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November 14, 2007

Mr Cameron and the Rapists: Christie Davies despairs that Mr Cameron has once again made a fool of himself by taking up yet another fashionable left wing cause- getting more prosecutions in rape cases

Posted by Christie Davies

David Cameron has recently pronounced that a future Conservative government will get tough on rapists. He thus sounds tough on crime - but in a caring, considerate way. Professor Christie Davies considers David Cameron's announcement - and asks, does David Cameron ever think beyond the next soundbite?

Davey Cameron is once again stumbling round in haze of muddled confusion. He is calling for stiffer sentences for rapists which is perfectly reasonable and for more of those accused of rape to be convicted, which shows he lacks any understanding of rape trials. By linking these objectives he has once again shown that his thinking has never risen above the shallow emotive rhetoric of the Oxford Union.

Thanks to the latest Cameron idiocy, we will now see even more intense pressure to change the rules yet again in regard to the conduct of trials for rape. The election of Cameron will mean that once again the Crown Prosecution Service, the Ministry of Justice, Ministers and Law Officers, "concerned" MPs and members of various pressure groups will press for changes that make it easier to get a conviction at any cost.

There is nothing new about this. Our rulers have been changing the rules in extremely dubious ways so as to favour the prosecution for more than a decade, the most recent major attempt being the Sexual Offences Act of 2003. Despite all these efforts, the ratio of successful prosecutions to cases prosecuted and to the number of allegations made to the police has steadily declined. Arguably too many weak cases are being prosecuted by the gung ho CPS.

Now Cameron has thrown his weight behind the demands for even more drastic warpings of procedures in order to assist the prosecution and disadvantage the defence. One would be less inclined to object to these demands if those making them were prepared to admit openly and without prevarication that the price of getting more successful prosecutions of the genuinely guilty by such means is that a large number of men will be convicted who were in fact innocent.

The cliché on which common law criminal justice systems are based is that "it is better that a hundred guilty men be acquitted than one innocent man convicted". In practice the system is sufficiently imperfect and uncertain that there is bound to be a trade-off and some innocent persons do get convicted and sent to jail. Indeed the innocent man convicted of rape may be more harshly treated because he refused to admit guilt when accused or later, forced the complainant to give evidence and showed no remorse either when sentenced or later when seeking parole.

A further dishonesty of those like Cameron who want to skew the law is that they will quietly connive at the conviction of the innocent in the case of rape, even though they trumpet the principle of the presumption of innocence for crime in general, including serious crimes of violence and even when someone has been killed.

In the late 1960s and early 1970s a colleague and I conducted research into mistaken convictions, which was published in 1973 as the book Wrongful Imprisonment. It was clear even then that there were many convictions in sex cases where the person convicted had not done it, but in which, by the very nature of the offence, it was impossible to have the conviction overturned. In an earlier study C. G. L. Du Cann quotes Travers Humphries saying that he:

had many cases of a woman who from envy, hatred and malice deliberately charged another person with a crime, knowing that person to be innocent and gave false evidence to support that false charge. Charges of sexual indecency by women, quite without foundation, were in his [Humphreys'] fifty years of experience of crime so frequent that he came to think of them as one of the commonplaces of crime.
We are not looking at a new problem. It is interesting also to note the findings of H. Kalven and H. Zeisel who conducted a survey of Queen's Bench judges, which they published in 1966. The survey indicated that the judges thought that juries convicted where they would have acquitted only in a very few cases, of which sexual offences formed the only coherent group. The implication is that it was only in sex cases that juries systematically subscribed to myths that led to false convictions. This is exactly the opposite of what is being said by the leading lights in the Crown Prosecution Service who seem to think that juries refuse to convict in rape cases (but apparently not in other kinds of criminal cases) because they cling to myths that favour the defendant.

It is quite possible that social changes have led to a shift in this respect, but it is up to the CPS to prove their case. It may be that juries prior to the 1970s would accept a complainant's story that she had not indulged in casual sex because such behaviour was relatively infrequent. Today when young women are routinely having sex in the most unlikely venues with men they know only slightly if at all, juries are more sceptical about claims to virtue. The problem is not that most complainants are being untruthful but rather that the jury has no way of distinguishing between those who are telling the truth and a substantial minority who are either muddled, imaginative or vindictively mendacious.

