Laws matter; politicians don’t


6:20 pm - November 24th 2009

by John B    


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IT news site The Register has spotted the first person ever to be sent to jail for refusing to give the police the keys to their encrypted files under the Regulation of Investigatory Powers Act.

Unsurprisingly, he’s not an extremist or a terrorist or any kind (neither white supremacist nor Islamist fundamentalist) – he’s just mentally ill with an odd relationship with society:

With a deep-seated wariness of authorities, he did not trust his interviewers. He also claims a belief in the right to silence – a belief which would later allow him to be prosecuted under RIPA Part III.

RIPA was sold to the public as a law that would protect us from terrorist threats, organised crime and evil paedos, by preventing them from using evil Bond-villain-y encryption to cover their nefarious tracks. The media, being craven, lapped this up: c’mon, who’s going to stick their neck out for Osama Bin Laden and Gary Glitter?

However, the actual legislation said absolutely nothing about terrorists, organised criminals, or paedophiles. Being legislation, it simply said that people who committed certain acts would be breaking the law and would be eligible for certain punishments.

This is a point I touched on here last year, when there was a nonsensical fuss about ‘anti-terror legislation’ being used against Iceland. Again, the legislation that was used against Iceland, although sold as essential to combat the likes of Mr Bin Laden, made absolutely no mention to terrorism – it was targetted against anything that posed a threat to the UK.

Why does any of this matter? Simply because, among well-meaning people on all sides, there’s a strong tempation to back laws that seem sensible and sound like they’d have nice outcomes even though the actual effect is far worse… so as we saw last week, the combination of strict liability for possession of certain illegal weapons plus minimum sentencing can create ridiculous results, despite the fact that locking up people who carry guns for five years is generally fair enough.

Or, perhaps more directly relevant to left-leaning discussions: nobody aside from the truly vile could oppose locking up more rapists – but when people start to suggest that a good way to do this would be by reversing the burden of proof in criminal cases, that rapidly takes us somewhere very unpleasant indeed.

In a similar vein, violent rape pornography is pretty revolting, and people who use it are best avoided – but the letter of the law banning it makes it legal to jail BDSM couples (who aren’t crossing the line into GBH) for photographing themselves in completely consensual and legal activities. The government assured queer communities at the time that they wouldn’t be targeted – but that’s not what the law says, and if the police and CPS fancied a clampdown at any time then they’d be perfectly entitled to do so.

What ties this all together?

Well, remember that what politicians say is irrelevant: what matters is what the laws they pass say.

…aand if a politician reassures you that the laws they’re passing would never be used against someone like you (or your autistic child, or your kinky friend), or something that you don’t disapprove of, then they’re either lying to you or they don’t understand their own job.

…and if that’s the case for a particular politician or party, you probably shouldn’t vote for them.

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About the author
John Band is a journalist, editor and market analyst, depending on who's asking and how much they're paying. He's also been a content director at a publishing company and a strategy consultant. He is a regular contributor to Liberal Conspiracy and also blogs at Banditry.
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Reader comments


Well, remember that what politicians say is irrelevant: what matters is what the laws they pass say.

Well, you’re half right: it does matter what the law says, but what politicians say is relevant because that’s how the laws are passed…

For example,

This is a point I touched on here last year, when there was a nonsensical fuss about ‘anti-terror legislation’ being used against Iceland. Again, the legislation that was used against Iceland, although sold as essential to combat the likes of Mr Bin Laden, made absolutely no mention to terrorism – it was targetted against anything that posed a threat to the UK.

And as I responded to you last year,

It was Blunkett who first used the word terrorist in relation to the freezing measures in Part II of the ATCSA, seven years ago (took only two weeks to get through Parliament, three days debate in the Commons).

[October 2001] With permission, Mr. Speaker, I wish to make a statement on the legislative steps necessary to counter the threat from international terrorism. … we do need specific and targeted measures, which is why I intend to introduce an emergency anti-terrorism Bill. I am determined to strike a balance between respecting our fundamental civil liberties and ensuring that they are not exploited. … Terrorists use organised crime and trade in human misery to finance their activities. The tough new financial controls in the emergency Bill will help us to staunch the flow of terrorist funding.

The emergency legislation will build on the provisions of the Proceeds of Crime Bill to deal specifically with terrorist finance through monitoring and freezing the accounts of suspected terrorists.

[November 2001] Parts I and II complement the Proceeds of Crime Bill in stopping organised terrorism and crime being perpetrated through money laundering by organised finance—a subject that my right hon. Friend the Chancellor of the Exchequer considered in Ottawa. We are seeking the ability to freeze assets …

The Government contends that the ATCSA contains many provisions and they rightly say they are not all about terrorism (indeed there is no mention of terorrism in Part II of the Act). But that was not what Parliament was led to believe about Part II.

We need better drafting, we need better scrutiny – Labour has not improved either of these over the past eleven years.

JohnB:

…aand if a politician reassures you that the laws they’re passing would never be used against someone like you (or your autistic child, or your kinky friend), or something that you don’t disapprove of, then they’re either lying to you or they don’t understand their own job.

That’s similar to the argument ‘what if a really bad government got hold of these laws…?’ while ignoring the government that’s actually passing them.

I kind of thought that was John B’s point, we can rest on our laurels and take them at their word, or we can take them at the word of the law.

This is why I and others made such a fuss about data sharing orders in the Coroners and Justice bill because no matter how much they said it wasn’t going to be abused, and how ever many liberal bashers claimed that no-one would use the law in the way we were suggesting… it didn’t change the fact that if the law had been included it COULD have been used that way.

