UK: Men must prove a woman said 'Yes' under tough new rape rules

speedboatchase

Guilty till proven innocent? Brave new world in the UK.

http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html

Men must prove a woman said 'Yes' under tough new rape rules
New guidance will be issued to all police forces and prosecutors as part of a 'toolkit' to move rape investigations into the 21st century

Men accused of date rape will need to convince police that a woman consented to sex as part of a major change in the way sex offences are investigated.
The Director of Public Prosecutions said it was time for the legal system to move beyond the concept of “no means no” to recognise situations where women may have been unable to give consent.
Alison Saunders said rape victims should no longer be “blamed” by society if they are too drunk to consent to sex, or if they simply freeze and say nothing because they are terrified of their attacker.
Instead, police and prosecutors must now put a greater onus on rape suspects to demonstrate how the complainant had consented “with full capacity and freedom to do so”.
Campaigners described the move as “a huge step forward” in ensuring fewer rapists escape justice.
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New guidance will be issued to all police forces and prosecutors as part of a “toolkit” to move rape investigations into the 21st century.
Mrs Saunders said: “For too long society has blamed rape victims for confusing the issue of consent - by drinking or dressing provocatively for example - but it is not they who are confused, it is society itself and we must challenge that.
“Consent to sexual activity is not a grey area - in law it is clearly defined and must be given fully and freely.
“It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink.
“These tools take us well beyond the old saying 'no means no' - it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism.
“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
Mrs Saunders, who was speaking at the first National Crown Prosecution Service/Police Conference on Rape Investigations and Prosecutions in London, said the guidance should not only cover situations where someone is incapacitated through drink or drugs, but also where “a suspect held a position of power over the potential victim - as a teacher, an employer, a doctor or a fellow gang member”.
The ability to consent to sex should also be questioned where the complainant has mental health problems, learning difficulties or was asleep or unconscious at the time of the alleged attack, she said.
The new guidance also covers domestic violence situations and those where “the complainant may be financially or otherwise dependent on their alleged rapist”.
Around 85,000 women per year are victims of rape in the UK, of whom 90 per cent know the perpetrator.
The most recent figures showed that just 15,670 women reported rapes to the police, often because they thought it would be impossible to prove the offence, or because they did not have any confidence in the police’s ability to help them, with only 1,070 convictions resulting from the 2,910 cases that got to court.
The rape conference was designed partly to address the long-standing gulf between rape allegations and convictions, as well as a variation between different forces in the way they deal with rape allegations.
Metropolitan Police Assistant Commissioner Martin Hewitt, the Association of Chief Police Officers lead on adult sex offences, said: “As report after report has shown, there is still far too much variation in the way that forces move a complaint of rape through the system.
“Reporting of sexual offences is up 22 per cent in the latest statistics because of increased confidence in our service and recording but we have further to go.
“We need to tackle the iconic issues of 'no further action' and, particularly, 'no crimes' head on and reduce inconsistencies in our processes so that we can send a clear and unequivocal message to victims about how they will be treated.”
Sarah Green, director of the End Violence Against Women Coalition, said: “Although we have a long way to go in securing justice for all survivors of rape, the new guidance is a huge step forward in that it will help ensure that juries are asked to look in detail at the behaviour of defendants as well as at that of the complainant.
“It makes clear that consent must be sought as well as given, and it spells out issues around power and vulnerability of some victims which police, prosecutors and ultimately juries should take into account.
“We believe that broader social attitudes are slowly changing as, for example, we better recognise that girls who are sexually exploited by older men do not ‘consent’ to their abuse, and that men in positions of power target and abuse vulnerable victims.”
“Better recognition of and more justice for these crimes will ultimately help increase the deterrent to commit them.”

ancapailldorcha

speedboatchase wrote: »

Guilty till proven innocent? Brave new world in the UK.

http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html“Better recognition of and more justice for these crimes will ultimately help increase the deterrent to commit them.”

What do you think, OP?

speedboatchase wrote: »

“Better recognition of and more justice for these crimes will ultimately help increase the deterrent to commit them.”

I'm not convinced by this. Generally, the counties with the harshest prison terms often have very high crime rates.

The only problem I have with this new legislation is that I'm not sure how one "proves" his partner consented. It does go on to say that the accused must convince police that consent was given. I'd like to think that experienced officers will have a good idea what to look for but even still, for a few guys I can see this causing damage to a small amount of innocent men.

speedboatchase

ancapailldorcha wrote: »

What do you think, OP?

