Molesting justice

Robert Henderson

The Director of Public Prosecutions (DPP) Alison Saunders  is to issue new  guidance to  police forces and prosecutors on the treatment of allegations of rape, viz:

Mrs Saunders said: “For too long society has blamed rape victims for confusing the issue of consent – by drinking or dressing provocatively for example – but it is not they who are confused, it is society itself and we must challenge that.

“Consent to sexual activity is not a grey area – in law it is clearly defined and must be given fully and freely.

“It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink.

“These tools take us well beyond the old saying ‘no means no’ – it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism.

“We want police and prosecutors to make sure they ask in every case where consent is the issue – how did the suspect know the complainant was saying yes and doing so freely and knowingly?”

This puts  men in a tremendously vulnerable position,   because rape cases  commonly do not rest on whether intercourse has taken place or not  but whether it was consensual. Consequently,  prosecutions are inevitably tricky, frequently coming down to  one person’s word against another with little if any supporting evidence as to who is telling the truth. To muddy the evidential waters further  the vast majority of rape allegations are made against men who are known to the accuser with a significant  proportion involving someone with whom they have had a sexual relationship before the rape.

What does meaningful consent mean?  

The new guidance means that a man will take his life in his hands if he has intercourse with any woman who has taken because she had taken drink because how on Earth is he to prove the woman was compos mentis when they had sex? . To  legally  give  her consent would a woman have to be stone cold sober, with drink in her  but talking fluently, slurred in her speech but aware of where she was and what she was saying,  inebriated but able to walk unaided  or so drunk that she needed to be helped to walk?   Or would she have to be unconscious?  Then there is the question of change of mood.  A person who has drunk alcohol  may be perfectly coherent but much less inhibited and do things they would not do when sober.  Could anyone who has taken drink be considered fully competent to make the decision to have sex?

The same would apply to drugs. It would all very subjective. There would be no objective point short of someone being unconscious  where it would be possible to  categorically say consent was not meaningfully given. Consequently, any claim short on proven insensibility should not meet the criminal evidential standard of beyond a reasonable doubt.

Apart from the subjectivity attached to the  woman’s condition there is also the question of who would provide evidence that a woman was unable to give meaningful consent.   Often the only witnesses   likely to have seen the woman shortly before she left a bar or a pub with a man are people were less than sober themselves. Take a common example,  a group of men and women go on a pub crawl and  at closing time a couple pair off.  Next day the woman makes a claim of rape and cites the other people on the pub crawl as witness to her drunken state before leaving the pub. The other people may say they thought she was too drunk, pretty drunk or drunk but not staggering drunk. The problem is that those witnesses themselves were most probably drunk  and in no state to rationally  judge another person’s drunkenness or appear as credible witnesses. .

Particularly pernicious is the recent introduction into English courts  of the practice of allowing women alleging rape to simply say  they were too drunk to remember  what happened with this being  taken as evidence of an inability to give consent . It emasculates the defence of any defendant claiming that consent occurred because, intended or not, it is a  most efficient way of avoiding meaningful cross-examination by the defence. What could defence counsel  ask the alleged victim  if she says she has no recollection  of what happened  and sticks to the story?  If the alleged victim  has a past history of sleeping around  defence counsel  might make something of that (although judges have been primed to treat such questioning with hostility),  but they  would not be able to attack the question of whether she had given consent if consent is not dependent on what the alleged victim says but her  physical  state at the time of the alleged rape.

It is also very important to understand that having no recollection of what happened after drink has been taken does not mean that the woman was not capable of saying yes.   It is quite possible for a woman to have given consent  having taken a good deal of drink and yet be unable to remember what  happened  the next day either at all or with any accuracy.   This is common knowledge. Most British adults at some time will have gone out for a heavy drinking session  and woken up the next day unable to remember  what happened the night before. Nonetheless,  when meeting up with the people they were with during the drinking bout they  discover that they were fully  conscious and physically capable during the time spent drinking. They may also have been sober enough to do something complicated such as having  made a  journey home which required them  to catch the correct bus  or  train, get off at the right station and  find their way home , yet have no recollection of doing so.

What goes for alcohol applies to drugs, both in terms of the incapacitating effects and changes in psychological state. However, with drugs the varieties of mood and consciousness alteration is much more varied.

