Laura Perrins: Rape law turned on its head. Suspects will have to prove their innocence 

It was only a matter of time before the law of rape was turned upside down. On Thursday The Daily Telegraph headline proclaimed, “Men must prove a woman said, “Yes” under tough new rape rules.”

This would be quite a change – throwing centuries of common law on the pyre in reversing the burden of proof that “no matter what the charge or where the trial the principle that the Crown must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.  This is the one golden thread that runs through English criminal law.

So for Alison Saunders, the Director of Public Prosecutions, unilaterally to change this would be a breach of her powers, to say the least.

However no such change is proposed – merely a subtle ‘rebalancing’ at investigation stage. Prosecutors and police officers are now to ask the defendant, ‘How did the suspect know the complainant was saying yes and doing so freely and knowingly’.

I doubt this is going to take them very far should the defendant – as is his right – refuse to respond. Any person accused of a crime is entitled to remain silent and answer no questions whatsoever to the police. Surely, this is not lost on Ms Saunders.

However, on close examination what Ms Saunders is proposing is quite Victorian. Men are once again, guardians of female virtue and it is they who must make sure the consent given is ‘free and knowing’. If the woman is too drunk to consent or seems to drunk to consent, it is the man who must exercise his better judgment and desist from any further ‘relations’. It is something straight out of a Jane Austen novel.

As a social conservative this return to the Victorian regime does not really bother me. Nor does it surprise me. The cold black and white of the law is unable to deal with the many cases of “date rape” driven by alcohol currently swamping the criminal justice system.

As a lawyer, however, I do have a problem with it. This change means there will be a different test at investigation stage to that administered by the jury at trial. At investigation stage, the defendant is asked how he knew the woman consented, implying the burden is on him to prove his innocence. But at trial, the jury will be directed that it is the Crown that must make them sure that the defendant did not reasonably believe there was consent. The defendant does not have to prove anything.

This gulf can only end in tears. It could result in allegations of rape being charged and brought to trial where there is no realistic prospect of conviction (the test that the DPP must apply). As such, victims of rape are being set up to give evidence in weak cases and will face challenging cross-examination from the defendant, as is his right. Should this happen Ms Saunders only has herself to blame.

Laura Perrins

  • Earthenware

    If the change only effectively amounts to the Police asking “how do you know that she consented” then I assume that this is something that the Police already ask and that nothing has changed.

    However, with the Modern Tories’ track record, we must assume the worst. I suspect that this is going to find its way into the Courts in some manner, probably starting with the issue being raised by the Prosecution and included by the Judge in the summing-up. If there are no howls of protest in the media it will probably become more formalised over time.

    This is clearly a sop to the militant pressure groups who now drive Government policy. Every time one of these small changes is made in order for a minister to avoid troublesome accusations from extremists, we lose a little freedom.

  • Mr_Twister

    “Suspects will have to prove innocence”
    Ched Evans tried (and to many, DID) Laura, but you weren’t having it!
    Other than that piece I enjoy/agree with most of your writings, including this one.

    • Cynical Ex Academic

      Agreed. Evans was convicted by an application of the Alison Saunders principle.

  • Tony_E

    I heard one piece of advice given both by a lawyer and a policeman that has stayed with me ever since: Never speak to a policeman under caution or otherwise. Not even to defend yourself.

    Now that seems a strange piece of advice, but really it isn’t. The burden of proof is on the prosecutor, not the defendant. The only thing you can do, even if you are innocent, is to make the prosecution’s job easier if you speak.

    As a defendant in any case now, I would always say absolutely NOTHING to anyone in authority.

    • MrVeryAngry

      Indeed. My first brush with the law when I was about 18 got me in court for a motoring offence of which I was innocent. The policeman lied in Court. Lied through his teeth. It changed my view of the police forever. I had previously viewed them as friendly people in uniform to protect us from crime.
      Spool forwards about 43 years and last month another police(woman) lied to me in my own car-park.
      This is all so sad. What happened to Peel’s Principles and honesty?

    • MrsDBliss

      I used to be a policewoman. Innocent people always speak to defend themselves, dodgy people always use the right to silence. You weren’t meant to give advice either away about getting a solicitor. However, on Saturday night duty when there were always nutters that provoked mainly good people who then wanted to explain to you why they got themselves into a mess, I used to do so. I started to say ‘don’t tell me. I know why you’re doing it, but wait until you have a solicitor.’
      As they were the type not normally the type to do whatever offence they were involved in they would always carrying on trying to explain. I had to make it really clear, get a solicitor and shut up!