In essence the jury has an insoluble problem and under these circumstances it is inevitable, indeed desirable, that the jurors should give the defendant the benefit of the doubt. Should they convict, the defendant will almost certainly get a custodial sentence for rape (98% do) and the jury wants to be absolutely certain that there was a genuine absence of consent. But in the nature of things an absence of consent is very, very difficult to prove and juries often decide that it causes less harm if the complainant feels aggrieved at an acquittal than if they convict when they have reasonable doubts and a possibly innocent man ends up in jail.

Juries might well be more likely to convict in cases where an allegation of rape made against an associate of the complainant or even someone with whom she has had a recent sexual relationship, if they knew that convicting the accused would not necessarily lead to a custodial sentence. It would mean that they would be more willing to risk bringing in a guilty verdict much as they did for a variety of crimes when they were no longer subject to the death penalty. They probably also take the view that such a person, though culpable, is not a threat to the general public and that there is little point in locking him up. This view may be abhorrent to Mr Cameron but in a democracy it is the juries who decide; they are the people and he is merely one of the people's servants.

We know from the American experience that changes in the law designed to make it easier to obtain convictions in rape cases have led to a significant increase in the number of instances of false imprisonment for this crime. Huff, Rattner and Sagarin in their study Convicted but Innocent have noted that of the cases in their initial data base only 12.5% involved rape, but that after 1961 the number and proportion of wrongful convictions in rape cases rose and by the 1990s had become 35.7% of all wrongful conviction cases. The connection is an uncertain one, but the figures certainly suggest that the easier it is to get a conviction, the more likely it is that it will be a false one.

Just as the consequences of rape can be devastating for the victim, so too the effect of a false conviction for a sexual offence can wreck the life of an innocent person. These crimes carry a peculiarly strong stigma, not merely among the respectable public but even among the villains who fill our prisons. Even if an innocent person is put on trial but acquitted, it may seriously damage his career, social standing and reputation. This is an obvious point but it does not seem to be one that has even crossed the minds of those like our Dave who are agitating for a lurch of the scales of justice in favour of the prosecution in respect of this one crime alone.

One wheeze of those zealous for more prosecutions is to bring in "experts" to re-educate the juries, that is to say the very people whose independence gives the system its democratic legitimacy.

It is difficult to see what this can accomplish, since all the experts can do is to make general statements about why genuine victims of rape may delay reporting the offence, why they produce confused and contradictory accounts of what happened and often do not put up much resistance. These points can already be made perfectly effectively by the prosecuting barrister. The expert, who will not even have met the complainant, will be able to say nothing about the particular case being considered by the court but will merely add a false authority to assertions that are going to be made in court anyway. What is being provided here is not expertise of the kind that might be given by a specialist in DNA evidence or on the perils of identification.

If such experts are to be brought into court, then the legal aid fund should also routinely pay for the defendant's solicitor to call his or her own expert witnesses to rebut them. Such witnesses would say that false claims are common, that people's memories are fallible and that everyone re-writes events in their minds in the interest of their own self-esteem. None of this would cast doubt upon the particular testimony of an individual complainant but it is relevant in the same sense as the witnesses that the Crown Prosecution Service wishes to call.

Faced with a particular case the jury will still always have the dilemma of deciding which person of the two is telling the truth, the complainant or the accused. Indeed, it may even be the case that they are both telling the truth. Human communication is both clumsy and fallible and the accused may well genuinely, reasonably and understandably believe that consent was given, whilst this was not what the complainant intended. The problem is that the accused can only fairly be convicted on the basis of his own guilty mind, and that is very difficult to assess.

It is even more of a problem where one or both of the parties have been consuming ethyl alcohol, in the form of beer, whisky, rum, cider etc. It is a very widely taken legal drug, commonly used to produce a pleasurable loss of inhibition of the restraints that normally prevent us from misbehaving. It is curious that a complainant who is drunk is not seen as culpable in the way that a drunk driver or someone who commits criminal damage is. When people are drunk they often do things that they bitterly regret afterwards and it is a great temptation to blame someone else.