Of course John is preaching to the converted here, but it is one of the biggest things that needs getting through to people about modern legislation creation…watch what the magician is doing, not the assistant.

For once a LC article that I agree with word for word. (and I am not in the slightest left leaning).

The only way you can ensure a law will not be misused is not to pass it in the first place.

The next best thing is tightly framed laws possibly time limited, passed only after lengthy scrutiny by an independent minded house. But it is a poor second best, and only to be used after much consideration.

>>if the police and CPS fancied a clampdown at any time then they’d be perfectly entitled to do so.

So surely what also matters is how the police, CPS and judges decide to interpret and apply the law.

‘Well, remember that what politicians say is irrelevant: what matters is what the laws they pass say.’

Absolutely. It should be extremely difficult to pass a new law and it should be challenged at every stage by anyone who believes in liberty. The onus is on those who wish to restrict our liberties that there is an absolute need to restrict that liberty and that the law is the appropriate tool for doing so.

What politicians say in parliament can also be important as Hansard is now permitted as a resource on how legislation ought to be interpreted in courts. Of course, I doubt there was much room for interpretation in this case.

So I take John’s point on one level but say it is oversimplified on the other.

In the UK, we have acts and case law that define “general” criminal offences (theft, fraud, acts of violence, bad motoring, public disorder). These laws are about right, because new case law is remarkable. We’ve had years to work out the exceptions. The laws mostly go wrong when politicians meddle with sentencing policy rather than when modifying the definition of potential offence.

Other laws are introduced to address specific criminal offences (dangerous dogs, terrorism, technological crime). With many likely exceptions, they tend to be muddled acts that create further muddled case law. There’s a technological fix for this — “better drafting” — but like all technological fixes, it’ll only resolve a minority of exceptions and does not address the underlying problem.

The issue is “scope”. When bills are drafted to address specific criminal offences, they should contain a preface outlining how the proposed law is intended to be implemented. That preface would be a basis for case law in addition to mind reading by judges. Some laws might have a universal scope; others (eg those relating to terrorism) would have a narrower scope.

If, for example, I was an amateur firework maker (technically an offence, of which I was guilty many years ago), I might manufacture a device that was intended as a crowd pleaser but which functioned as a bomb. No doubt, I’d be prosecuted under a terrorism offence, even though not a single politician would have considered such a use. If those laws were out of scope, there would still be dozens more to use against me.

The RIPA is possibly a better example. If the scope of the act was limited to terrorism and organised crime — the circumstances discussed during its parliamentary passage — it could not be used to investigate petty offences.

John B: “and if a politician reassures you that the laws they’re passing would never be used against someone like you” They’d have to change the scope or change the judges.

Charlieman, sorry but I don’t see the net value in adding sections to what legislators clearly already find too time-consuming to properly scrutinise. If a law is drafted with the intention of dealing with specific offences, why on earth isn’t it made specific?

But Labour won’t go with either your suggestion or mine and they have a very convenient explanation as to why – again, look at the freezing orders:

Baroness Miller of Chilthorne Domer: In this House there was a little more scrutiny, and Members asked the Minister why there was no explicit reference to terrorism in the drafting of the clause. When she was so challenged, the Minister, the noble Baroness, Lady Symons of Vernham Dean, insisted that the reason why there was no direct mention of terrorism was that,

“it is not possible to separate out the matters in a practical sense because the other crimes are the source of revenue for terrorists”.

It’s bullshit of course – you could quite easily word Part II along these lines (the bold bit is what I added):

4Power to make order
(1)The Treasury may make a freezing order if the following two conditions are satisfied.
(2)The first condition is that the Treasury reasonably believe that—
(a)action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons suspected of involvement in terrorism, or
(b)action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons suspected of involvement in terrorism.
(3)If one person is believed to have taken or to be likely to take the action the second condition is that the person is—
(a)the government of a country or territory outside the United Kingdom, or
(b)a resident of a country or territory outside the United Kingdom.
(4)If two or more persons are believed to have taken or to be likely to take the action the second condition is that each of them falls within paragraph (a) or (b) of subsection (3); and different persons may fall within different paragraphs.

Or you could get rid of the bold bit and say there are three conditions, the first of which is that this is suspected of being related to terrorism, and then appropriately renumber 1 and 2 above.

If, for example, I was an amateur firework maker (technically an offence, of which I was guilty many years ago), I might manufacture a device that was intended as a crowd pleaser but which functioned as a bomb. No doubt, I’d be prosecuted under a terrorism offence, even though not a single politician would have considered such a use. If those laws were out of scope, there would still be dozens more to use against me.

No – you’d be charged under one of the Explosives Acts (1885, I think), which date back to the 19th century – another point in itself, in that a lot of these laws are about things that are already illegal.

Did you know that causing a nuclear explosion was made a criminal offence in 1998? Yet it was already an offence for over a century “to cause an explosion likely to endanger life or cause serious injury to property”.

Roger Smith of Justice:

Labour has been careless about process in the pursuit of desireable goals. … I think that carelessness with process runs through the government. … there’s been this notion running through criminal justice policy in particular for the Labour government that what matters is showing the public that you’re doing something rather than actually doing it.

Idiot troll….”For once a LC article that I agree with word for word. (and I am not in the slightest left leaning). ”

Talk about the bleeding obvious. If you don’t agree with most LC articles it stands to reason you are not left wing
.

But also, no one on here gives a flying toss what you think.

So surely what also matters is how the police, CPS and judges decide to interpret and apply the law.