      • Diotima

        “Innocent people always speak to defend themselves”

        It is the natural reflex, but not always wise.

        “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” Cardinal Richelieu (1585 – 1642)

  • So pleased to see this point addressed by a blog aimed at women. It was beginning to seem as though anything goes where feminism is concerned.

    Whatever happened to the presumption of innocence? Done away with, for the prosecutors’ convenience. Along with habeas corpus, trial by jury, the right to legal representation, the right to tribunal and much else.

    One has to wonder whether it hasn’t crossed the minds of various DPP’s that their job could be terribly easy if you just operated on the assumption that everybody is guilty until proven innocent. Think what the conviction rates would be like in that case!

    Why am I voting UKIP? Because I increasingly can’t recognise the country that I grew up in, and the civil liberties that we all took for granted thirty years ago, and I fear for the society that my children will have to live in, and none of the mainstream parties seem to think any of this is a problem.

    But I won’t have them suggesting that I’m just too lazy and apathetic to vote. So I’ll vote. I’ll vote for the “screw the lot of you” party.

    • Alex Cockell

      Try an even more insane take – Jaclyn Friedman bangs on about consent being a “felt state”….
      To a virginal autistic bloke like myself – I can’t get my head around that one.

  • Stuck-Record

    Well, thank heaven for modern mobile phones.

    Now every date or encounter with a woman must have a romantic, “Hold on. I have to get your videotaped consent recorded, timestamped, and uploaded to a secure server before we sexually touch.”

    How sweet.

  • Weygand

    The infantilising approach to women adopted by the DPP is demeaning and dangerous to women.
    But, in the circumstances, perhaps chemists start to supply written
    contracts with condoms so that men can be fully protected in sexual relations.
    Even then, would the woman’s signature be enough or would the DPP demand that a responsible person (a male member of the family perhaps) countersign to confirm her informed consent had been freely given? Or insist on a 6 day cooling off period?

  • ablanche

    A key point here is that even the advocates of this terrible policy like the dimwit PC DPP admit it is predicated on addressing a perceived problem with conviction rates: ie the interpretation of the criminal law in an area fraught with the possibility for grave miscarriages of justice (for both accuser and accused) is being determined by a need to “improve” the statistics on conviction by making the crimes more difficult to defend. It is deeply shocking that senior law officers should be complicit in such a betrayal of fundamental legal principles.

    Also insofar as there is a “rape crisis” in this country shouldn’t its focus more properly be on the utter failure of the authorities to protect the victims and to bring to justice the perpetrators of what appears to be an epidemic of rape and sexual exploitation with an apparent religious and racial element in the relatively deprived communities of urban areas?

  • Justice has always been blind. Twisting her neck 180 degrees may just finish her off.

  • Trojan

    On the one hand we move in a direction where at the investigation stage the scales are weighted against the male defendant. But on the other hand we move towards shariah where the scales are weighted against the female victim. Something has to give

    • Rob

      “But on the other hand we move towards shariah where the scales are weighted against the female victim.”

      i don’t know what sharia/Shari’ah you have been reading up n or indeed watching( perhaps some shock documentarty), but women don’t get it as hard as many complain as sharia court are now bending over backwards to accomodate women to ward off accustations of bias against women.

      try a sharia family court to see how well women are treated, in fact they have become more biased than the Uk courts when it comes to issues of custody and divorce.

  • ButcombeMan

    You do not have to say anything. But it may harm your defence if you do
    not mention when questioned something which you later rely on in court.
    Anything you do say may be given in evidence.’

    • Matthew Thomas

      out of interest in what way may it harm your defence ?

      I’ve always heard the advice to never say anything at all to the police, even if you are innocent.

      • ButcombeMan

        What I have posted is the most recent updated version of the Caution. It would need a lawyer to explain it reliably but I think it allows the Judge to comment adversely to a Jury as something they might take into account about a “sprung” & sudden defence, which ought (reasonably) to have been mentioned earlier and which, because it has not been mentioned earlier, has not been tested by those investigating.

        • Laura Perrins

          Yes this is true. I did not put it in as it would make the blog too long. But in reality if a def acquits himself well in evidence an adverse interest often is not made by the jury esp if he says we was advised to go no comment by his solicitor.

      • woohoo02

        Good Advice, and you are right, even if you are innocent, any untruths said inadvertently under Caution, makes everything you say questionable.

  • Yogi

    As a man I can say without fear of contradiction that having sex whilst “drunk” is no fun at all. If not completely sober, then at least little light headed from a nice glass of Rioja is probably optimal.