I think that if someone drunk that is having sex is being "raped", then I (a man) have been "raped" countless times. Or that most one-night-stands could then be classified as "mutual rapes"? I really don't understand the idea that if someone drinks, any responsibility on their behalf should be absolved completely by law - we don't apply the same standard to people who drink and get behind the wheel, or who drink and physically assault someone.

Also, I just don't understand how someone can prove consent to police, unless (not a bad idea, here) some kind of consent app can be produced and considered legal evidence, where someone passes it to the other person before they do the deed?

Overall, this just seems like a dangerous precedent to set. I think a lot of people would be put off about going home with anyone if the person had touched a drop of drink.

Gits_bone

Awful.

Where does it say women have to prove he said yes?

ancapailldorcha

speedboatchase wrote: »

I think that if someone drunk that is having sex is being "raped", then I (a man) have been "raped" countless times. Or that most one-night-stands could then be classified as "mutual rapes"? I really don't understand the idea that if someone drinks, any responsibility on their behalf should be absolved completely by law - we don't apply the same standard to people who drink and get behind the wheel, or who drink and physically assault someone.

Also, I just don't understand how someone can prove consent to police, unless (not a bad idea, here) some kind of consent app can be produced and considered legal evidence, where someone passes it to the other person before they do the deed?

Overall, this just seems like a dangerous precedent to set. I think a lot of people would be put off about going home with anyone if the person had touched a drop of drink.

It's targeted at date rape specifically rather than people being drunk in general. The Telegraph is unlikely to give a clear impression of this given the opportunity for sensationalism. I've not seen it reported anywhere else but there's still time.

blinding

Its getting to the stage where you will have to have a jury and your solicitor there when you have sex with a woman.

They will have to be sober and taking notes and definitely not taking part.

It might be just better to lock up all men and let women come to the prison to have sex with them when they feel like it !

Wibbs

I dunno, nothing has changed in the law, the crime still has to be proven. A reply to this on the same subject in After Hours sums it up for me:

conorh91 wrote: »

Most misleading headline in ages.

No new legislation is planned. The DPP for England and Wales is simply circulating new guidance for prosecutors, asking these lawyers to try to prove lack of consent in a more rigorous way.

Neither the English nor Irish DPP has the authority to enact new laws or to flip the burden of proof to an accused person. The golden thread remains intact: the Prosecution must prove everything, the Defence need prove nothing.

It's just the Telegraph exaggerating its stories to give its readers the only bit of excitement many of them ever get.

TL;DR: no changes to the law, no changes to the presumption of innocence, just the DPP asking lawyers to work harder to prove that the alleged victim did not consent.

As C points out this is the Telegraph, the Daily Mail with bigger words. Though I would still have some concerns re accusations after "regret sex" that wasn't close to a sexual assault.

ancapailldorcha

Wibbs wrote: »

As C points out this is the Telegraph, the Daily Mail with bigger words. Though I would still have some concerns re accusations after "regret sex" that wasn't close to a sexual assault.

It's too early to be discussing stuff like this. I didn't read this critically at all.

Also, "Daily Mail with bigger words". Apt description.

MrPudding

Wibbs wrote: »

I dunno, nothing has changed in the law, the crime still has to be proven. A reply to this on the same subject in After Hours sums it up for me:

As C points out this is the Telegraph, the Daily Mail with bigger words. Though I would still have some concerns re accusations after "regret sex" that wasn't close to a sexual assault.

This is the bit of the legislation that is causing the problem:

Sexual Offences Act 2003, Section 75 wrote:

Evidential presumptions about consent

(1)If in proceedings for an offence to which this section applies it is proved—

(a)that the defendant did the relevant act,

(b)that any of the circumstances specified in subsection (2) existed, and

(c)that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2)The circumstances are that—

(a)any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;

(b)any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

(c)the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;

(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;

(e)because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

(f)any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

That is the legislation as it was drafted over a decade ago. This isn’t a reversal of the burden of proof anymore than asking a suspect in any other crime for an alibi. Section 2 gives a list of circumstance where there is an evidential assumption that the woman has not consented to sex and, further, the man did not reasonably believe she had consented.

These are the areas that police interviews and cross-examination during the trial will try to address. The prosecution will still have to prove the man is guilty, and one of the ways they will do this is by showing evidence, perhaps that one of the conditions from section 2 applied, or in cross examination establishing that the man did not reasonable believe he had consent.