And in fact, that is the pretty much only thing that matters – the actual contents of legislation have only the most marginal of effects on what they do.

You could probably prove that with science and statistics, but this is a blog post, so a quick anecdote about Hitler will have to do. Really bad governments don’t exploit loopholes in laws: they ignore laws, murder people and boast about it. Less bad governments act less severely, but still out of hatred, fear, impatience and misperceived necessity.

Trying to solve that problem by changing the law is like trying to solve an economic problem by changing the colour of your banknotes.

Good stuff Sally, scare off people we have common ground with as well as everyone else. *thumbs up*

Lee @3, I have no argument with that, and John’s main point bears repeating until people get it into their thick heads.

But the other point remains that there is ‘marketing’ going on, in terms of what politicians say to persuade us to accept this stuff, and people believe it (god knows why), and that is why what politicians say is important. With respect to John, I’m inclined to think he’s being imprecise here or, worse, too casual about it.

The thing is, a lot of people aren’t as sensible as you and John (and I mean that sincerely, because you both are), or they don’t spare the time (even if they are MPs) to properly scrutinise the legislation, or they do what their whips say, or they let the bad stuff through because they think there is good stuff in the bill and don’t want to reject the whole thing… or whatever.

Sometimes our representatives rightly complain they aren’t allowed enough time: ATCSA is 129 sections and 8 schedules long (a 122 page PDF); while the Criminal Justice Act 2003 has 339 sections, 38 schedules (a 476 page PDF); and that’s just what made it to the statute book, I haven’t looked at the original drafts plus amendments that were included or dropped.

Perhaps we need MPs to stand up and say, “actually, we haven’t been allowed enough time”, and gradually Bills would ‘evolve’ to be more tightly and properly drafted. We can but hope, eh?

Remember it’s MPs who vote on the timetabling of Bills in the Commons. Again, Labour Government not only drafting bad law but its MPs forcing it through.

P.S. I’m not saying any other party would be better, although I’m inclined to think the LibDems and Tories have rather more concern for proper procedure, which is very important (but not particularly exciting).

P.P.S. (and OT) can you imagine the state we’d be in if Labour had succeed in passing all the dreadful legislation it has proposed over the past eleven years?

Sally’s Law: as a Liberal Conspiracy discussion grows longer, the probability of Sally posting an abusive and non-constructive comment approaches 1.

Really bad governments don’t exploit loopholes in laws: they ignore laws, murder people and boast about it. Less bad governments act less severely, but still out of hatred, fear, impatience and misperceived necessity.

Quite. And well-drafted laws interpreted by independent courts, whilst they can do fuck all about really bad governments, do constrain less bad governments. The fact that the US, under one of the vilest administrations ever elected in a liberal-democracy [*], only eroded the principles of justice as much as it did – and is showing good and rapid signs of recovery – is a salutary example.

[*] not that the US is liberal in the LC sense, but that there is a generally understood rights+votes model of governance called ‘liberal democracy’, which pretty much consists of (US + EU + might-as-well-be-EU-but-don’t-want-to-lose-their-fish/oil/gold + trying to be EU + Commonwealth), but which doesn’t encompass everywhere that has the occasional vote to choose which dictator will torture you on a whim.

@ukliberty, on your PS, I think you might be being over-party-political and under-structural.

If you’re a Tory MP in the current parliament, you’ve either been there forever, or you’ve managed to land a safe seat by serious politicing in the wilderness years when others were busy management-consulting, PR-ing, etc. If you’re a Lib Dem MP in any parliament, you’ve either been a Liberal since Gladstone, you’ve managed to land an incumbent-if-hardly-safe LD seat through serious politicing throughout, or you’ve been selected for a by-election to show the nation that the Lib Dems are Serious People.

On the other hand, while a lot of long-serving Labour MPs live up to the duties expected of them (my MP, Jeremy Corbyn, is so good at this that I’m going to vote for him next time despite my utter distaste for the national party – because there is absolutely no way that anyone else standing in Islington North will be a greater asset to Parliament than him. This is how you, dear reader, should choose your MP. Similarly, when my MP was Beverly Hughes, I didn’t vote for her even though at the time I supported the national government), most of the 1997 intake were daft hacks who didn’t even expect they’d get in, and most of the subsequent intakes have been subservient hangers-on.

Hence, it’s pretty much certain that after the next election, in terms of general competence and respect for parliamentary procedure rather than sheer political allegiance, that there’ll be an awful lot more dreadful Tory MPs than now, and that there’ll be far fewer dreadful Labour MPs.

Reversing the burden of proof in rape law doesn’t have to lead to somewhere unpleasant, as long as you tell men that that’s what you’re doing. Then they can take appropriate measures.

13. I guess there is some truth to what you say there, certainly regarding MPs voting on timings…however how realistic is it for MPs to vote against timetables? Wouldn’t that ultimately set a precedent of delaying government control? And, in reality, wouldn’t it always be agreed on by the governing party because their MPs would see it as a vote of confidence in the legislative program?

@17 yes, I suppose ‘never having sex with anyone ever’ would be one way of resolving it; it never did Gandhi any harm, for example.

No, john b, a person could only have sex when consent is demonstrably given. I can appreciate that this might take a stretch of the imagination for some men, but I think it would be hard for a reasonable person to argue against.

The fact that the US, under one of the vilest administrations ever elected in a liberal-democracy [*], only eroded the principles of justice as much as it did – and is showing good and rapid signs of recovery – is a salutary example.