    On the legal aspect it’s only of concern if it’s the thin end of the wedge. The presumption of innocence is fundamental. If it’s inverted inside the courtroom as well as purely during an investigation, then it’s very worrying indeed. Even where the transaction is explicit – that between a man and an escort or prostitute – politicians have spoken of criminalising the man alone. Everywhere the presumption is that women are victims and men are exploiting them.

    Returning to the UK in 50 years time (in my Tardis) will I discover that a man’s evidence in court is worth half that of a woman’s? Where will this end I wonder.

    • Diotima

      “As a man I can say without fear of contradiction that having sex whilst “drunk” is no fun at all.”

      Gonna contradict you on that one. Would never have first time drunken sex – too risky, but sex is almost always fun. Met lots of women who love to seriously party in all possible ways at the same time, but best to know her well. You need more practice, that’s all. lol

  • fubar_saunders

    … and they wonder why things like MGTOW are gaining traction…..

  • therealguyfaux

    Rolling Stone. University of Virginia. “Fake But Accurate.” “Even if there was an injustice in the accusation it was important that the issue be raised.” This debate has been well-covered on the other side of the water.

    Not expecting that every reader will understand this reference, let me simply say “Mike Nifong” and provide the link– this is what can happen when the Crown will overreach:
    http://en.wikipedia.org/wiki/Mike_Nifong
    It will not do to say that Nifong, being an ELECTED prosecutor and possibly having further ambitions, could be held up as being an “American Aberration.” ALL crass appeasers of the howling mob, be they elected, appointed or career-track, are capable of such travesties of justice, and it was only back in the 1930’s that the Americans had seen the Scottsboro case, the racial flip-side of the Duke case, being brought.

  • woohoo02

    Final push to harmonise the UK/EU legal system, and what more publicly acceptable way of doing it than using Rape as the catalyst.
    Back to the stone age we go!

  • Diotima

    I wonder if in time it will only be safe to have sexual relations if the parties have drawn up a legal document giving precise details of what has been agreed; under guidance of their respective legal representative, of course. E.g.

    ‘1. Ms B agrees to Mr A running his hand up her leg, but not so gently it tickles and makes her laugh, but not so fast she finds it alarming. Furthermore, he must pause 6 inches before her panties and caress for at least 3 minutes before proceeding any further, unless she makes it clear she can no longer wait.

    2. Ms B agrees to Mr A’s request for her to wear those stockings he said he likes so much.’

    etc.

    Perhaps the lawyers would need be present during the act as well to check for any breaches and resolve any disputes, lol.

    • Loosehead

      …unless she makes it clear “in writing” she can no longer wait… A verbal contract is not worth the paper its printed on, and that’s the root cause of all this.

    • Re a legal agreement- one is already required in the US which requires a blood test before marriage. Full sexual consent, is consent , it doesn’t need details. I expect a free to download form to appear on line, inside contraception packets etc. Two names and signatures along with their own place and date of birth, two copies. Shouldn’t need a soliciter, any more than a personal will and testiment. Anybody blind drunk wouldn’t be able to think/write properly

  • AJ

    This does not change the law but is still very worrying.

    Whenever a rape accusation is made the accused and accuser should both be treated with respect. Consent or it’s absence is the essence so both parties should be questioned on this. However at the end of the day the focus must be on whether a lack of consent can be proven to do less is to apply a sexist discriminatory standard against men with potentially devastating consequences.

    The case of Ched Evans suggest that whatever the law may say men are at risk even if they can prove beyond reasonable doubt that consent was given. In this case there were two witnesses of good character to consent, none that consent was not given and two peices of corroborating evidence that backed up at least some of the witnessses story. The only evidence that suggested anyone was lying was the scientific evidence that contradicted some of the alleged victims account. The ‘vicitm’ herself never claimed she was raped. Quite amazing that a conviction is possible in this situation or even that a prosecution was brought. Terrifying actually.

    • Loosehead

      Assuming the suspect refuses to answer the above question, will that fact be brought up in court?

  • Laura Perrins

    That was the previous one – Keir Starmer now fast tracked to stand for Labour.

  • Trojan

    I guess I lost contact with the real world when I tried and failed to persuade the authorities to release one of my students who had been locked up by the family into which she had been brought into via an arranged marriage. She was a bright university student, who had been admitted to university prior to the marriage.The family had other ideas. I was told that there had been so many similar failed attempts with others that it was not worth the effort. However, they did not lock me up in one of their prisons as I was a Man.

