with bars, everyone of them festooned with cheap booze offers and 'let's get pissed, isn't it a larf' imagery.

The drinks/pub/bar industry has stood by and watched the profits roll in like a tidal wave.

The A&E departments and the custody suites have picked up the pieces. Taxpayers have picked up the bill.

Insane court cases are a symptom, not a cause.

October 17, 2006 7:22 pm  
Blogger Glamourpuss said...

Rachel,
You raise a number of issues that I have been considering myself as I take my first tentative steps towards becoming a professional pole dancer/stripper. For all the talk of a greater acceptance of female sexuality in our culture, the madonna-whore model is clearly very much alive and well. When on stage I express an aspect of myself, my sexuality, that defines me in that scenario. When I come off stage, many of the men I encounter respond to that part of me alone and do not appear to understand that there are other dimensions to who I am. Intellectually, I know that this is their problem, but it does make me vulnerable. Whether it makes me culpable for their unwarranted attention is a moot point. I would always argue that our responses to other people are our own responsibility, but I have no doubt that my profession would be used as justification for treating me in a particular way, and that it would hold water in many arenas.

Education is always the key to changing perceptions, but the process is slow and in a legal system that seeks to exploit every potential advantage to absolve someone of the crime they are accused of committing, there is no benefit in allowing old prejudices and stereotypes to die. Personally, I am most fascinated by the fact that such prejudices are supposedly illegal under equal opportunities legislation, but whereas there would be a public outcry if a victim’s racial origin were used to discredit them, it is still perfectly acceptable to discredit one due to their gender.

I wouldn’t know where to begin to look for a solution, but it makes me very uneasy, for all my cant, to be an openly sexual woman in Britain today.

October 17, 2006 8:56 pm  
Anonymous Anonymous said...

The problem is that it usually comes down to two people - each has a different version of events.

Unless you can prove beyond reasonable doubt that the prosecutions case is valid, it's an aquital.

If drunk people are not entirely liable for their decisions, at what point does this occur? After any alcohol? How can it be measured?

Alcohol is definitely a personality modifying drug - I have seen many people change completely under the influence. Most people have no idea of how much they change. A documentry based around showing people what they turn into might be a start....

The Anon

October 17, 2006 11:04 pm  
Anonymous Anonymous said...

You're missing the point. If a guy is accused on rape he gets named, the 'victim' doesn't. If he is found innocent (as most are), his name remains out there - his accuser's doesn't. Comments such as 'no smoke without fire' will always exist, resulting in possible repecussions for the innocent man. Maybe only guilty should be named?

October 17, 2006 11:06 pm  
Anonymous NotSaussure said...

Linda, nope. Those lines of cross-examination (complainant's 'behaving provocatively', previous sexual history and so) are pretty much banned nowadays.

The law on the subject (in particular section 41 of the Youth Justice and Criminal Evidence Act 1999) is too complicated to go into here, but essentially the complainant's previous sexual history can only be introduced with the judge's prior permission, and that can be given only in very limited circumstances indeed and only for very specific and circumscribed lines of questioning that the judge thinks are germane to very specific questions that the jury must know about if the trial's to be fair. It certainly isn't usually introduced.

And you certainly can't ask the complainant about her short skirt or whether she was showing her midriff. If a barrister tried suggesting 'she was asking for it', by 'dressing provocatively' or in other way, he'd be in extremely deep trouble with the judge.

Rape trials may be perceived the way you suggest, putting the complainant on trial, but they certainly aren't conducted that way any more. The courts are very much aware of their duty to protect complainants from intrusive and embarassing questioning.

October 18, 2006 12:17 am  
Anonymous Anonymous said...

I am really sick of the blame cultuire that is being encouraged in society today. If you go out and get completely drunk then that is YOUR fault. I am a single woman aged 28 who enjoys going out at the weekend (and sometimes in the week). I drink alcohol, sometimes I get drunk - but I NEVER get so drunk that I don't know what I'm doing. If I did and I got raped that would be MY OWN fault. These young girls you see getting so hideously drunk deserve whatever happens to them. One of my colleagues was bragging the other morning - "last night must have been a good night coz I woke up on a bench and couldn't remember a thing". This is appaling behaviour. Women should exercise some self control and drink within their limits. What is the point of drinking to excess?

I think it is high time we took responsibility for our actions. I do not want to live in a Nanny State where all my decisions are taken away from me and are legislated for.

I realise that these comments may be controversial, and I have no wish to offend anyone who has been attacked or raped, I just feel very strongly that if you are too drunk - it's your fault.