That does seem like a bit of a stretch. If changing the politician in charge without changing the law makes that big a big difference, then you can only use that as support for your argument that ‘laws matter; politicians don’t’ by sneakily moving the ‘don’t’.

Sure, institutions matter most – an independent judiciary (and a military that stays out of politics) are key to not being the kind of place asylum-seekers come from.

After that, it’s all people making choices. If you have a police station full of Gene Hunt’s even more sexist sidekick, there is no particular clever (or unclever) phrasing of the rape laws that will change things very much.

@21 How about reversing the burden of proof?

@20, which the defendant is supposed to prove how exactly – a written consent form perhaps? I’m told secretly videoing one’s sexual encounters is frowned upon.

@ 23 Who said anything about videoing sex acts? And since when did obtaining someone’s informed consent have to be done without their knowledge? Your thinking is a bit strange if you don’t mind me saying

But yes, a non-forgeable, non-coercable consent recording of some sort would have to be envisaged. One that could be withdrawn and renewed as required, and be as convenient as other safe sex measures.

If we care about stopping rape, we’ll put our minds to it, surely…

A country which is only just starting to have success in persuading people to use condoms is going to have a expensive time getting people to sign legally sound forms before hooking up.

What rot, #25 People have been using condoms for donkey’s years. Since the Romans or even before.

I can’t help thinking that the risk of going to prison for rape and being on the sex offenders register would focus their minds rather, in terms of their willingness to obtain proper consent, perhaps even more so than the risk of their partner having an unwanted pregnacy might motivate them to wear a condom…do you disagree?

I can’t help thinking that the risk of going to prison for rape and being on the sex offenders register would focus their minds rather

The burden of proof is at is for a reason: the principle that only people guilty of a particular crime should be convicted of it. If you use the threat of being convicted of a serious crime in order to enforce some other, more footling activity (form-filling), then you have subverted the basis of the justice system.

Your plan could be improved (a bit) by keeping the rape law as it is, but introducing a new, minor offense of “sex without written appropriate forms filled in”. It would still involve large number of innocent people being criminalised, of course, but at least they should avoid prison-time.

john b @16, certainly Jeremy Corbyn is one of the white hats, indeed one of those 20-30 Labour MPs I mention from time to time who are regular stars in voting against (see rebellions) Labour’s dreadful proposals.

Lee @18,

13. I guess there is some truth to what you say there, certainly regarding MPs voting on timings…however how realistic is it for MPs to vote against timetables? Wouldn’t that ultimately set a precedent of delaying government control? And, in reality, wouldn’t it always be agreed on by the governing party because their MPs would see it as a vote of confidence in the legislative program?

Lee, the latter is what I see as the very problem – or they are merely supine. Either way, we ought to be rejecting Governments that rush things. It is a great pity that the Commons isn’t a bit tougher and forces the Government to introduce programme motions that offer much more opportunity for scrutiny and/or bills that are more tightly drafted and focussed (i.e. avoid the portmanteau bills they seem to be fond of). We are relatively much better off in terms of what happens in the Lords, where they seem to be more keen on spending more time.

An example is the debate on a programme motion relating to the (then) Anti-Terrorism, Crime and Security Bill (one of the motions Corbyn voted against, by the way). (also see the vote.)

I can’t tell you how much I agree with this article. There’s a tendency among all Governments to use legislation as their primary weapon for more or less any scenario (that is currently reaching a grisly apogee with the ‘halve the deficit’ bill), even when legislation is either ineffective or malign.

The troting out of the idea that such and such a law is needed to ‘send a message’ and that ‘of course it won’t be used for…’ makes me want to tear my hair out.

And Clarice’s idea that we should deliberately remove the golden thread of English liberty – perhaps the one truly beautiful legal concept that there is – is both pernicious and, fortunately, absurd. Quite apart from anything else, the presumption of innocence is a foundation block of the ECHR…

Clarice, you are not even wrong about reversing the burden of proof in rape cases.

I’m surprised that no-one has mentioned the, frankly astonishing, Legislative and Regulatory Reform Bill

http://www.saveparliament.org.uk/index.php

ukliberty, thanks for the link, a useful concept

Clarice: do you envisage this being a one-way consent form or would it apply to both parties? Could a man accuse a woman (or another man) of rape, or sexual assault, after sex has taken place and the other party have to prove the sex was consensual.

Would you at least insist that sexual activity be proven to take place first (forensically)? Otherwise anyone could accuse anyone else of raping them at any time and people would have to constantly account for their whereabouts. And never spend any time in any room with someone they didn’t know well enough to believe firmly would not have a reason to accuse them of rape at some point in the future. Actually, it would be kinda like living in Saudi Arabia.

At least those GPS systems on 3G phones would have an additional use as an alibi!

Typically it takes tech site The Register to highlight actual or potential loss of freedoms as they have done several times before while over here they wank over the idea that Balls pwned Gove.

RIPA and other restrictive laws will continue to added to the statute books not least because people such as Sally and all-too-many supposed left-ish types who inhabit this website (Lee Griffin and one or two others are honourable exceptions) are more concerned with pathetic name-calling and point-scoring.

It was the same with detention without charge and God knows many other bills.

“nobody aside from the truly vile could oppose locking up more rapists – but when people start to suggest that a good way to do this would be by reversing the burden of proof in criminal cases, that rapidly takes us somewhere very unpleasant indeed.”

As Clarice helps demonstrate, plenty of feminists genuinely disagree with this.

Yes. I don’t dispute that it *could* take us somewhere very unpleasant, but it doesn’t have to, unless you are committed to maintaining the balance of power that men take for granted in sex relations. Which I am not, and neither should any man be that genuinely thinks that rape should stop.

