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

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.

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.

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?

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.

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 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…)

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.

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

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.

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’.

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?

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.

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.

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.

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 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?

“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.

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.