Rape? or an unpleasant sexual encounter?

[Saffron]

I am posting the below topic in response to a suggestion by Webmaster and Mol12. I think it could open an interesting debate, and would like to hear other people's opinions. The post is as follows:

I think Diana's comment is very interesting....with regard to the whole rape/false allegation discussion.

I think it is true to say that a lot of women will participate in sexual activity fairly willingly, but later feel grubby, ashamed of themselves, and a bit used. Maybe this is because they were being unfaithful to a partner, or were very drunk, and it seemed like a good idea at the time. I think most women today have experienced this kind of feeling, and it is not pleasant.

However, there are some who exonerate themselves of responsibility by reclassifying it in their heads as being non-consensual. They reassure themselves that they were not willing participants, and the blame for irresponsible behaviour is shifted from themselves, to the other person. If they repeat this often enough to themselves, they really come to believe it.

Quite how it gets from this to a false allegation made to police and resulting in a full trial, i can't rightly say. As a reasonable, honest person I can't ever really understand what makes people do such things. (nor can a jury, by and large,). I would guess that the "victim" makes the mistake of sharing her "ordeal" with a friend, who urges her to report it, and as she cannot bear to admit to her lies, the police become involved.

[diana_holbourn]

It seems that there are extremes of injustice on both sides, and whatever the motives of false accusers, they, and the perception that many accusations are false, do a lot of damage to genuine rape victims. A couple of days ago, I found a thread on another forum about the stress caused because the police disbelieved genuine victims: http://pub41.bravenet.com/forum/3462.../fetch/545115/

[diana_holbourn]

I think another issue is that it may be that a lot of young women and teenagers are pressured into having sex, and while it wasn't rape because they consented, they only did it because they felt bad about not doing so because their friends would think it was uncool, or because they didn't want to hurt the man's feelings, or because they just wanted to be free from being pestered, or because they weren't assertive enough to know what to say to get out of it, or whatever. Maybe afterwards, many of them regret it, and some feel so resentful about the pressure that they feel compelled to report what happened as a rape. Maybe two things could cut down the incidence of this: more assertiveness training in schools as part of sex education, and perhaps even a new offence of having sex with someone after putting unwelcome pressure on them, which would receive a lighter sentence than rape.

[Saffron]

<div class='quotetop'>QUOTE(diana_holbourn &#064; 20th September 2005 &#045; 07&#58;47 PM) Quoted post</div><div class='quotemain'>
perhaps even a new offence of having sex with someone after putting unwelcome pressure on them, which would receive a lighter sentence than rape.
[/b][/quote]

I&#39;m sorry, but that is just plain ridiculous. If someone&#39;s advances are unwelcome, it is down to you to say "no". If they still don&#39;t get the hint, you remove yourself from the situation. Simple.

A new law making it an offence to pressurise someone into having sex would remove all responsibility for your own actions from women (and men).

Additionally, personally I find it pretty insulting - the law would suppose that I am incapable of saying "no" and making a choice about who I want to go to bed with.

Over these pages we have seen a lot of stories from both men and women who have allowed themselves to get into vulnerable situations, resulting in both rapes and false allegations. If both parties would behave more responsibly, and not allow themselves to get into these situations a lot of heartache could be avoided. Creating a new law like this would serve only to perpetuate the blame culture, create more victims, and more criminals.

An old strapline, but very true: just say no.

However, I do agree that more assertiveness training as part of sex education would be a good idea.

[mol12]

However, I do agree that more assertiveness training as part of sex education would be a good idea."
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I think this goes for all lines of education not only sex,just look at the children with the desiner gear, how many children are (forced)"think obout that word" into having THE right gear, we no longer have indviduals growing up, we need children with independent minds, indviduals who can make decions without being influenced, by the media (and parents)

[karen]

There is a massive difference between an actual rape and consensual sex which you later regret for whatever reason, (eg. you were too drunk, scared of your partner finding out, you are embarrassed by what people might say...the list goes on.) Many women have had at least one unsatisfactory sexual experience but the vast majority would never cry rape in these circumstances. When a false accusation is made some women will be aware that they are lying, others will actually believe that a rape took place - perhaps because they can&#39;t remember what actually happened. Added to this you have a police force who are judged on performance and statistics and in some cases are so desperate to up their conviction rate that they will push for a criminal trial without a shred of evidence, by this point the "victim" is too embarrassed to retract their story or has been encouraged to believe that something untoward did actually happen. I&#39;m not sure what the way forward is - we should all take responsibility for our actions but the sad fact is that rapes do happen and we do not want to alienate real victims. Unfortunately, the rising number of false allegations means that the credibility of real victims is being eroded.

