Frances Gibb: Legal Editor
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Judges may be issued with new guidelines to ensure that they apply the law properly as to whether a drunken person alleging rape can be held to have consented.
Vera Baird, QC, the Solicitor-General, said it was “worrying” that some judges were dismissing rape allegations on the ground that an alleged victim had consented – even after a crucial Court of Appeal ruling in March.
Guidance to judges should make clear that sex is rape if the victim has lost his/her capacity to consent; and that this can be lost well before the victim is unconscious through drink. Equally, some people can consume substantial quantities of alcohol but not lose their capacity to choose whether to have sexual intercourse.
Announcing a package of reforms to boost the number of rape convictions, which “remains unacceptably low”, Ms Baird said that it was “very, very important that judges understand the law on capacity to consent”.
This had been clearly set out in the Court of Appeal case by Sir Igor Judge, Head of Criminal Justice. But it was not being “universally followed”. In his Court of Appeal ruling, Sir Igor said: “If, through drink, or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape.”
The court emphasised that, “as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious”.
Ms Baird, a criminal barrister who has appeared in many rape trials, also announced that a panel of experts including judges and doctors was being set up to dispel the “myths” about rape victims. The group of academics, doctors and judges will meet for the first time next month to examine how to tackle jurors’ misconceptions.
“For example, juries sometimes find it difficult to understand why a rape has not been reported to police immediately when, in fact, it can take victims some time to decide to make a complaint,” she said. “Juries can think that she will be upset and very emotionally raw when she relives the episode for the court when, in fact, posttraumatic stress makes people seem unemotional and almost matter-of-fact. Someone who doesn’t know about this thinks that the person hasn’t been moved and that it was not the traumatic experience that it was.”
Her paper, published yesterday, is a response to government proposals for boosting rape convictions issued last year. At present 5.7 per cent of complaints to the police result in a conviction. Ms Baird pointed out that two years ago the figure was 5.2 per cent. It was “not much to swank about” but it showed perhaps that the measures in place were starting to have an impact.
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Rape is rape and its the most violating and indecent thing a person can do to another- whether homosexual or not.... The sad thing is in this day & age most men get away with it- because of ludacris theorys like the above. So be it on Jury's heads that let them go- no one should violate another EVER
Becca, Portsmouth, England
CPS have a duty to prosecute crime. That includes women who make false allegations. We need to crack down on tese abusers.
Jo Morris, London, UK
No anonymous, only about 12% of all rape allegations get to court and once there result in about a 44% conviction rate.
See Camilla Cavendish's article for the full details;
http://www.timesonline.co.uk/tol/comment/columnists/camilla_cavendish/article2963335.ece
JS, London, England
The comments on this page alone is proof enough that the government's stance, including that of Vera Baird QC, on dispelling the myths surrounding rape, women and sexuality is to be welcomed.
The CPS have a duty to prosecute rape in almost all cases because this is in the public interest. However, this does not mean that all the evidence, including scientific evidence and the complainant's background, is discounted.
The British Crime Survey states that 1 in 20 women have been raped. The 2007 report by HM Inspectorate of Constabulary and HM CPS Inspectorate found that the scale of false allegations are over-estimated, and that the police continue to wrongly record rape allegations as 'no crimes' in nearly 1/3 of cases.
Assumptions need to be challenged, and there are many who welcome the panels contribution to the courts' work in this sensitive area.
Jennifer L., London,
I am epileptic, and when I have a seizure I look as if I am drunk, and am often mistaken for a drunk. According to many of those here it would be OK for someone to have sex with me when i am in this state if they believed I was drunk. In fact if I choose not to take my medication, I have chosen to have a seizure as much as someone who drank chose to get drunk so according to you the rapist should not be punished. it shocks me that so many people seem to believe in some sort of trible law, where a woman is punished for her actions by being raped, or at least the rapist is told it is ok to rape because the victim is drunk. Considering that most people are raped by their partners or ex-partners I suppose those here belive that any person silly enough to get married is "asking for it" and we should not punish the rapist. Or do people bleat on about the decline of marriage in the UK today? Those for this attitude just want to control women, if not by law then by fear of decriminilized rape!