  • Loosehead

    What if the cheque bounces? We need a post-clearing consent form too.

  • I don’t think it’s a question of being just as good as men, because the sexes are different, we think differently, men are often physically bigger and stronger, women better at communication, intuitive. It’s more a question of being ‘treated’ equally under the law and by society in terms of fairness, freedom and opportunity. With equal fairness there isn’t the need to defend other than against brutality and violence, which may also be needed by older men, the disabled and male children. We must all be protected against brutality and violence. Adult men are also assaulted and raped. Requiring formal consent may become no more than using contraception, (maybe that should also be agreed in writing too, to help resolve the unwanted prograncy and dubious father situation). As to the impact on passion, love will wait, only lust cannot.

  • AKM

    “I can’t blame the police. Political pressure works its way down the system until it hits the local level, and they are the ones who must deliver the results.”

    Actually you can blame the Police. They are breaking rule 5 of Peel’s nine principles at the very least:

    “To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.”

    • Diotima

      I agree from a moral point of view. However, it is sensible to help people to act rightly. If they are encouraged to act wrongly, many will succumb. Plato said it is almost impossible for a man to be virtuous in a corrupt society. Almost all will be overwhelmed and give into corruption themselves because that is the best means of survival. Those who don’t are going to need exceptional qualities and will be very rare, and will often pay a heavy price for their principles. If you incentivise bad behaviour, you should not be surprised if you get bad behaviour because although people try to be moral, they also tend to be practical.

      The police officers who were trying to stitch me up were merely responding to pressure from hypocrites who they knew very well were not particularly concerned with ways and means. This can be understood without being said.

  • Diotima

    “Liberty has many enemies, few as determined as the extreme feminists and they see it as part of their revolution so they will keep attacking decade after decade.”

    Alison Saunders, who has pushed through this change was appointed as DPP by the Attorney General, Dominic Grieve, MP, who was in turn appointed by David Cameron. The DPP is answerable to the Attorney General and the Attorney General is answerable to Parliament.

    This shift from ‘innocent until proven guilty’ to ‘guilty until proven innocent’ in the specific case of men accused of rape is ultimately something our elected representatives have allowed. It is not the extreme feminists who worry me because I know they have no respect for the legal rights of men, but when a Conservative Prime Minister and Parliament wave this through we’ve really got a problem! I know very well that Cameron has tried to rid the Conservatives of the ‘nasty party’ image by appealing to social liberals, but his willingness to throw away fundamental legal protections in order to appease a vocal section of this constituency is horrifying!

    Alison Saunders has promised to increase the number of prosecutions for rape by 33% in 2015. The nature of the cases will not change, but the criteria for bringing cases to court will change.

    There is history to all of this.

    Past political pressure on the police to reduce crime rates and improve clear-up rates, especially for rape, meant there was an incentive for them to ‘no crime’ cases where there was insufficient evidence to proceed to court, i.e. instead of recording them as ‘unsolved’ crimes, they instead found ways of recording as many as possible as ‘no crime committed.’ That ‘helped’ police crime statistics.

    There were various ways they did this, which were described by witnesses to a Parliamentary Select Committee in 2013: –

    http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/4041

    In addition to incentives for the police institutionally, there were career incentives for individual police officers to engage in these practices. The result was that some rape allegations that had been reported became ‘unreported.’ However, this was merely a consequence of the effort to manipulate statistics.

    Procedures have been changed to make it much more difficult for the police to do this, which is one of the reasons ‘reported sexual assaults’ shot up last year. There are not more assaults – the police are merely recording them correctly.

    However, the cases that were previously ‘dropping off the books’, as it were, were all lousy cases with little or no chance of a conviction. Alison Saunders knows this very well, but has changed CPS criteria in order to bring such cases to court anyway. Apart from more accused men having to go through the shame and stress of a rape trial simply on the word of an accuser, the result will be a fall in conviction rates because they will still be bad cases. In order to address this, the next step will be to put pressure on the courts to give more weight to the word of the accuser. You see as far as Alison Saunders is concerned, if a woman accuses a man of rape he’s probably guilty anyway, and she intends to make him pay.

    The other thing to be expected, of course, is an increase in false allegations because every aggrieved and unscrupulous woman will come to know that even if she can’t put the man who has upset her into prison, she can at the very least put him through the trauma of a rape trial.

    The problem is not the extreme feminists – it is women like Alison Saunders in positions of power who broadly share the same views as them. It is also the cowardice of our politicians in the face of such an attack on our rights. If the electorate tolerate it we are lost.