But the dangers for  men go way beyond drink  and drugs. The guidance will also cover  circumstances where “a suspect held a position of power over the potential victim – as a teacher, an employer, a doctor or a fellow gang member” , the woman had mental problems or learning difficulties or the rapist was a husband or partner on whom the woman was financially dependent.  In  all these situations the judgement would, like the question of whether someone is sufficiently incapacitated by drink or drugs , be very subjective.

Why is only the man to be held responsible?

The onus to be responsible  is all on the man.  What about the woman’s responsibility to  take account of the  man’s  intoxication?  If a woman can be deemed to be morally incapable  through drink or drugs of being responsible enough to give consent why should not a  man in the same situation be given the same licence? For example, suppose a woman goes back to a man’s home after an evening’s drinking, could it not reasonably be argued  that the woman was behaving irresponsibly because (1) she must have known that the mere fact that she has gone back to the man’s home signals to the man that sex is on the cards and (2) the woman is going to the man’s home knowing that the man is drunk enough  to have the normal moral brakes off?  Why should the woman effectively be  treated as having no moral dimension in such circumstances?

The coaching of witnesses

Not content with grossly changing the evidential burden for rape,  the DPP has also in practice  relaxed the rules on coaching prosecution witnesses , something which will have a particular value for the prosecution in rape cases because so much rests on the performance of accuser and accused when giving evidence.  The DPP announced the change in this fashion:

‘ Miss Saunders said: “This aims to give prosecutors the confidence to engage with victims and witnesses without fear of any allegations of ‘coaching’ or going too far.

“It’s about telling them what the defence case is likely to be in general terms. But it is not about telling them what their evidence should be.”

Miss Saunders said the guidance was likely to play an important role in rape and other sex cases but also in assault or harassment prosecutions.’

Even giving such general information would amount to the  coaching of witnesses  because they would not come fresh to the witness box, and  human nature being what it is the odds are that if you give people half an inch they will take a mile or at least substantially more than an inch.  Even as things were before this  change  you can bet illicit coaching goes on, especially on the part of defendants and defence witnesses..

Why does this matter?  The coaching of witnesses  in England is considered to be  forbidden, although the legal  position is not entirely clear.  Nonetheless, it is generally accepted that coaching should be avoided. There is an excellent reason for this: the evidence a witness gives is meant to be their honest recollection based on what they experienced.  That can be simply their unaided memory or what they have written down in for example a diary or statement.   If they are rehearsed, as they can be in other jurisdictions such as the USA,  the evidence they give will inevitably be different from what they would give if un-coached. For example, knowing that sexual history of an alleged victim will be  part of the defence will most probably set the  alleged victim thinking of how she can deal with questions about  any embarrassing or compromising behaviour  in her past in a way she  probably would not do if left unaware of what  the defence against her accusations was to be. Coaching  also robs counsel of the element of surprise when cross-examining, a major  weapon in their armoury.

The anonymity of alleged rape victims

All of this new distortion of the English judicial system comes  on top  of the  hobbling of it by granting  the alleged victims of sexual offences  anonymity for life whether or not a conviction is obtained.  This amounts to secret justice which is wrong in principle  because how can the public judged that justice is being done. In the case of rape allegations this secrecy could also severely disadvantage a defendant.

The argument is routinely made by the politically correct  that publicising the name of the accused names in rape cases   is useful  because it may persuade other women to come forward to say that an accused has also sexually molested them .  But the same argument applies to making the names of alleged victims of rape public,  because a woman may have a record of making such allegations and publicising her name and that fact she is making an allegation of rape could  persuade  people who  were the subject of false allegations of rape or who simply know someone who has made such claims before to come forward to cast doubt on the veracity of  an accuser.

Why is this happening?

It is because the rate of successful prosecutions is low compared with the number of claims of rape made to the police –  approximately 1,000 successful prosecutions  in the year to June 2014 . Almost inevitably in these politically correct times there is pressure from those with power wealth and influence to treat the low  rate of conviction not as a natural consequence of  the difficult nature of the evidence  –  the man’s word against the woman’s – in most cases,   but as a flaw in the way the police and the Crown Prosecution Service (CPS) handles rape allegations. The fact that we have a woman DPP probably acts as a catalyst for such changes.

