The last couple of pages are quite curious, I think. There are a number of strands though and I am trying to tease them out
In the first place those who assert that false allegations of rape ruin lives and are therefore very serious, are correct. However this is also true for anyone accused of a serious crime they did not commit. So what is the difference here? Well, underlying it there seems to be the idea that people are more often falsely accused of this crime than of others: the evidence does not seem to support that.
Secondly there seems to be an assertion that the safeguards within the criminal justice system, worked out over years and relied on in every other kind of case, somehow fail uniquely in rape cases. Yet the conviction rate is much lower than for other crimes, as it probably should be, given the problems inherent in this kind of crime. So we have the outcome which we would expect: how does that demonstrate that the safeguards in place are ineffective? In fact the rapist is very much more likely to escape prosecution and conviction than the perpetrator of other serious crimes. That this is known is perhaps reflected in the much lower confession rates for this.
The assertion that the social stigma attaching to this kind of crime is greater than for others is probably true in the limited circumstances of violent stranger rape: but it is not clear to me that this is true for the more usual rape. Those are routinely "explained away", not least by some here, who are happy to make up excuses and scenarios to remove responsibility from the average situation.
I see much repeated that the man accused of rape is assumed to be guilty and the woman who makes the allegation is automatically believed. This is not true and a great deal of evidence has been adduced to show that it is not true: yet it is repeated as if it has been established. Since this has been extensively addressed it is clear it is not amenable to facts and therefore there is little more to be said. However it is true that this happens sometimes. The problem of media coverage is certainly in play: but the poor conviction rate also plays a part in itself. People are not stupid. They know that many rapists are acquitted and thus the lack of trust in justice applies here more than to other kinds of cases. Just as victims must live with the inherent problems of this kind of case, so must some of the accused. Since we seem to be agreed that victims have to just accept that fact why not defendants?
It is proposed that the whole structure and principle of law should be altered for this kind of case alone and that case is made on not much evidence at all. There are some changes to the general principles, made in the public interest, and these have been explained by Francesca and others. But they are few and the case for them is very strong. What of the others?
Well different jurisdictions have different ideas about what cases should be brought and it is clear that this is open for debate. The principle here is that a case should be brought if the state believes there is a 50% chance of conviction. That seems right to me. It is not for the state to bring a case where there is no evidence. But justice requires that where there is a case it should be properly tried: it is not good to say that cases should be almost certain of conviction before they are brought: that pre-empts the proper trial process and it puts the prosecuting authority in the position of the judge and/or jury: a separation which is essential to justice, IMO. It is true that there is a balance to be struck somewhere, but a very high conviction rate does not demonstrate a better system: it demonstrates a system loaded against the victim, since many cases will be dropped though there is evidence the crime was committed: or loaded against the defendant since pressure will be brought to achieve it through confession or some other means
It is suggested that the police should investigate properly in every case where a complaint is laid. Certainly. And as the evidence shows this does not happen. So we are agreed about one of the changes which should be made. Good.
It is suggested that trial by media is not good. Again we are agreed. There used to be either a law or an agreement (not sure which) strongly upheld in this country whereby a case could not be reported on in any way which would prejudice a trial in advance of that trial. I have the impression this has changed, though I am not aware of why that is. It was a good principle though, and if the law has altered to vitiate it then I would like to see that changed back: if the press is merely less responsible than that, too, should change
However the way to deal with that is not to suppress the identity of the accused. Francesca has already explained the dangers of that and I agree with her. The principle of "innocent till proved guilty" is still in place: it serves as great protection for the accused in every type of case including rape (see above): and the standard of proof is "beyond reasonable doubt"; a good and necessary principle. The accused need not say anything in court: so the idea that it comes down to the credibility of each party is not quite right: at least not in terms of how you come across to a jury. This is another safeguard for the defendant and in truth the law is always very careful to ensure that the accused's rights are upheld strongly.
There is another reason for disclosure of the identity of the accused and it applies in this kind of case as much as in others: that is the admissibility of "similar facts" evidence. This is an important development in all kinds of cases and it is particularly helpful in rape cases, precisely because of the difficulty of securing convictions. Discussion of this here
http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd000622/z-1.htm
Similar facts evidence often comes to light because the identity of the accused is not suppressed: and this is in itself a strong argument against overturning the principle of open justice.
On the other issues raised: We have somehow been led into a discussion of the questions of consent and capacity. The double standard on show is quite breathtaking, actually. But there it is. I will say that the attribution of positions is not very impressive, however. I have not seen anyone say that sex with a drunken partner is always rape: I have not seen anyone say that it should never happen: and I have not seen anyone say that everyone who takes a half of shandy is drunk either. I do not see any evidence produced that many people who are drunk but capable of consent then change their mind the morning after and cry rape: it happens but if it is very common then there are a lot of brave people on this board: I suggest it is actually very rare or the "90%" mentioned as the figure of those who would be locked up would be very much lower. It is nonsense, and I am afraid I think that you all know it is.
I do not think the parallel with drunk driving laws in inappropriate, as was claimed. In fact we all have some idea of the point when alcohol impairs judgement: it is not always the same but we set an average standard for this and that seems reasonable to me: I do not see a whole lot of people campaigning to abolish that standard, though it is clear that some people can drive better with 4 pints in them than others can with 2. What is abundantly clear is that the point at which judgement is affected is generally with quite a low level of alcohol, and that is what the law reflects. Why should consent to sex be so very different?
It is true that many people "hook up" when they have had a few: and very few claims of rape come out of the millions of instances of that each weekend. What is it that makes this a fear? I suggest it is a hangover from what was earlier described as "victorian morality". But if that morality has changed for men, as seems to be the foundation for much of what is argued here, then why do you imagine it has not also changed for women? Is it possible it has not changed for either so much as we would like to believe?
