Anarchy in the UK

[Machfive]

Can someone in the UK please debunk this as some sort of horrible tabloid dreck? Because I'd really like to believe that your police and judicial system isn't as buggered as this article makes out.

http://www.detnews.com/apps/pbcs.dll/article?AID=/20080606/NATION/806060305/1020

According to government statistics, only 5.7 percent of rapes officially recorded by police in England and Wales end in a conviction.

"What are they saying?" Davies asked. "That 95 percent of women that come forward are telling lies?"

Well, women are born of Satan's womb, after all. They'll trick you!

Last year, a judge sentenced a 24-year-old man to two years in prison for having sex with a 10-year-old after concluding that the girl had "dressed provocatively."

*Scoff*

Patricia Scotland, England's first female attorney general since the job was created in the 15th century, appealed that sentence. It was increased to four years.

*DoubleScoffOnTheRocks*

[ravenight]

How exactly does a 10 year old dress provocatively? Was she wearing some sort of T&A suit?

[Rimbo]

"I swear, yer honor, she told me she was fifteen!"

[Houngan]

"I swear, yer honor, she told me she was twelve!"

Disgustedly fixed.

H.

[Machfive]

H., I had the same thought, but I was gonna say thirteen. Perve.

[Kraaze]

If there's grass on the field, compliment the gardening staff!

Wait, what am I talking about again?

[salwon]

What's the statistic for America? Rapes here can also be mishandled by the justice system, to put it politely.

[Machfive]

Maybe I've watched too much Law & Order SVU, but I can't believe it's less than 10% here. I'd be shocked if it was.

[Rimbo]

Twelve? Thirteen? Perverts.

[Sarkus]

The UK is a weird place when it comes to the issue of underage sex. While the age of consent is 16, a UN study said that 40% of UK teens have had sex by 15, which is way above the next closest of the wealthier countries studied (next closest was 28%).

In other words, there is a much different culture involved.

[Machfive]

There's gigantic chasm between 15 years olds having sex with people their age and 25 year olds raping 10 year olds.

[Sarkus]

There's gigantic chasm between 15 years olds having sex with people their age and 25 year olds raping 10 year olds.

No doubt, but 40% have sex by 15 means a lot of them are having it at 14, 13, 12 . . .etc.

I'm not justifying how fucked up the legal system is in that case, I'm saying that it's clear that the UK youth culture has different ideas about when it's really ok to have sex.

[Machfive]

Honestly, 40% by age 15 seems pretty low to me. I'd expect a similar number here in the states.

And besides the Puritanical background the US has, I don't think our views on sex differ that greatly with our brethren across the pond. Our views on obscenity differ a bit, but I don't think that our kids are having significantly less or more sex than UK kids.

[jpinard]

That kind of news is so infuriating. The judge in the case that ruled the guy shouldn't have prison time... Maybe "eye of an eye" should come back if the legal system is so in favor of criminals. Disgusting.

[Wisbechlad]

Yep, AFAIK there has been a lot of discussion on how to improve it. Juries are very reluctant to bring guilty verdicts in many rape cases - the "beyond all reasonable doubt" thing on what is often "he said, she said" evidence. Often needs to be a clear cut "stalker with a knife who dragged me into the bushes" “real rape” case for them to convict.

http://news.bbc.co.uk/2/hi/uk_news/4296433.stm

But most cases tend to involve both parties drinking lots of alcohol, and did he really know she wasn't "up for it"?

Because rape is a capital crime, with (normally) long gaol time, and (rightly) massive stigma attached, juries don't like to convict unless they are really really sure.

IMHO, there needs to be a "manslaughter" level of charge (sexual assault, statuary rape?) to give juries the comfort to convict the "date rape" scenarios Because the concept of "unless she gives explicit consent, it is rape, full stop" gets nullified by juries

Didn't help that, ISTR, some of the solutions proposed were extreme – e.g. That the victim shouldn't have to testify. You are going to put someone on trial for essentially their life (the stigma of a rape conviction will never go away, whereas something like assault – yeah, 20 years later people won't hold it against you) and not allow the accused a chance to defend himself?

[AaronSofaer]

Because the concept of "unless she gives explicit consent, it is rape, full stop" gets nullified by juries


Fuck that shit. If I was on a jury, I'd probably go with the concept in a heartbeat and do my damndest to get the other jury members to, too.

Statuatory rape at the moment is ridiculous. About as bad, as far as I'm concerned, as a law that makes sodomy a sex crime and puts you on the sexual offender lists if you engage in it.