Regards
R

October 18, 2006 1:47 pm  
Anonymous NotSaussure said...

Silver_flight -- no disagreement from me that 'targeting a drunk person for sex is unscrupulous at best'; Ruairi Dougal's behaviour, on his account of events, was completely despicable.

But that doesn't make it illegal as things stand at present, and I don't see how you can alter the principle that drunken consent is still consent without coming up with a law that's in practice unenforceable -- because the first thing the defence is going to want to challenge is whether the complainant was as drunk as now she says she was, and what effect however many drinks it was normally has on her, and did she seem drunk -- and causes such huge problems with the legal idea of intent in general that the solution is going to end up being far worse than the problem it purports to solve.

To my mind, there are many problems that really are best solved through changing attitudes rather than changing the law, which is a very blunt instument at times.

October 18, 2006 7:21 pm  
Anonymous Linda said...

Hello,

Thanks notsaussure for the (excellent!) clarification - that is reassuring.

But still cases are reported - the exception rather than the rule would you say then? - where the judge will remark on an aspect of the alleged victim's sexuality - wasn't there a case recently where a young girl was described in summing up as 'no angel?'

All best.

October 18, 2006 8:35 pm  
Blogger Karol Cross said...

A very sobering and thoughtful read Rachel, as are the previous comments. Thank you all.

October 19, 2006 12:42 am  
Anonymous NotSaussure said...

Linda, I'd need to know more about a case where the judge commented on the complainant's sexuality, but I'd think it astonishing if he did; that line of cross-examination is actually controlled by law rather than just good practice or judicial guidelines.

I've just googled for this remark about 'no angel' because it surprised me so much. All I could find was this report where the deceased victim's grandmother thus described her after the boyfriend's conviction for assault and unlawful wounding. Is that maybe what you were thinking of?

October 19, 2006 2:28 am  
Blogger silver_flight said...

I must disagree with Anonymous (R) - and please note I am a teetotaller - it may be stupid, selfish or whatever to drink yourself into near oblivion, but this behaviour most certainly does not invite rape. Are you saying that men are not capable of controlling their behaviour - they see a drunk woman and have to sleep with her? That is what you are implying when you say it's the woman's fault.

Notsaussure, thanks for your comments. I agree that this is probably an issue that requires a change of perspective in order to be solved. However, if court procedures are as fair to the victim as you say, could I ask for your opinion on why the conviction rate is so low?

October 19, 2006 10:54 am  
Blogger Rachel said...

Thanks everybody for the excellent and thoughtful comments. It is looking hopeful for comment moderator being switched off with this level of intelligent debate and contributions.

Thinking about it, I'm still concerned by the numbers of defence lawyers who still manage to bring in the victim's background, and though they are not supposed to cite sexual history as relevant now, it still happens. More worrying is the recent trend to bring in medical evidence, such as whether the victim has ever sought treatment for depression and can therefore be painted as 'unstable'. That, and the fact that victims often get junior counsel, and a different barrister every time they turn up to court, whiclst the defence gets a more experienced and consistent team is also troubling. Educating juries about trauma and using expert witnesses, victim advocates and the playing of aftermath video police interviews in court may go some way to addressing perceptions that a calm victim isn't traumatised and is therefore lying, and a weeping victim isn't a hysterical regretful liar.

October 19, 2006 11:05 am  
Blogger Rachel said...

Re. 'no angel - this from campaign site http://www.truthaboutrape.co.uk/2005campaign.html

'Guardian Article by Clare Dyer 10th June 1993

Judge's comments echo "silly" remarks



Judge Ian Starforth Hill's comments that an eight year old victim of a sexual attack was "not entirely an angel" raises echoes of the notorious remark by Judge Bertie Richards in 1982 that a teenaged hitch-hiker who was raped after thumbing a lift late at night was "guilty of a great deal of contributory negligence".

The judge, who was banned from trying sex cases as a result, caused an uproar when he let the rapist, a businessman, off with a £2000 fine.

Judge Starforth Hill's word also recall the comment of Mr Justice Owen, a High Court Judge, that a 12 year old rape victim had been "asking for trouble" by going to a 19 year old man's room.

Such pronouncements regularly provoke accusations that the judiciary is soft on sex offenders and prone to belittle victim's ordeals.

In February Judge John Prosser let a 15 year old rapist go free, ordering him to pay his teenage victim £500 "for a good holiday".

The Court of Appeal later increased the penalty to a 2 year prison sentence.

In 1984 Lord Hailsham, then Lord Chancellor, complained that judges say "particularly silly things which are then widely publicised in the media".

