GRAHAM GREIG believes the proposed changes to the laws on rape – such as defining consent to juries – won't serve the interests of women, men or justice.
IT WOULDN'T be much of defence if any of us were to stand up in court charged with drink-driving to plead not guilty on the grounds that we were drunk at the time. Our judgment was so impaired by alcohol that we should not be held responsible for our
actions in getting behind the wheel of the car and reversing into a bollard or careering into a row of parked cars or killing someone.
The law takes the view we are all responsible for our actions. And, if our actions include getting completely pissed, then we are still responsible. Being drunk is no excuse.
In courts, pub brawlers are given no sympathy if they try to explain their action in breaking a complete stranger's jaw was completely out of character due to drink taken. Like stand-up comics who have an armoury of put-downs to hecklers, sheriffs have a well used repertoire of humiliating dismissals of people foolish enough to offer being drunk as mitigation for their actions.
I am not sympathetic to sexual assaults on women – I am not a rape denier. But the proposals for further amendment of rape law in Scotland in the name of increasing the percentage chances of successful prosecutions are largely bizarre and insulting to the intelligence of anyone living in the real Scotland rather than an ideological hologram of it.
The central proposal is that the concept of consent should be defined to help juries understand what is being said to them. That's my first problem – the unchallenged premise that people on juries are too stupid to understand the judge when s/he explains to them the nature of evidence and the requirement that in their deliberations they should convict only if they are sure beyond reasonable doubt that the prosecution has proved its case.
The weasel variation on the premise that juries are too stupid to understand is that they are inherently prejudiced against women. Why are they said to be stupid and/or prejudiced? Because some people who, unlike them, have not heard all the evidence decide they if a jury acquits a man accused of rape then that is the wrong verdict.
That is an insidious and unsupported calumny on the diligence of the individuals who do their jury service. The alleged evidence is based on specially commissioned public-opinion surveys masquerading as research suggesting that a proportion of members of the public may have general views that, in some circumstances, some women may bear some responsibility for bringing a sexual assault on themselves by their dress or their behaviour.
I don't know the detail of the raw data that supports those general assertions. I do know that it is too large a leap to suggest general views directly transfer to the jury members considering the evidence on the specific case unfolding before them.
I have watched enough juries to be confident that, on the whole, they take their responsibilities very seriously and pay close attention to the evidence, the speeches and the instructions of the judge. Jury selection is a lottery, but most defence advocates I know prefer to see a majority of women when the numbers are drawn. It does not suit the ideological orthodoxy that maybe juries are pretty effective in their collective understanding of human behaviour.
The new attempt to define "consent" by a woman is for the purposes of drawing up a new Act of the Scottish Parliament. In reality, most of the propositions put out for consultation are already well established as part of the common law development of the law on rape that evolved in the 20th century.
Any scenario where the complainer was unconscious or asleep, consented to sex under threat of violence or was held captive or deceived about what is happening have all been long accepted as criminal acts and have secured convictions. It has also been long established that any attempt to overcome the will of a complainer by deliberately getting them drunk or drugged is an offence.
The suggestion in the list of proposed definitions of lack of consent is "permission is not given when a person has taken too much alcohol or drugs to be capable of consenting, unless permission was given earlier". I can hear it now: "Hello. It's my intention to allow you to shag me in four hours' time, but in between now and then I intend to drink myself senseless. So keep my consent in mind. You would like it in writing? Certainly sir…"
To be blunt the legal issue is unlikely to be clarified for the sweaty masses in nightclubs at 3am. Up to now, it has been a requirement for a man to establish his prospective sexual partner is consenting to their tryst. The proposal introduces an additional responsibility for him to assess whether she has taken too much alcohol or drugs. But the reality is he may just have been taking some drugs or alcohol himself. The law is going to ask a man whose judgment is as likely to be impaired as the woman he fancies to make an objective and accurate assessment of how much drink she has taken. Moreover, he will have to make that judgment in circumstances where the female involved has failed to make such a competent judgment for herself. This is to cover the situation where the female "has taken too much alcohol or drugs". That is, she has voluntarily taken them.
It is an unhappy reality that, for some women, the aim of an evening out is precisely to take "too much". That does not mean they should be raped. That is clear. No-one should run the risk of being sexually assaulted while they are unable to give consent. But it's worrying the pursuit of an increase in rape convictions appears to rely on a denial of the reality that drunk people do things they later regret or can't believe they did.
There is something deeply suspect in the notion that if a woman and a man meet in a club and both get drunk and end up having sex with each other then the woman will be deemed not to be responsible in any way if she regrets it later but the man will continue to be held completely responsible. It does not seem fair for two equal participants to have entirely different legal liability.
I cannot imagine many other areas of Scottish life where it would be accepted that women should be defined as having a reduced legal capacity. This proposal seems to be a muddle of a long-obsolete view that women are frailer creatures than men with an overtly ideological view women are never wrong. It is a pernicious combination few in political life are brave enough to challenge.
It is appears to me there has been a paradoxical effect of the transformation in approaches to rape investigation and prosecution throughout the UK since the notorious Thames Valley Police documentaries of the 1970s. The scepticism and hostility to women who alleged they had been raped was so extreme and unacceptable it led to the instruction all complainers have to be believed and assured they are being believed.
The police report is sent to the prosecuting authority, the Crown Office in Scotland. The complainer will be precognosed (interviewed) as part of the preparation of the case and problems of lack of evidence or inconsistencies may be explored with them, but still within the assumption that the complainer must be believed and reassured the matter is being taken seriously. The assumption at the Crown Office is that rape allegations will be prosecuted where possible.
As a result, the first time the complainer's account of events including her own part in them will be directly challenged is in the witness box. I've seen how shocking and brutal an experience that can be to complainers.
I'm concerned a political drive to improve the rape conviction statistics won't serve the interests of women, men or justice.
• "Graham Greig" works in the justice sector.
