This rape debate is demeaning to women

A row broke out in the UK yesterday over comments by the justice secretary, Kenneth Clarke, about rape. After Clarke gave an interview on BBC Radio 5 Live, Labour leader Ed Miliband demanded his resignation for suggesting that there are ‘other categories of rape’. In this article, in response to an official review of rape law in March 2010, Nathalie Rothschild examined why the contemporary debate about rape is actually bad news for women.

A new report on rape and the criminal justice system in England and Wales has concluded that the debate around rape has been too much focused on conviction rates. Yet while Baroness Stern, author of the report, recommends that from now on support and care for victims be given as high a priority as the prosecution and conviction of perpetrators, her report is unlikely to change the terms of the debate.

The Stern report does not challenge the way in which women today are encouraged to see themselves as victims and how they are regarded as less accountable for their actions than men. And in suggesting that women reporting rape should be believed from the outset, Stern is insisting that, when it comes to alleged crimes of rape, the accused is guilty until proven innocent.

Feminists and rape awareness campaigners have been dismayed at Stern’s suggestion that attention be diverted away from the often-repeated claim that only six per cent of rapes lead to a conviction. This refers to the total number of reports producing convictions, but Stern says it is misleading as nearly 60 per cent of those charged with rape are, in fact, convicted.

A large number of reported rape cases, the Stern review found, are either unrecorded or retracted, while in 23 per cent of cases there is insufficient evidence to charge the suspect. So the attrition rate in rape cases is high, with only 12 per cent of cases reaching court. But the actual conviction rate for those cases that do get to court is as high as 57.7 per cent.

Stern suggests that the way to encourage women to report rape (and by extension to increase conviction rates – an ambition normally restricted to totalitarian states) is by diverting attention away from the off-putting six per cent figure and instead emphasising the more ‘positive’ conviction rates when charges have been brought. In other words, Stern is simply proposing a new spin on rape statistics rather than questioning the basic premises around the debate about rape and the criminal justice system today.

In 2007, Camilla Cavendish of The Times (London) found that rape allegations had jumped by 40 per cent between 2002 and 2005. While this can partly be put down to improved support for women, which facilitates the process of reporting rape, Cavendish argued that a widening official definition of rape also played a big role. Since the Sexual Offences Act 2003 came into force, the definition of rape has been expanded to include oral sex. But there has also been a profound attitude shift with roots in the second-wave feminist idea that heterosexual sex is an inherently violent and degrading act that women subject themselves to against their better judgement.

More than four out of five rape allegations are made against friends or acquaintances. As alcohol and/or drugs were involved in over half those cases, Cavendish puts this down to ‘the culture of binge drinking’. But this avoids the more complex picture. Today, various rape-awareness activists and state feminists are themselves helping to blur the boundaries between sex and rape, encouraging women to regard themselves as violated, abused and traumatised for having gone to bed with a man without thinking it through in minute detail.

The Sexual Offences Act 2003 declared that consent must be ‘active, not passive’; in rape cases, consent is now taken to mean agreement rather than the absence of a refusal. So if a woman goes along with sex, but doesn’t make it explicitly clear that she is actively consenting to it, it can be deemed to be rape. The government has even moved towards ensuring that no agreement can be taken as consent if it is given under the influence of alcohol. As Cavendish pointed out: ‘In our zeal to protect women, are we going to legislate so that a drunken man is accountable for his deeds, but a drunken woman is not? Why do we encourage women to see themselves as victims?’ Absolving women who engage in sexual liaisons – whether drunk or sober – of responsibility for their actions is not liberating; it’s demeaning.

There is no doubt that forcing someone to have sex is a heinous, violent and degrading act and victims of rape should indeed be treated with dignity and respect. But in the name of protecting women, the government is insisting that rape cases be treated differently from all other crimes, while interfering with the course of justice in a way that undermines defendants’ rights and undercuts the power of juries.

For those women who have baulked at Stern’s bout of stats spinning, it is only right for the legal process to be tailored to plaintiffs’ needs in rape cases. The solicitor general, Vera Baird, said she had reservations about ceasing to refer to the six per cent figure – the percentage of rape reports that produce a conviction. ‘Although we don’t count any other offence in this way’, she said, ‘it is particularly meaningful as it reflects the high number of rape victims who drop out before they get to court, and we really need to focus on that group.’ But this assumes ‘that group’ is actually made up of genuine rape cases. Without the chance to test that in court, we can never know.

Similarly, Nicole Westmarland, a lecturer in criminology and former chairwoman of Rape Crisis, insisted the process of reporting, prosecuting and convicting those accused of rape should be on different terms than other offences. She said that ‘all too often rape is just dismissed as “one person’s word against another’s” because a thorough investigation has not taken place. Evidence collection and management must be improved.’

Yet rape is difficult to prosecute precisely because it is, sometimes, a matter of his word against hers. There are often no witnesses and little circumstantial evidence, particularly in cases of acquaintance rape. It is very difficult to establish the truth in rape cases, but that does not mean that truth should have no bearing on the outcome of a rape case in court.

Yet, with the blessing of the government and various feminists, some important legal safeguards have been eroded in rape cases and the burden of proof has been reversed. Rather than the prosecutor having to prove that the woman did not consent, the defendant now must prove that the woman did consent.

Women are done no favours by these changes. They are being treated as feeble dimwits who have constantly to be asked for their consent, to be checked on every step of the way to make sure they’re okay. It is curious that self-described feminists are propounding such a paternalistic view of women as unable to make their own minds up, as too weak and silly to say ‘no’ to men, and as putting themselves at risk by drinking and flirting and potentially knocking out their critical faculties, leading them to wake up in a strange bed without having first given their ‘active consent’.

Nathalie Rothschild is an international correspondent for spiked. Visit her personal website here.