[Sarkus]

Fuck that shit. If I was on a jury, I'd probably go with the concept in a heartbeat and do my damndest to get the other jury members to, too.

Statuatory rape at the moment is ridiculous. About as bad, as far as I'm concerned, as a law that makes sodomy a sex crime and puts you on the sexual offender lists if you engage in it.

The problem is that there has been some attempts to broaden "rape" to include passive and even retroactive scenarios. For example, there was a case many years ago where a college campus counselor advised a girl to go after a guy for rape even though she consciously choose to have sex with him because she thought it would make him feel better about a recent break-up with another girl. She didn't do anything to indicate to him that she wasn't interested and only decided it had been a mistake the next day. That's not rape by any reasonable definition.

Look, we have different levels of murder, so why shouldn't we have different levels of rape? Sometimes it isn't as cut and dry as it might look in theory. You might argue that judges have the ability to adjust for those issues, but the infamous Genardo Wilson case in Georgia shows that sometimes reason gets thrown out the window in court.

[AaronSofaer]

The problem is that there has been some attempts to broaden "rape" to include passive and even retroactive scenarios.

So they're wrong and the jury should find them innocent. And then the girl's friend, in your example, should shun them and the college campus counselor should be fired. Assuming that she had explicitly agreed.

Also, I think having sex with someone who's intoxicated, unless they agreed explicitly to have sex beforehand, is rape.



Look, we have different levels of murder, so why shouldn't we have different levels of rape? Sometimes it isn't as cut and dry as it might look in theory.


If all parties explicitly consent to whatever sexual act, it's not rape. If they didn't, and one of the people involved was unwilling, it's rape. How is this not cut and dry? I challenge you to give me a circumstance that I won't think is still cut and dry.

It's not that it's black and white. It's that color is granular, and there is a very specific threshold where it's rape, as opposed to not rape, and that threshold, while probably unique to each individual in his mind, is in my mind quite fixed.

[AaronSofaer]

Tthe infamous Genardo Wilson case in Georgia shows that sometimes reason gets thrown out the window in court.



Really? Reading up on that, it seems that the court faithfully convicted a young man who violated a criminal law, doing so in accordance with the law. The facts of the case are not, from a cursory reading, under dispute; he never argued that he did not have oral sex with the girl, nor that he and she were of the ages claimed.

While I think the law is absurd, he understood exactly what he was doing when he fought it in the courts instead of taking the plea bargain, if I read what he's on record as having said correctly.

The US has had a long history of the courts convicting people on laws which we may find wrong but which were laws and constitutional ones at that. Morality of laws belongs to the legislature and the Executive veto (and possibly pardon), and Constitutionality of laws in the end lies with the Supreme Court.

[Sarkus]

Also, I think having sex with someone who's intoxicated, unless they agreed explicitly to have sex beforehand, is rape.

How do you reconcile that view with the amount of consensual drunken sex that happens all the time? If the person is too intoxicated to make a decision, then sure. But you can be a lesser degree of drunk and still make that decision. Or are you suggesting there are a lot of people out there who should feel they were forced to have sex when they went to a bar, got drunk, and hooked up, as they had hoped?

If all parties explicitly consent to whatever sexual act, it's not rape. If they didn't, and one of the people involved was unwilling, it's rape. How is this not cut and dry? I challenge you to give me a circumstance that I won't think is still cut and dry.

If we knew exactly what happened, then it would be cut and dry. But how do you decide when it's a two people with different stories? Or one of them says they were too scared to make an effort to stop it from happening? That's where it is no longer cut and dry.

And statutory rape cases bring up a whole different set of issues due to the arbitrary age of consent decision combined with the arbitary age of adulthood. If a 15 year old has apparently consensual sex with an 18 year old should the same punishments (if any) apply as would if a 30 year old raped a 10 year old? And yet by defining rape as a simple yes/no crime with a specifically defined set of punishments, you end up with each "rapist" being treated the same.

Edit: I used the Wilson case because it illustrates the core issue of statutory rape I was referring to and the basics of it are well known. However, I would agree that it's not as simple a case as it is often presented as being.

[Aeon221]

Also, I think having sex with someone who's intoxicated, unless they agreed explicitly to have sex beforehand, is rape.


OH NO YOU JUST INFORMED ME THAT I'VE BEEN RAPED MAYBE HUNDREDS OF TIMES.