Clarice: ‘I don’t dispute that it *could* take us somewhere very unpleasant, but it doesn’t have to, unless you are committed to maintaining the balance of power that men take for granted in sex relations.’

I don’t object to reversing the burden of proof in rape cases because I want lots and lots of patriarchal power to do what the hell I want with women.

I object to it because a fundamental principle of the common law is that if the state wants to take away someone’s liberty and good name they have to damn well prove, beyond reasonable doubt, that they have committed the crime they’re accused of.

If you prefer ‘the state can bang you up if you can’t absolutely prove you didn’t do something’, bully for you. Just please don’t tell any of us that our lack of enthusiasm for unconstrained state powers and inevitable miscarriages of justice is because we’re a bunch of uptight chauvinists.

Lee…

“Good stuff Sally, scare off people we have common ground with as well as everyone else. *thumbs up*”

Oh dear, poor little Lee really is deluded.

The troll openly admits it is the first article he has ever agreed with on here. He is being the snark like most trolls.

If you think you are going to form meaningful political alliances with trolls like him you are very much mistaken.

Lee, you must learn to recognise scummy trolls, and you must really get over this weird belief that like John the Baptist you can some how convert them to your way of thinking. Ain’t going to happen boy.

Dan @36, very well said.

Dan, I’m not saying you want lots and lots of patriarchal power to do what the hell want with women. I’m saying you’ve already got it. As have all men, by virtue (among other things) of knowing that you can rape you who like, with very little chance of prosecution, let alone conviction. And that’s not going to change, until men start to acknowledge the reality that they enjoy and take for granted, whether they use it or not, and realise that it’s not an acceptable state of affairs.

I’m not in favour of miscarriages of justice either. Every rape that goes un-unconvicted is a miscarriage of justice, and I’m interested in thinking about what would need to change in order to stop that. Not many men seem to be so interested, strangely enough. At the moment we have a culture of near-impunity as far as rape is concerned, and anyone who argues for maintaining that has got some explaining to do. If you are so interested in justice, I’m surprised you take the view that you do. You seem to be arguing that it’s better for 95 rapists out of a hundred to face no sanctions, than for one innocent person to go down. It’s a question of balance, Dan, do you see?

If there were a cultural shift such that obtaining consent became the norm, then a man that has sex without it can’t claim that he didn’t know what the potential outcome could be. If it’s *expected* that a non-rapist would obtain consent, then failure to do so would in itself speak volumes. I can appreciate that the notion of obtaining proper consent as a matter of course might be a conceptual leap for some men, but that too speaks volumes about current attitudes.

I’m not arguing for reversing the burden of proof for any other crimes, or turning the rest of the legal system on its head. I’m just acknowledging the particular and specific nature of rape, which means that the logic of the law does not deliver justice to rape victims. You might be happy to write this fact off as just one of those things, if you are a rape-apologist, but I suspect you are not. The law in rape does not deliver justice: therefore the law needs to be changed. My suggestion would do the job, while at the same time protecting men from false allegations. If you argue against it, you argue against restricting rape. Which I’m sure you’re not intending to do?

Clarice, I know rape is a disgraceful crime and I know a lot of rapists get away with what they do, though most researchers in the field would dispute your ‘95%’ figure. I also know that a lot of murderers or violent thieves get away with what they do. I’ve seen the casualties of a suicide bombing: it was horrific, and so far as I know the men who planned it got away with it.

We can let our horror at rape allow us to tear up the burden of proof and the presumption of innocence, just like the horror the American public felt at the 9/11 massacres allowed George W. Bush to tear up the prohibition of torture and the right to a fair trial. That was for just one particularly kind of crime, remember? And there were all sorts of plausible reasons why normal rules about getting evidence didn’t apply.

Or we can still act like civilised human beings despite what the rapists and the murderers do. I’m for that course: no unbridled state powers and no obvious potential for miscarriages of justice, no matter how horrific a crime might be. How about you?

I’m not advocating tearing up anything. I’m solely proposing reversing the burden of proof on the question of consent, nothing more. And what I’m proposing would protect men from 100% of false allegations, so I’m really not clear as to what real grounds you have for objection.

Your analogy with the Bush regime is plainly not appropriate, because what I’m proposing is a lot more precise and specific than a metaphorical war against an abstract noun. As we’ve seen, what constitutes terrorism, and what constitutes torture can be spun in different ways according to political expedience. This does not apply to rape, which is clearly and concretely defined, and I am not advocating any modification of the current definition. Anti-terror laws are written so vaguely as to be able to be applied against non-terror suspects, which again, is not the case in rape law. Your analogy is 100% spurious, and, I would say, mischeivous.

At the moment, there *is* a very obvious, and frequently realised potential for miscarriages of justice, which you seem to be arguing for. I cannot agree with you on that point. As a civilised human being, I believe that situation should change. You seem to be arguing for keeping a status-quo which effectively confers immunity onto perpetrators of a pretty serious crime, while exposing men to false allegation. If you think rape is so horrific, how can you possibly endorse a situation which denies justice for the vast majority of its victims? And if you think convictions arising from false allegations are so terrible, how can you object to a proposal that would bring that figure down to zero?