In 1988 Judge Sir Harold Cassel QC, refused to jail an ex policeman for indecently assaulting his 12 year old mentally retarded daughter. He said the man was driven to assault the girl because his wife's pregnancy had dimmed her sexual appetite causing "considerable problems for a healthy young husband". Judge Cassel was strongly rebuked by Lord Mackay, the Lord Chancellor, and retired early on medical grounds.

Most of the injudicious remarks have come from circuit judges like Starforth Hill, Cassel, Richards and Prosser.

But High Court Judges are not immune: Mr Justice Leonard, the judge in the Ealing Vicarage rape trial, provoked a furore when he commented that the victim's trauma was "not so great", and gave the burglar who organised the raid a much harsher sentence than the two rapists.

Other sufferers from Judicial foot-in-mouth disease include Judge Brian Gibbens who told a 35 year old builder who had sex with a neighbour's seven-year-old daughter while drunk: "It strikes me, without belittling the offence, as one of the accidents which happen in life to almost everyone, although of a wholly different kind."

Judge Gibbens has since retired, as has Judge Gabriel Hutton.

He pronounced, when jailing a lorry driver briefly for attempted rape: "I hope you'll be able to keep your well-paid job and that the couple of weeks you spend in prison will be treated by your employers as part of your holidays."

Previous Campaign

Our Christmas 2004 campaign concerned the case of Judge Hucker in the trial of a 15 year old who complained of gang rape. The judge doubted the credibility of the young victim. But imagine how confused and distressed she must have felt after being questioned in turn by each man's defence barrister. Such interrogation within the courtroom by a 'gang' of barristers must have felt like another series of attacks.


Previously in 2004 we referred another Judge Michael - Judge Michael Roach - to the Attorney General’s Office for exercising poor judgement in the way in which he discussed the case in court. Before that, in 2003, we chastised Lord Reed who sentenced the rapist of a 13 MONTH old girl to just 5 years. That sentence was subsequently increased because it was deemed to be unduly lenient.

October 19, 2006 11:10 am  
Anonymous NotSaussure said...

Rachel, the examples you give of judges' outrageous comments are old ones; I'm talking about the situation now, particularly in the light of the provisions on cross-examination in the Youth Justice and Criminal Evidence Act 1999, which were introduced precisely because of concern about that sort of thing.

Certainly, you still get some judges who make stupid remarks -- and who get told in no uncertain terms not to do it again. And you get some inappropriate sentences, which get reversed on appeal by the CPS. Judges make mistakes now and again, like the rest of us. My point is that such things are now recognised as mistakes -- which they certainly weren't 15 or 20 years ago -- and are very strongly discouraged.

As to the example of Judge Michael Hucker, I'm not sure what point is to be drawn. He stopped the trial -- which is very unusual in any criminal case -- because he thought, after hearing her give evidence, the complainant's account was too unreliable for a jury safely to convict on. Neither of us were in court, so we don't know what led him to that, but it will have been because of the evidence she gave was manifestly unreliable rather than that he thought she was. That's maybe not very clear. A judge can't say 'I think this witness is unreliable so I'm directing a not guilty verdict'. It's for a jury to decide what evidence they accept and what they don't, though there are circumstances where the judge has to urge caution in relying on a witness's evidence. What, however, the judge can say is that, on the basis of the evidence the complainant has given, credible or not, a jury can't safely convict -- because, perhaps, the witness has changed her evidence from what she said in her initial statement and now says she 'can't remember' or 'isn't sure' about certain crucial points on which she's given contradictory evidence.

As to medical evidence about the complainant's psychological condition, I know there are special rules about when it can be introduced -- I'll have to check what they are, though. I know the judge can admit it, if he thinks it's relevant, when the defence is 'it never happened' but I'm not sure what the rules are when the issue is consent. It's certainly not usually introduced in consent cases.

As to silver_flight's question about why the conviction rate is so low, that's largely explained, to my mind, by the nature of the balance of proof in cases where the issue is consent. Very frequently, you've then got a situation in which the jury is asked not, 'Who do you think is telling the truth' but 'Are you sure he is not telling the truth?' and all they've got to go on is the evidence of the complainant and the defendant.

In most other criminal matters, you've got witnesses and other kinds of evidence -- in a consent case, there's normally no dispute about what happened, other than whether you can be sure the complainant didn't consent at the time. 'I'm pretty certain she didn't, but I'm not absolutely sure. He just might be tellng the truth' means 'not guilty', I'm afraid.

October 19, 2006 2:52 pm  
Blogger Devil's Kitchen said...

And quite correctly too.

DK

October 19, 2006 4:02 pm  

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