I'm going to go find some emo music, turn it on, and then like cut my wrists or something. Oh the pain of being raped by those insatiable beer fueled women! Oh the agony! Why can't they just stop?! Why do they have to just use me like I'm some kind of walking dildo?! Why?!?!?!?!

=(

But seriously, you know you're required by law to inform us if you're in some kind of contest to say the stupidest thing ever, right?

[AaronSofaer]

How do you reconcile that view with the amount of consensual drunken sex that happens all the time? If the person is too intoxicated to make a decision, then sure.

We're using different definitions of the word drunk. I hereby nominate your phrasing of "too intoxicated to make a decision" instead.


As far as statutory rape goes, I think it's a totally different discussion from rape because the argument isn't that the other party didn't consent, the argument is that the other party was constitutionally incapable of consent due to being under the age of X.



If we knew exactly what happened, then it would be cut and dry. But how do you decide when it's a two people with different stories? Or one of them says they were too scared to make an effort to stop it from happening? That's where it is no longer cut and dry.

Argh, I can explain my position in the morning better than I can now, but briefly, you don't need to make an effort to stop it from happening, you just need to not consent. Consent must be explicit! Not saying that without explicit consent it's necessarily rape, just saying that with consent, it's not rape.

[Sarkus]

Argh, I can explain my position in the morning better than I can now, but briefly, you don't need to make an effort to stop it from happening, you just need to not consent. Consent must be explicit! Not saying that without explicit consent it's necessarily rape, just saying that with consent, it's not rape.

Fine. Still doesn't deal with the differing stories, no witnesses issue.

[AaronSofaer]

Fine. Still doesn't deal with the differing stories, no witnesses issue.


Ah, I see where you're going with the not-clear-cut stuff. You're saying that the case itself, the facts under dispute relating to the crime or lack thereof, are not clear cut.

I thought you meant that the situation was essentially confirmed and the facts were not under dispute.

The principle I'd reach for under this example is the concept of "Beyond a reasonable doubt", which I think is written somewhere in some legal system.

If it's literally just he-said she-said, and the odds are somehow 50/50 exactly, well, 50/50 isn't beyond a reasonable doubt. Nobody should be convicted at 50/50 odds in the US's criminal justice system.

[Wisbechlad]

Yep, one of the studies by the UK govt on this looks at "attrition" - when and why rape complaints/ cases get dropped, and the lack of support from the police and prosecution services at these stages. Once cases get to court, convictions are reasonably high, not that different to other major crime cases, because the CPS was only pushing cases where it thought it could win - so the 50/50 cases don't get to court, because juries tend to give benefit of the doubt

Just to really get things confused, the govt changed the law in 2003 to make rape easier to convict, and introduced the idea that any sex with an intoxicated person = rape as by definition they can't consent - but last year the appeal court basically said, no.

In the UK law, if you reasonably believe you have consent, not rape... (used to be honestly believe, the change in wording was pretty significant)

"Sexual Offences Act 2003 a person (A) commits rape 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."

Appeal court then ruled -

Voluntary Intoxication Does Not Automatically Remove Capacity to Consent to Sexual Intercourse

R v BENJAMIN BREE (2007)

CA (Crim Div) (Sir Igor Judge (President QB), Hallett LJ, Gloster J) 26/3/2007

CRIMINAL LAW - CRIMINAL PROCEDURE

Consent: Jury Directions: Rape: Voluntary Intoxication: Complainant’s Voluntary Excessive Alcohol Consumption: Capacity To Consent To Sexual Intercourse: S.74 Sexual Offences Act 2003

If, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant’s state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not
be rape.

The appellant (B) appealed against his conviction for rape. B and the complainant (M) had spent an evening together and had voluntarily consumed a considerable amount of alcohol before returning to M’s flat and having sexual intercourse. The Crown initially alleged that M had lacked the capacity to consent to the intercourse because she had been unconscious throughout most of the sexual activity but, following the evidence at trial, altered its stance to maintain that, although her ability to resist B’s sexual advances had been hampered by the effects of alcohol, she still had capacity to consent and that she had made clear, so far as she could, that she did not wish to have sexual intercourse. M accepted that her recollection of events was very patchy and that she did not say “no” to intercourse; however, she maintained that she had not consented. B maintained that M had been conscious throughout the incident and that he had reasonably believed that she was consenting.

