Ideas & Philosophy — 26 March 2006

This week the British Home Office has launched a campaign to remind men of the importance of obtaining the active consent of women before having sex. The campaign, costing £500,000 has been launched to get the message across concerning recent changes in the laws on consent. The changes are meant to emphasise that, if a man hasn’t received a clear sign of consent from the woman he is with – whether his wife, long-term partner or someone he met for the first time – he could be treated as a perpetrator of rape, were the case ever to reach court.

This change in the workings of consent has taken place because of the low conviction rates in England and Wales in cases of rape. It is estimated that around 50000 rapes take place each year of which only 600 result in conviction for the assailant. While the number of cases being reported is increasing, the likelihood of conviction is not changing. Part of the problem is that in half of these reported cases of rape, drink is a significant factor. In close to one third of cases, both the suspect and the victim claim that they were drunk at the time of the alleged offence. When juries are faced with accounts of events that include the confusion of inebriation, they tend to acquit because of the doubt involved. Undoubtedly this leads to guilty men walking free from court after carrying out serious attacks.

In all likelihood however, outcome of cases will not be changed substantially by the government directives. Already in November 2005 a case was abandoned after the victim admitted under cross-examination that she couldn’t remember whether she had expressed a refusal to have sex, or indeed whether she had consented. The judge then directed the jury to acquit and the prosecution withdrew the case at that point. The judge argued that since the woman was unsure herself if she had not consented, the jury could not possibly make a conclusion. The case is under government review, but if other judges use similar reasoning, the government campaign will have little impact. The reality of rape cases is that juries are effectively asked to consider one person’s word against that of another, and whenever there is doubt, they will acquit. Others however are nervous that if this new approach gains ground, it could by used by women as a method of revenge. If a woman regrets sleeping with a particular man, or wants to get back at a former partner, she will just have to claim that he didn’t confirm that she had consented. Thus it is claimed that this change will switch the burden of proof from the prosecution to the defence.

The real difficulty, which is behind the problem of rape, is that the attitudes towards relationships and sex in society encourage men – and women – to be single-minded in their pursuit of sex. As well as flirtation and persuasion, men can also add intimidation, coercion and violence. Police have noted that while ‘stranger rape’ has decreased substantially over the years, ‘acquaintance rape’ is on the increase. As forensic techniques have improved considerably over the years, men who violently attack strangers can expect a higher chance of getting caught, and getting convicted afterwards. So many of them have switched tactics. They arrange dates with women, ensure they are seen in public engaging in amorous behaviour, make sure the woman is drunk or otherwise intoxicated, and carry out their attacks behind closed doors. Such men are repeatedly involved in cases, but repeatedly acquitted because their history is not disclosed to the jury during the trial. This was a change that the government was also interested in, but was not able to bring into effect.

The problem that should be addressed is a cultural issue rather than one of courtroom procedures. Fundamentally, as long as the highest ambition in people’s lives is to obtain the maximum level of material pleasure, there will be people who will be driven to reach this at the expense of others. In the sexual realm, as long as men aim to be as promiscuous as possible, and expect women to always be available, they will use whatever means possible to achieve their aims .Now that women are encouraged to be as promiscuous as men, these men feel entitlement to use women for their pleasure. Threats from government that can’t be backed up are not likely to deter men from carrying out these attacks. The only thing that will seriously affect this state of affairs is a change of values in the wider society.

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