[diana_holbourn]

<div class='quotetop'>QUOTE(Saffron &#064; 21st September 2005 &#045; 09&#58;49 AM) Quoted post</div><div class='quotemain'>
I&#39;m sorry, but that is just plain ridiculous. If someone&#39;s advances are unwelcome, it is down to you to say "no". If they still don&#39;t get the hint, you remove yourself from the situation. Simple.
[/b][/quote]

Plain ridiculous? I don&#39;t think so. Under the recent laws, isn&#39;t it possible for people to be charged with rape if the person was too drunk to consent? With the offence I proposed, I think people who may be currently charged with rape because they took advantage of someone while they were drunk may instead be charged with the lesser offence. And a law like that would hopefully be a deterrant to the current tendency for people to allow themselves to be ruled by their hormones. I wasn&#39;t necessarily envisaging that the offence should warrant a prison sentence. But there are cases where people give into pressure to have sex because they worry that the matter will escalate if they don&#39;t, and things could eventually develop into rape, so they give in to stop that happening. It&#39;s not always going to be "simple" to remove yourself from a situation. For instance, escalating pressure might be persistent over weeks on a college student who shares their hall of residence with their pesterer.

In cases where rapists are now walking free because they claimed that the accuser consented, so the DNA evidence counted for nothing, they may at least have something on their records if such a law was to be put in place, because it would be much easier to have them charged with that, which, while unsatisfactory, would at least be better than nothing. If juries were sometimes given the choice of charges, they might sometimes choose the lesser one instead when they felt the evidence for actual rape was flimsy, which may spare a lot of falsely accused people from prison and a terrible stigma now, and at least mean that rapists who are now being acquitted had something on their records.

It&#39;s all very well to just say people should behave more responsibly. Of course, they should. But teenagers will only do that when they&#39;re taught to respect themselves, and to have the courage to stand up against cultural norms and be more assertive about what they want personally. It seems they&#39;re currently very far from getting such guidance a lot of the time.

[karen]

<div class='quotetop'>QUOTE(diana_holbourn &#064; 22nd September 2005 &#045; 05&#58;52 PM) Quoted post</div><div class='quotemain'>
Under the recent laws, isn&#39;t it possible for people to be charged with rape if the person was too drunk to consent? [/b][/quote]

On that basis I could probably prosecute my partner for any time that we have engaged in sex after a night out. Consensual sex does not normally start out with the question "do you want to do this?" - it normally develops naturally. Not saying yes is not the same as saying no. At some point in the future we will be forced to draw up pre-sexual agreements, signed in the presence of an independentl witness&#33; As a rape victim I do understand that there are instances where a woman may be incapacitated in some way, by drugs, drink or plain shock, but we have to be careful in assuming that any situation where a woman does not expressly say yes equates to rape.

My biggest gripe is with the unlevel playing field. I feel strongly that the identities of both parties should be revealed or both should be protected. There should also be more control over what the press can publish whilst a trial is ongoing, many of the facts are omitted in the quest for a "scandal" story. Why should an innocent man be left with the stigma of an accusation allowing people to think that he "got away with it"

[Saffron]

<div class='quotetop'>QUOTE(diana_holbourn &#064; 22nd September 2005 &#045; 05&#58;52 PM) Quoted post</div><div class='quotemain'>
Plain ridiculous? Under the recent laws, isn&#39;t it possible for people to be charged with rape if the person was too drunk to consent?
In cases where rapists are now walking free because they claimed that the accuser consented, so the DNA evidence counted for nothing....If juries were sometimes given the choice of charges, they might sometimes choose the lesser one instead when they felt the evidence for actual rape was flimsy, which may spare a lot of falsely accused people from prison and a terrible stigma now, and at least mean that rapists who are now being acquitted had something on their records.
[/b][/quote]

Yes, having sex with someone who is drunk is now classed as rape, and personally I think that is plain ridiculous as well. How "drunk" does one has to be before it becomes rape? 8 bacardi breezers maybe? 4 glasses of wine? a pint of lager? who knows? alcohol affects all of us differently. i think that probably every woman in the UK could claim to have been raped under this new law.

And as for our kids...yes, they should be encouraged to think freely, make their own decisions, and be steered away from peer pressure. As a parent myself, I encourage my son to be his own person, and not follow the herd. Before you are allowed to drive a car, you need to take a test to prove your competency. But any fool is allowed to have a child. Add to this the litigious blame culture we live, and parents are able to exonerate themselves from all responsibility for their kids upbringing. Maybe parenting classes should be compulsory for all new parents to be?

As for rapists walking free because they claimed sex was consensual - this is simply no longer true. Under new laws (also brought out at the same time as the alcohol law) the alleged rapist has to be able to prove he took reasonable steps to ensure consent was given.