Dispute the 95% if you want, the point is it’s still massively higher than the proportion of murderers or violent theives who fall through the net. Add up the victims of suicide bombers in the average year, and add up the victims of rape. One of those numbers will be a minute fraction of the other. If the figures on rape were anything like those on suicide bombers, I’d agree with you. But they aren’t. I also don’t think there are many suicide bomb attacks that go unreported. I’m not sure you can say the same about rape…

Your cover for wanting to keep things as they are, claiming ‘thin-end-of-the-wedge’, simply doesn’t hold water. It looks like an excuse to me, and not a very good one at that.

My motivation, btw, has less to do with the seriousness of the crime per se, and more to do with the frequency and the effective impunity with which this relatively serious crime is committed. These things don’t seem to me like a trifling matter.

john b and others:

Here is the problem with rape. As it stands, there are essentially two defences:

(1) Sexual intercourse never took place; or
(2) Sexual intercourse did take place but it was consensual.

If forensics can prove that sexual intercourse did take place, then someone accused of rape has essentially one defence on which to rely, and that is the presence of consent to the sexual act.

In other crimes which are not rape, the defendant must show reasonable proof of consent in order to use it as a defence.

In the case of rape, however, when consent is used as a defence, this requirement is reversed, and it is the accuser who must show proof that there was no consent – i.e., the accuser must prove a negative. In practice, this amounts to showing evidence of injury; but as we know, many victims of rape do not offer physical resistance, because of fear or threat of further injury (amongst other reasons).

If I understand Clarice correctly, she is advocating that the legal presumption should be of absence of consent unless the accused can prove otherwise. Does this amount to reversing the burden of proof? I’m not sure.

Consider a car. It belongs to gentleman A. Gentleman A reports that friend B has stolen his car. The car is discovered in the possession of friend B, who claims that gentleman A gave him permission to take it. Gentleman A cannot ‘prove’ that he didn’t give permission, and friend B cannot ‘prove’ that he received permission. Where does the burden of proof lie?

I don’t wish to trivialise rape by comparing it to car theft (or not), but when no proof of either claim can be offered, a legal presumption must exist, of which ignorance is no mitigation. In the case of rape, the presence of consent appears to be the legal presumption, at least in practice if not in statute. All sexual intercourse is assumed to be consensual unless one party can prove otherwise. As proving a negative is often impossible, do you think this is a sensible legal presumption? Is it, moreover, one that is applied in cases other than rape? I wonder.

“My motivation, btw, has less to do with the seriousness of the crime per se, and more to do with the frequency and the effective impunity with which this relatively serious crime is committed. These things don’t seem to me like a trifling matter.”

What do you mean by relative impunity? The stats suggest that rape has comparable attrition for a number of other crimes against the person: http://www.straightstatistics.org/article/how-panic-over-rape-was-orchestrated

Should we say that people can assault with impunity too? There is certainly a good chance that people will get away with it, so on your logic people can. But thats presumption of innocence for you. It applies everywhere else too. Rape is not a special case on that front. It is one very serious form of violence that should be severely punished when people are properly convicted of it.

There is no patriarchal conspiracy behind this. Crimes against the person, in general, are often very difficult to prosecute.

45. Just Visiting

Sorry Clarice, but I too just see a can of worms in your suggestion.

But can you spell out the practicalities – how would it work?

A piece of paper that is signed there and then before the sex act?
What’s to stop a would-be rapist being nice to get the thing signed, and then turning nasty and comitting a violent rape?

Would the man need to get a new piece of paper before every sex act on each subsequent day?

In other crimes which are not rape, the defendant must show reasonable proof of consent in order to use it as a defence.

What? You think that the way the law works is that if I borrow Bob’s car, and Bob calls the cops and says I’ve stolen it, then I have to prove that Bob gave me permission? That’s completely the opposite of how it works: in real life, the CPS have to show that beyond-reasonable-doubt Bob didn’t give me permission, *and* that I didn’t hold the reasonable belief that Bob had given me permission.

I do understand that there’s a problem in finding, charging, prosecuting, convicting and jailing rapists. I understand, although I disagree with, Clarice’s logic that rapists so seldom get through all five steps that changing the way the law works specifically for rape cases might help end that [*]. However, your suggestion that this would be comparable to already-existing things, rather than a really disturbing new precedent set for worthy reasons that directly applies to the original post is simply nonsense.

From my POV, rather than addressing the not-particularly-different-from-other-violent-crimes levels of attrition between charge and conviction, addressing factors at reporting level and at charging level that reduce rape conviction levels is far more important – not to mention really really explicit education, from primary school age onwards, that “if you do this to someone in this situation it is rape and it isn’t OK; if someone does this to you in this situation it is rape and you should report them”.

Based on publshed surveys of boys’ and girls’ attitudes to sexual offences, on talking to many if not most of my female friends about what happened to them when they were younger & how they accepted it at the time, and on some (more limited for obvious reasons) talking to my male friends about their and their friends’ attitudes, better education is going to make a damn sight more, and more positive, difference than junking a major part of the justice system in a way that will certainly mean that people who merely failed to fill out forms will get punished as rapists, whilst most rapes still don’t even get reported to the police.

{slightly unfair rant}
But that’s largely because I’m not a gibbering NewLabour idiot who thinks that creating a new offence that makes something already illegal more illegal, whilst also making something which isn’t actually wrong illegal, is the appropriate way to do legislation.
{/slightly unfair rant}

[*] although her use of ‘miscarriage of justice’ is so flawed it could’ve come from the foam-flecked-est Daily Mail reader: the term means ‘case where a person is fucked over by the justice system’, not ‘case where a person’s assailant isn’t punished’.