HELD

(1) The proper construction of the Sexual Offences Act 2003 s.74, which defined consent, was that if, through drink, or for any other reason, the complainant had temporarily lost her capacity to choose whether to have sexual intercourse on the relevant occasion, she was not consenting, and subject to questions about the defendant’s state of mind, if intercourse took place, that would be rape. However, where the complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. As a matter of practical reality, capacity to consent could evaporate well before a complainant became unconscious. However, whether that was so depended on the actual state of mind of the individuals involved on the particular occasion. It would be unrealistic to create a grid system that would enable the answer to those questions to be related to some prescribed level of alcohol consumption as everyone’s capacity to cope with alcohol was different and even varied from day to day. The Act provided a clear definition of “consent” for the purposes of the law of rape, and by defining it with reference to “capacity to make that choice” sufficiently addressed the issue of consent in the context of voluntary consumption of alcohol by the complainant.

(2) In a trial in which issues of consent and voluntary intoxication were fundamental to the outcome, the jury had been given no or no sufficient directions to enable its verdict to be regarded as safe. The jury should have been given some assistance with the meaning of“capacity” in circumstances where M had been affected by her own voluntarily induced intoxication, and also whether, and to what extent, they could take that into account in deciding whether she had consented. Moreover, the judge had not addressed the significantly changed way in which the Crown put its case. It was possible that the jury had proceeded on the basis that M had been unconscious, contrary to the Crown’s case in its developed form. In a situation like that the issue of consent and capacity should have been irectly addressed, R v Olugboga (1981) 73 CAR 344 applied. The only specific feature of M’s alcohol consumption identified by the judge was its possible relevance to her reliability as a witness. Although B conceded that M had been drunk, it was a fundamental part of his defence that she had been conscious throughout and had in fact consented to sexual intercourse. That critical aspect of the case had not been addressed in the summing up. The questions of whether M might have behaved differently drunk than she would have done sober, and whether she might have behaved as B contended, and the way in which the jury should consider those important issues, had not been mentioned at all.

APPEAL ALLOWED

© Lawtel

[jpinard]

The problem is the case cited by Machfive. That situation is ridiculous and he should have had the book thrown a him.

[Sarkus]

Ah, I see where you're going with the not-clear-cut stuff. You're saying that the case itself, the facts under dispute relating to the crime or lack thereof, are not clear cut.

I thought you meant that the situation was essentially confirmed and the facts were not under dispute.

The principle I'd reach for under this example is the concept of "Beyond a reasonable doubt", which I think is written somewhere in some legal system.

If it's literally just he-said she-said, and the odds are somehow 50/50 exactly, well, 50/50 isn't beyond a reasonable doubt. Nobody should be convicted at 50/50 odds in the US's criminal justice system.

I think you're being rather snarky and inconsistent. Go back and look at how our exchange got started.

IMHO, there needs to be a "manslaughter" level of charge (sexual assault, statuary rape?) to give juries the comfort to convict the "date rape" scenarios Because the concept of "unless she gives explicit consent, it is rape, full stop" gets nullified by juries.

Fuck that shit. If I was on a jury, I'd probably go with the concept in a heartbeat and do my damndest to get the other jury members to, too.

Now maybe I'm misinterpreting this, but it looks to me like you are saying that rape is a very clear cut thing and that as a juror you would have no problem applying it. In other words, it either happened or it didn't. You don't see a need for a lesser rape charge to be used in cases where it isn't as clear and probably never will be.

Wisbechlad is pointing out that many of the marginal cases don't make it to trial and when they do the juries don't often convict due to reasonable doubt. What we need is a way to seperate error of judgment/intoxicated rapes from intentional/malicious rape. They aren't the same crime.

[AaronSofaer]

Now maybe I'm misinterpreting this, but it looks to me like you are saying that rape is a very clear cut thing and that as a juror you would have no problem applying it. In other words, it either happened or it didn't. You don't see a need for a lesser rape charge to be used in cases where it isn't as clear and probably never will be.

Wisbechlad is pointing out that many of the marginal cases don't make it to trial and when they do the juries don't often convict due to reasonable doubt. What we need is a way to seperate error of judgment/intoxicated rapes from intentional/malicious rape. They aren't the same crime.


I think I had my wires crossed as far as your meaning. I was responding to what I thought was a comment by you about jurors, after having determined someone was a rapist, then not wanting to convict him because of the severity of the penalty.

[David Erikson]

OH NO YOU JUST INFORMED ME THAT I'VE BEEN RAPED MAYBE HUNDREDS OF TIMES.



Priceless.