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Andrew Tettenborn: Leave the doors open and unlocked and you might get raped

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A quick thought experiment for you. Imagine the Government announces a new approach to the problem of theft. You have, you are told, a fundamental right not to be burgled, even if you left your front door open and the silver visible; and an equal right to find your Maserati in one piece where you left it, even if you parked it overnight in Middlesbrough unlocked and with the keys in the ignition.

Suggesting you might do better to lock the door and garage your car is, you are confidently informed, demeaning and outdated, and tantamount to victim-blaming. Just tell us who you think stole your stuff, continues the man from Whitehall, and we’ll make very sure they get convicted even if some clever lawyer makes it clear they very possibly didn’t do it. A caricature? Of course. What’s worrying is that our approach to rape and sex assaults is beginning to have very unhealthy affinities with it.

In 2012, against a stereotypical background of boredom, alcohol and testosterone, football international Ched Evans was convicted of raping a drunk 19-year-old. Last year he was cleared at a retrial, where after meticulous discussion of our strict laws about introducing evidence of a complainant’s sex-life, other partners of the victim gave evidence that (avoiding the sordid details) strongly suggested she had been far from the passive dupe the prosecution alleged.

Relief all round at justice to a probably innocent, if cocky and stupid, man? Well, actually no. Activists protested bitterly. Vera Baird QC, Labour activist, ex-Solicitor-General and now Northumbria police commissioner, railed that this would simply encourage robust argument by defence lawyers, increase the trauma to complainants and perpetuate outdated attitudes. Did that mean they would actually have preferred a remarkably doubtful conviction to stand? Of course, they didn’t say so, but no doubt readers can be left to draw their own conclusions.

Nor is this all. On Wednesday, hyperactive Plaid Cymru MP Liz Saville Roberts introduced a 10-minute rule Bill – with the support of Voices4Victims who cited, guess who, Vera Baird – to exclude entirely evidence of a victim’s sex-life in rape trials except where the judge was convinced that it would be contrary to the interests of justice not to admit such matters. Why this should be needed is puzzling. Ms Roberts referred in Parliament to the need to exclude irrelevant sexual history: but that has always been inadmissible anyway, in which case her Bill is unnecessary. If, on the other hand, the aim is to encourage complainants to come forward by assuring them that they will not face unpleasant questions even if a jury might consider the answers relevant, it is pernicious. One is left with the suspicion that one aim of this Bill is, ever so quietly, to raise the statistics of rape and assault convictions, even if at the cost of the occasional conviction of someone who was very possibly innocent.

Meanwhile, any suggestion that women and girls might be advised to take responsibility to protect themselves is immediately shouted down (as happened to journalist Angela Epstein last month). This is unacceptable on two levels.

For one thing, it is ignorant and uncomprehending. No-one who advises precautions is justifying or condoning rape, an absolutely appalling crime, or suggesting that a rapist is somehow less guilty where the victim put themselves in a vulnerable position, any more than we say a burglar is less guilty because the householder left a window open. What such people are doing is repeating an obvious truth: while we live in an imperfect world the only humane advice we can give anyone is that they should take sensible precautions against what is imperfect about it, and that they cannot rely on others to protect them all the time.

More to the point, the view that one must never suggest the victim might be to blame, even if they drink heavily or act highly provocatively in front of men whose own self-control is clearly impaired, is actually about as demeaning to women as one can get. It implies that if a girl is addicted to binge drinking, one-night stands and loveless coupling, either she is incapable of anything better, or alternatively she deserves that we leave her where she is, rather than try to lift her out of a lifestyle likely to be increasingly empty and unfulfilling.

It’s not clear which of these is more insulting, but it’s a close run thing. And as for telling her that so long as she retains that lifestyle this is just her choice, which deserves to be respected, that anything that goes wrong is someone else’s fault, and that she can expect the rest of us to pick up the pieces, three words fit the bill. It is patronising; it is untrue; and it is immoral.

(Image: Håkan Dahlström)
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Andrew Tettenbornhttps://www.conservativewoman.co.uk
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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