Nor is this likely to be the end of alterations to rape allegations. Saunders appeared on the  BBC Radio 4 programme Unreliable Evidence on 27 January 2015. The programme was devoted to the changes to the way rape allegations are treated. The question of false rape allegations came up and there was  a serious discussion amongst the contributors to the programme about changing the charge for such crimes  from perverting the course of justice (a heavyweight law carrying a maximum of life imprisonment) to the much less serious charge of wasting police time. If such a change did take place it would be wholly wrong because a false accusation of rape can blight a man’s life. If anything the sentences such women get are far too lenient because they are so much less than the average rapist gets. There is a good case for saying women convicted for making false accusation should receive the same  sentence the person they have falsely accused would have got if they had been wrongly convicted of rape based on the false evidence.

Much was made of the suicide of Eleanor de Freitas, 23 who took her life after being charged with perverting the course of justice by making a false accusation. This was an exceptional case because this was originally a private prosecution  which was then taken over by the CPS, a very unusual occurrence.  This suggests the evidence of a false accusation must have been very strong . Saunders responded to the suicide with this:

 “I am very saddened by the tragic death of Eleanor de Freitas.

“I have asked the team which dealt with this case for a full explanation which addresses all of the de Freitas family’s concerns.

“I appreciate the family’s unease which is why I am looking at this personally in order to satisfy myself of the detail surrounding all the stages of the case.

The death of a young woman is a very sad  thing but a justice system cannot be run on the basis that people may or may not be suicide risks. Suicides to avoid going to court occur in many types of cases, for example, those involving accusations of  paedophiles.  Few if any people would suggest that prosecutions  of such people should not go ahead because they may kill themselves.  It is true that Eleanor had been diagnosed with bi-polar disorder but if everyone diagnosed  with bi-polar or other mood altering mental condition was excused prosecution I suspect that huge numbers of  criminals would miraculously  suddenly develop the symptoms. In the end people have to take responsibility for what they do  unless they are so mentally incapacitated that they do not realise what they are doing. A prime example of this is  committing crimes whilst  under the influence of drugs or alcohol.  The drugs or alcohol are not considered an excuse for committing a crime.


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3 Responses to Molesting justice

  1. Colin Ray says:

    It seems that yet again, the man is being placed between a rock and a hard place (no pun intended). Perhaps there are only two answers. One, the man ignores women completely, which is highly impractical and detrimental to the regeneration of the human race and; Two, the man carries with him at all times a breath test kit which he requires the woman to take before any act of sex is carried out and then demands she signs a legally recognised consent form.. Not a very romantic proposition at all. However, these proposals may satisfy the increasingly authoritarian demands of the far left and the feminist movement and appeal to their love of paperwork.

  2. David Brown says:

    Gorgon wants more men turned to stone. Alison Saunders the CPS boss wrote an inane defence in The Times of the decision to prosecute the Coronation Street actors Michael Le Veil and William Roach on very dubious rape charges. The jury aquited in a few hours in both case. In the first it was the mans daughter put up to it by his embittered ex-partner , the witness against Roach had inconsistant stories. The CPS did not care because their motive was to divert press coverage from the trial of Muslim grooning gang also in Manchester.
    The Police are of course ordered by the home office to try and get more convictions for rape. In the post war world they where likewise ordered to prosecute more homosexuals hence the Alan Turing case. As stated in Channel 4 documentary Britians Greatest Computer Scientist there was a four fold increase in Police charges for homosexual acts during this period.
    Saunders is a very dangerous probably evil women who will wreck the lives of many innocent people much like a real rapist. She will not care about her victims either.

  3. William Gruff says:

    Before we waste sympathy on the death of a lying little bitch and obvious attention whore we should consider whether ‘The Police’, the CPS and Alison Saunders would have been moved by the suicide of the man she had falsely accused. I rather think his death would have been construed as an admission of guilt and it would certainly have been greeted with hysterical joy by misandrous feminists.

    There must be a specific serious criminal offence of making a false rape allegation and a prosecution for that offence, as well as for attempting to pervert the course of justice, must be automatic, whether or not such actions lead to the suicide of the accused. I too favour giving women who make false rape allegations the same sentence on conviction as the man she has falsely accused. I also think there should be a register of such women which men can consult before deciding whether a relationship with a particular woman is a safe proposition. We might reasonably consider whether such women should be committed for life to an institution for the criminally insane.

    The death of Eleanor de Freitas means one less serious threat to an unknown number of wholly innocent men.

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