Ashley, manchester, uk
I agree. Far too many false allegations are prosecuted. If only strong cases were prosecuted the conviction rate would improve.
Jo Morris, London, UK
As I understand it, all rape accustaions go to trial, no matter how little the evidence, whereas in all other cases, the decision to go to trial goes on the merits of the case.
This is because the authorities do not want to be seen ever to be prejudiced against the woman. The damage done by a false rape charge is not taken into account.
If the usual rules for bringing cases trial were applied, I suspect the percentage conviction rate would be in line with other crimes.
Violent rape is a horrendous crime but it should not be put into the same box as two drunken peers doing something they probably both regret the following morning.
anonymous, anonymous,
The real reason that there is a lack of convictions is that they system is so slewed in favour of the woman that juries do not trust it!
A woman can be too drunk to consent but a man cannot be too drunk to realise it.
A womans identity is protected, a man's is not.
In the cases where women make false accusations they are rarely prosecuted and when they are the sentence is usually derisive.
Until justice is seen to be fair rape convictions will inevitably remain low!
David Manley, Las Palmas, Spain
Ms Shan Morgain
There is only one thing you have put forward that I dissagree with. If false claims are not punished it would mean that women could bring forward false claims without fear of justice which is wrong. In an ideal world this wouldn't be a problem but unfortunately it's not.
I understand what you are saying and I realise that it must be a horrible experience and potentially life changing but wrong is wrong anyway you slice it!
I am incredibly careful when I meet someone and go home with them, in fact I genrally don't try anything on through fear that I could be accused. This is not because I would in anyway attempt anything of the sort, it is because I know how detatched from reality men and women can be if things don't go their way.
L.J, London, England
I fully support the position that anyone of any gender who is forced to have sex without consent is raped and the perpetrator should receive a suitable sentence, however, it is to much to expect the courts to protect people who get so drunk they have no idea what is happening from being held responsible for their actions.
If 2 people both meet in a nightclub and get so drunk they pass out after getting to a flat is it really fair to say in the morning that the girl was raped as she did not sign a consent form. If consent is given and the woman has second thoughts in the morning and then says she did not consent then who do you believe.
This crime is extremely serious and pandering to the stupidity of a few should not be allowed but much more support for those who did not contribute to their rape should get better help.
And yes this is a mans point of view but please remember that if you get blind drunk and into any trouble you should blame yourself first.
joseph Kellie, Edinburgh, Scotland
Knight you raise excellent issues.
The issue of men being raoed needs examination - but not so urgently as the very very high numbers of women who we know are being raped.
I totally agree that both accuser and accused shoukd have anonymity until conviction.
But I do not agree that a woman making false accusations should be harshly punished. In justice yes. But in practical terms no woman would then ever make an accvusation, out of fear of miscarriage of justice. It is terrrifying enough pursuing a rape case as it is so very few women try.
I understand that consent forms are indeed in use in the USA in big cities, together with blood test results to show a clean bill of health. Odd ast first sight, but if you marry you also have to have blood tests for the same reason.
It's like condoms, people get used to a bit of awkwardness in order to move into union safely.
Shan Morgain, Newport Wales, Wales UK
I do not want to appear to trivialize this very serious issue but if a women has sex with a man who has had too much to drink and may not have been in a fit state to consent is this rape? Or does this only apply to women.
Also if a person in is accused of rape they should have anonymity until they are convicted and any woman found to deliberately making a false rape claim should be sentenced to as long as the man would have got for the rape
So guyâs may I suggest you take five minutes on a computer and make a consent form for a night out and if she canât write her name or remember it walk away
Knight, aberdeen, uk