@44 Attrition rates are relevant in the case of rape for the reasons mentioned by 43, and in view of the threshholds required for the CPS to prosecute (ie >50% likelihood of conviction). The article you cite is problematic from a methodological point of view for a number of reasons, the chief one being that it is logically inconsistent, and its premises do not support its conclusion.

And then there are the reasons for under-reporting of rape relative to under-reporting of other crimes, which don’t seem to given much consideration in weighing up the figures.

On the subject of impunity, the law does not presume that I consent to an assault unless I can prove otherwise, whereas it does presume that I consent to sex. So no, I wouldn’t say that people can assault with impunity in the same way that they can rape with impunity.

@45 I made no claim to be able to spell out the practicalities, simply queried whether people were prepared to think about how a solution of the type I suggested could be made to work. But loosely speaking, a piece of paper or some other recordable (eg technological) method of consent given before proceedings, yes. And it could specify or exclude particular sex acts, including violence, which some people include in their definition of sex, and/or it could be withdrawable at any point in procedings, as consent as we presently know it is withdrawable. If the person then goes mental and commits a violent or otherwise non-consensual act, it will be clear that consent was not given, whether or not it is also clear that consent was withdrawn. In any case, if both parties gave some thought to the parameters of the consent being sought and given prior to the act, one may find people engaging less in risky partnerships, and/or taking fewer liberties with the other party. Where a sufficient level of trust exists between parties, they could mutually skip the consent-giving part with no ill-effect. eg in a happy non-abusive LTR.

At present, yes, a man does has to have separate consent each time he has sex, otherwise that is rape. I would envisage that situation to continue.

My point is that if there is any theoretical mileage in this idea, then it will be worth operationalising how it would work in practice. If the means to administer it do
not at present exist, then it will be worth inventing them.

I would only envisage this whole suggestion as a “can of worms” relative to a situation where the question and parameters of (largely) female consent have hitherto been of little interest to the man (or woman). Sorry to put a spanner in the works, but the present situation necessitates it.

@43 You do understand me correctly, and I suspect you are right that what I propose does not entirely amount to reversing the burden of proof. Apols for any confusion.

@47 @44 “this is logically inconsistent” is usually a better argument if you can show some kind of reason why, rather than an assertion. Specifically, “the attrition rate for rape is similar to that for other crimes against the person, therefore singling out rape for special judicial treatment doesn’t make obvious sense” is a completely consistent argument unless you can either demonstrate that the data is flawed, or that there are other premises that make rape worth singling out in this way.

@47 @43 no, you suspect wrongly, and it does.

john b 46 and 48:

Indeed, this is the difficulty, although I notice you use the word ‘borrow’ rather than ‘take,’ which is rather a loaded way of putting it, implying as it does that you intend to return the car.

But no, I am sorry: this is not how the law works. If I report my car stolen, I am not asked to provide proof that I didn’t agree to it. The person in whose possession the car is found is required to provide some proof that it was in his possession legitimately. And of course, as I pointed out, this is not exactly comparable to rape, because one can return the car to its owner.

Nevertheless I see your point; and I agree with the solutions you offer.

As a side note, you might give a little more thought to whom you call a ‘gibbering New Labour idiot,’ as it is possible both to disagree with your views and to comment on this site without being one. ‘Slightly unfair rants’ are just that – unfair and, in this case, totally unfounded, especially given what you know from speaking to me in person.

@50 hmm. the law allows for “borrow”, as I’m sure you’re aware, by making the offence in question Taking Without Consent rather than theft.

The Theft Act 1968 says:

a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another’s use, or knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.

In other words, consent isn’t a statutory defence that has to be proved by the alleged TWOC-er, it’s a key element of the charge that has to be proved by the prosecution.

And yes, obviously apologies for the gratuitous “idiot” reference – but I can’t help but think your advocacy of major constitutional change, whilst claiming falsely that it isn’t a major change based on a lack of understanding of current law, is quite New Labour-y (and I’m afraid I can’t relate your handle to anyone IRL, so I’ll have to take it on trust that this is an aberration…)

Garr, I’m going to stop using numbers altogether (also Sunny: please bring back the “edit” option!) – the last one is @julymorning.

@ john b (50):

I advocated nothing. I explained a position that many people hold. I never claimed it wasn’t a major change. I even said that I was not sure, and that I wondered. You must read things as you wish to read them, but I do not see how attempting to help clarify the debate, or wondering whether the current law is well-reasoned and well-applied, is New Labour-y.

As a matter of fact, I see enormous problems with the way rape is dealt with in the courts, but I personally do not believe that the burden of proof is one of them. Rather, it may be a question of penalties for rape being too harsh, making juries unwilling to convict when forensic proof is scarce. Instead of lengthy prison sentences, it might be better to impose a short prison sentence and a hefty fine.

For example, people who are injured in car accidents are often able to recover medical costs from the at-fault driver, who may also serve a short custodial sentence for negligent driving (or similar). This isn’t necessarily a good example, but perhaps a rapist could be made to pay for the victim’s therapy as well as punitive damages, and serve a short sentence for causing bodily harm.

I’m not saying it’s entirely a sensible idea (no doubt someone will pop up complaining that people would just buy rape insurance), but different sentencing might result in more convictions. And as there really is no recompense for rape, the sentence may even be considered by some people to be less important than that justice is done and seen to be done.

The person in whose possession the car is found is required to provide some proof that it was in his possession legitimately.

The point being – I think this is what’s being driven at, and it should be admitted clearly – is that it is possible to imagine circumstances in which the defence “Bob said I could borrow it” might be enough get an actual car thief off the hook, in the absence of any other evidence.