And - getting on my high horse now - if juries feel that the evidence of rape is "flimsy," then they should acquit, NOT convict&#33; Our system of justice is based on proof of guilt BEYOND ALL REASONABLE DOUBT. The burden of proof is supposed to rest with the prosecution, although as too many of us know, this is not necessarily the case.

I know that guilty people do walk free, and innocent people are convicted. However, public concern seems to rest only with the guilty that walk free. Locking up innocent people seems to be regarded as a small price to pay.

[diana_holbourn]

I agree with what you say about how parenting classes should be compulsory for everyone. Then, there whouldn&#39;t be any perceived shame in them, and so long as the courses were good, a lot of kids would probably be being brought up better. After all, it must take more skill to bring up a child well than to drive a car.

I think the idea that it should be made an offence to have sex with someone after putting undue pressure on them is still one worth working on. It could help, for instance, in the situation like the one I cited where people have sex with others only because they worry that if they don&#39;t, the situation could escalate into one where force is used.

Perhaps an alternative to giving juries the option of convicting someone of putting undue pressure on another person to have sex if they don&#39;t think there&#39;s quite enough evidence to convict them of rape even though they&#39;re still suspicious that untoward behaviour took place is to bring in the option they have in Scotland where they can give a verdict of "unproven", as well as the traditional "guilty" or "not guilty" ones.

[Saffron]

I have often thought about the idea of a "not proven" verdict, which juries could use if they felt a person was guilty, but the prosecution hadn&#39;t proved it "beyond all reasonable doubt". But I think this could result in more falsely accused people facing charges, and more genuine rapists escaping justice, Let&#39;s face it, most juries do believe the "victim" hidden behind the screen, but acquittals happen where there is not enough evidence.

As I have said before, juries tend to judge people by their own standards. Most normal people would never dream of making a false rape accusation, and therefore cannot grasp the idea that someone else would. Therefore as the jury file in, they generally have the perception of "well, something must have happened, otherwise she wouldn&#39;t be here today..."

Rape is the only crime where no corroborating evidence is required.

[diana_holbourn]

So why do you think "Not proven" verdicts could result in more rapists escaping justice and falsely accused people being convicted?

It may be that when juries first come in to court, their inclinations are to believe accusers. But defence lawyers have often been known to try to trivialise what happened, and put twisted interpretations on what the accuser&#39;s saying, and play on what they know to be prejudices commonly held, like that if a person went for "coffee" at the home of the man who later attacked her, she must have known what he really wanted. Thus eventually, juries can be made much less sympathetic.

[Saffron]

I didn&#39;t say I thought it would result in more innocent people being convicted, I said I felt it would result in more innocent people facing charges. The CPS are already of the "give it a whirl" attitude - if there was a "not proven" option, I feel it would result in even more cases going to court on the flimsiest of evidence.

And in cases where the jury felt the defendant was guilty but the CPS hadn&#39;t proven it 100%, it would result in a Not Proven verdict. Admittedly, this would be better than a Not Guilty verdict, but still would mean the guilty party had escaped justice.

Incidentally, I was interested to read your comments elsewhere on this site about defence barristers not seeing victims as real people, and putting them through a terrible ordeal with their line of questioning. I do take on board what you say, but it does apply the other way around as well. Prosecution barristers are exactly the same to defendants. I clearly remember at my husband&#39;s trial, the prosecution barrister doing everything he could to paint my husband&#39;s character as unreliable and devious, asking him every minute detail about his sex life. Questions, incidentally, that we were not allowed to ask his accuser, despite the fact that she was a known class A drug user, and had had many sexual partners, lesbian and heterosexual encounters, and been unfaithful to her partner many times.

So, yes, victims are cross examined in court, but so are the defendants. At the end of the day, the barristers are doing a job. They are the ones who have to sleep at night, knowing that they have helped a rapist to go free, or convicted an innocent man. It goes both ways.

[diana_holbourn]

Maybe a lot of the time, the way the case goes will depend on which lawyer is the most devious, experienced and committed. It sounds as if the prosecution had by far the most of those qualities at your husband&#39;s trial. It&#39;s a pity things were so uneven.

[Saffron]

Unfortunately, I think you have hit the nail on the head. The success or failure of a case rests largely on how skilled the barrister is, and as most defendants rely on legal aid, the quality of the barrister is poor. Similarly, the CPS does not tend to attract the "cream" of the legal profession although as a general rule of thumb the quality is better than that of the Legal Aid camp.

It shouldn&#39;t be like this, but it is. I have racked my brains to come up with a better alternative, but everything I think of has faults, as does our current system.

One of the things I really loathe about my experience with the legal system is that it has planted a nasty seed of scepticism in me when it comes to allegations of rape. I hate that I query the veracity of some people&#39;s ordeals, but I find the injustice of what has happened to me and my family has killed some core of trust that was at my centre.