To give an example… A guy is at a party and meets an extremely drunk woman. She can hardly stand. He asks her if she wants to get out of here, she mumbles something unintelligible. He takes her outside, and she promptly vomits. He gets her home and lays her on the couch. She is pretty much comatose. He strips her and has sex with her. So, in that scenario, do any of the circumstances from section 2 apply? If any of them do, did he know that they did? And finally, could he have reasonably believed her to have consented to him having sex with her?

Regret sex is a tricky one. This is not designed to prosecute men for having sex that women regret the next morning, it is for prosecuting men that have raped someone, and that includes where the man has had sex with someone that was incapable of positively giving consent, and he could not have reasonably believed that there was consent. Legislation in this area is never, ever, going to be perfect, and it gets harder when both parties are drunk.

MrP

iptba

(Feb 6)

Sign CONSENT FORM before sex with strangers urges top Mr Loophole lawyer

Nick Freeman, known as 'Mr Loophole', says if they get lucky they must have the signing of the form witnessed by a sober friend

http://www.mirror.co.uk/news/uk-news/sign-consent-form-before-sex-5116770

However, it doesn't guarantee anything as people are free to change their minds.

DavidRamsay99

The accused should be innocent until proven guilty.
The prosecution has to prove guilt beyond all reasonable doubt.
The accused does not have to say or do anything.
If there is reasonable doubt you cannot convict.
Once you depart from that basic concept the whole system of justice is rendered a joke.
There must be evidence of rape and if there is none that's the end of it.

Jon Stark

I've never got involved with a drunk woman or even bothered to go actively seeking a ONS as you just don't know what you're going to be waking up to in the morning.

It's simply not for me. That being said, I do think the UK have opened a can of worms here. Genuine question here but how can one demonstrate that they received consent? What's the measuring tool?

I'd be concerned that people may be wrongly charged simply because of an inability to sell a convincing argument i.e. the person could be of a nervous disposition and thus come across as guilty. I'd also be concerned that it would give the police more leverage to make a judgement and charge someone without necessarily having any reasonable proof.

DavidRamsay99

Jon Stark wrote: »

I've never got involved with a drunk woman or even bothered to go actively seeking a ONS as you just don't know what you're going to be waking up to in the morning.

It's simply not for me. That being said, I do think the UK have opened a can of worms here. Genuine question here but how can one demonstrate that they received consent? What's the measuring tool?

I'd be concerned that people may be wrongly charged simply because of an inability to sell a convincing argument i.e. the person could be of a nervous disposition and thus come across as guilty. I'd also be concerned that it would give the police more leverage to make a judgement and charge someone without necessarily having any reasonable proof.

I think what this is really about is an attempt to create neo-Victorian values to row back the Sexual Revolution.
That sex outside of a relationship is somehow wrong and that the only way a woman would agree to sex with no strings is if she is somehow fooled or else drugged. Women are supposedly incapable of having one night stands that they wanted. Men who seek sex without strings and take advantage of supposedly emotionally vulnerable women are considered rapists.

Indeed some ultra hardcore feminists think ALL sex is rape because the woman is penetrated by the penis in an act of violence. I kid you not. Just read some the psychotically deranged rantings of some feminist bloggers.

What this claptrap does is try to prevent normal happy interactions between the sexes which frigid insecure freaks have always sought to criminalize and destroy throughout history through the use of religion or today through ideology.

Some women seduced by this ideological garbage who find nature taking its course when they meet a sexually attractive stranger who takes them to bed willingly are terrified of being seen as a dupe. Hence the fake rape allegations. They feel guilty about their sexual behavior that breaks socially constructed taboos and accuse men of rape to cover up their embarrassment and self-loathing.

REAL rapes that SHOULD be investigated and prosecuted become lost in the blizzard of bogus claims of sexually and emotionally immature idiots.

Pat Mustard

Perhaps we should change the thread title to:
"Incorrectly worded newspaper article causes Britons to splutter into their coffee cups."

iptba

A UK report's proposal
(June 2 article)

Courts 'should assume women can't consent to sex when drunk': Rape report's controversial proposal

Dame Elish Angiolini calls for change to consent law to cover intoxication
Blood tests would establish if woman was too drunk to consent to sex
Positive result would likely make it impossible for man to plead innocence

By Arthur Martin

http://www.dailymail.co.uk/news/article-3108406/Courts-assume-women-t-consent-sex-drunk-Rape-report-s-controversial-proposal.html