On the other hand, in most cases it wouldn’t get me very far if e.g I’ve never met Bob before, smashed the window, and then hotwired it.

The main reason this is a poor analogy is that most rapes are committed by people who know the victim, and most car-thefts are not. But the basic burden of proof is the same in both cases.

@julymorning are you absolutely sure you aren’t New Labour? Because a solution which ensures that guilty people will get a grossly lenient sentence, whilst also ensuring that innocent people will end up in jail, in the name of improving the conviction stats, kinda sounds that way…

By what standard is it ‘grossly lenient’? And why do you assume it means innocent people will end up in jail? Surely it goes without saying that the goal is not simply to improve conviction stats, but to improve valid conviction stats.

Insisting on hugely harsh penalties for a crime you acknowledge is, in many cases, not provable (at least beyond reasonable doubt) is equally silly. Not only do innocent people end up in jail, they end up there for far longer. Not only that, but rape accusations are incredibly damaging to the accused, even if they are found not guilty.

Your article rightly criticises poor drafting of laws, and you put the boot into New Labour for making things which are already illegal more illegal and creating new crimes. And yet when I suggest that rape is a case of bodily harm, and should be treated as a case of bodily harm, which is already illegal and a specific category of law – thus agreeing with you – I’m still New Labour-y.

This suggests you think rape is a special kind of crime, which is more illegal (and thus carries harsher sentences) than existing crimes of a similar kind.

So what is your actual position?

julymorning,

As a matter of fact, I see enormous problems with the way rape is dealt with in the courts

OK, but the biggest factor in the (perceived) low ratio of convictions : allegations is due to attrition, before the cases make it to court, not what happens in court. What happens in court in rape cases in terms of convictions : prosecutions is relatively OK, in that about half the prosecuted end up being convicted.

And why do you assume it means innocent people will end up in jail?

Because of the presumption of non-consent if there is no record of consent (in Clarice’s legal system it’s rape if my sexual partner wakes me up in the morning with a blowjob, ffs), unless there is a trusting (presumably this means long-term) relationship – which itself seems a problem in terms of the substantial proportion of rape that occurs within such relationships, i.e. you are presuming consent in those cases.

What actually needs to happen is more along the lines of what John said @ 46, along with continuing to implement the recommendations of HMCPSI.

And I’m no prudish teetotaller, or “blaming the victim”, but maybe people ought to drink less too.

Clarice: ‘And what I’m proposing would protect men from 100% of false allegations, so I’m really not clear as to what real grounds you have for objection.’

No, it wouldn’t. What you are proposing is that every couple sign a ‘consent form’ every time they have sex, which will prove that the woman has consented to penetration. If a woman subsequently accuses a man of rape and he cannot provide the consent form, he’s guilty of rape.

It actually beggars belief that a sexually active adult thinks this will protect women from rape and men from false allegations, but let’s just list some of the reasons.

1) If a man is violent and perverted enough to force a woman to have sex against her will, he’s equally capable of forcing her to sign a form, and of having a look at her credit card to make sure she’s signed it correctly. No protection against rape there.

2) Often rape occurs when a woman consents to some form of sexual contact with a man- kissing, fondling, oral sex, whatever- and didn’t have a definite idea whether or not she wanted penetration- then she changes her mind, which is a woman’s perfect right, and tells him he can’t penetrate her. I absolutely believe no man has the right to go ahead and penetrate a woman if she tells him he can’t. Under your system, if she’s signed a form before she changes her mind, that’s her tough luck. No protection against rape there, either.

3) Oh, we could get round the first two points, couldn’t we? We could have a clause in the law which says that a signed ‘consent form’ means a man’s not guilty of rape- *except* for those circumstances in which a woman says he still raped her. No protection against miscarriage of justice there.

4) Forget about men’s sexuality and behaviour for a minute: think about women’s. Do you genuinely believe that all women will always carry ‘consent forms’ plus pens around on them, or insist that their likely sexual partners do so, and will refuse to have sex with any man if they don’t have consent forms to hand? Do you even believe that most women will do that? Of course they won’t. Some might insist on it for the first instance of sex with a partner, or the first few times, and then let it slide. The signature of ‘consent forms’ will happen for a small fraction of sexual encounters, and for all the others we will be left with men obliged to prove absolutely that they did not commit a crime. No protection against miscarriage of justice there.

…And why stop at adult rape? Years ago I worked in a home for disturbed children, many of whom had been sexually abused by adults- sometimes involving penetrative rape, sometimes not. Getting convictions against those adults is very hard, because children are usually under the power of their abusers, are frightened and inarticulate and forensic evidence is very hard to do so. Let’s reverse the burden of proof in child sex abuse cases as well. There won’t be any problems at all with false accusations- and if you believe that, you have never worked with abused children.

There are some shocking estimates of just how few raped women see justice in this country. Some studies indicate that other democracies manage better conviction rates. Let’s have a real argument about what they are doing. Let’s also have a real discussion about how policing could improve to catch more rapists, and about how men’s behaviour could be changed to reduce the numbers of men who think you can go ahead and do what you want to a woman.

Or alternatively, let’s entertain ourselves with fantasies of how we can give the state powers to jail people if they can’t prove their innocence and how this will all be fine because we’ll have a magic piece of paper to stop things going wrong.

Pity you do not bother to understand RIPA .

Surveiallnce was not generally regulated until the Human RIghts Act section 8, which requires it be justified. RIPA is the standard for justification but does not have to be used if you can meet HRA requirements otherwise.

Much of the use by Councils is for things they have doen for years without much controversy, such as underage sales campaigns


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