An extreme version of this was the moral panic about women's drinks being spiked with rohypnol. We can see in retrospect that the women concerned were quite simply drunk, not rohypnolised but plain, ordinary sozzled. Indeed it may be added that women may well deliberately drink to excess in order to repress their inhibitions and to have sexual adventures they would not normally contemplate, even if the consequences were sometimes not what they intended.

Any decisions such women make while drunk are as valid and voluntary as a drunken decision to get into the driving seat of a car or to punch an innocent stranger on the nose. In such cases the drunken person may well not remember the next day what he or she did or agreed to the day before when he or she was well and truly Southwarked. Good Bishop Tom got into someone else's car when pissed out of his mind and in front of several witnesses threw children's toys out of the window while crying out:

I am the Bishop of Southwark and this is what I do.
He now claims amnesia, but can we not say without qualification that he chose to get into the car of his own free will? Can we not infer deliberate toy-hurling from his little ditty "this is what I do", regardless of his failure of memory the next day to the point where he claimed he had been mugged, thus rewriting history and transferring the blame for his state to a male person unknown?

Nearer home, my lady wife and I went to a party after a conference held in a hotel in Kent at which many of the people were somewhat drunk and one of them, a notorious groper, hence forward referred to as Moriarty, was very drunk indeed. The next morning while we were enjoying the hotel breakfast, we were joined by Moriarty, who seemed a little the worse for wear. A few minutes later my wife, a keen ornithologist, went upstairs to pack her binoculars and bird books ready for our excursion to the Isle of Sheppey. The minute she had left the table, Moriarty got up, saying suddenly that he had to make an urgent phone call. He returned. I finished my breakfast, collected the wife and set off in the car. She was helpless with laughter. She said,

Do you know who phoned me before we left?
I couldn't guess.
It was Moriarty. He couldn't remember whether or not he had tried to grope me at the party last night, and so he wanted to apologize just in case.
I said:
She replied:
Of course he didn't. I was sober, he was drunk and I took evasive action so that he never got anywhere near me.
At this point I decided that the disgusting Moriarty had probably groped someone else, who was now about to come down to breakfast in a filthy temper and push his face into his porridge. The point is that Moriarty was quite compos enough deliberately and consciously to go round fondling bottoms that did not belong to him but could remember very little about it the next day.

What is different about rape? One might say it is caddish of a man to seduce a drunken woman and that he is a complete rotter but rape it ain't

In a sense we are wrong to ask the question, did someone consent or not consent, as if there were a sharp and discernable dividing line between them. In all other areas of life we are conscious of making agreements about which we feel ambivalent, uncertain and wavering. It is simply that in the case of alleged rape it all happens rather quickly and without witnesses.

If we were to put agreement or consent on a scale going from 0 to 100, where 0 is total angry refusal and 100 is ecstatic whole-hearted acquiescence and 50 is the score that divides rape from consensual intercourse, then most of the time juries are trying to make difficult judgements about what goes on between 40 and 60. When it is seen this way it is no wonder that they tend to acquit. It is impudent and undemocratic to say that high-minded leftists are in a better position to decide this matter than the ordinary men and women on juries.

It is also fair to add that it was the high-minded who abolished the property and education qualifications that were required before someone could be selected for jury duty. If in some areas juries decline to convict because they are stupid, gullible and hostile to authority, this is because the very lowest elements in our society are allowed to serve on them, provided they don't have a criminal record which the police are able to retrieve from their second rate computer system. Jurors probably find it far easier to understand what the issues are in a rape case than they do in, say, a trial for fraud or a complicated drug importation case or exchanges of racial abuse.

Yet in a democracy, it is, at the end of the day, the jurors' perception of what constitutes rape and what does not that must prevail and not that of appointed officials. The latter merely derive their legitimacy from the trust placed in them by politicians like Mr Cameron who derive their power from the people. The jurors are the people themselves.

Rape and other sexual offences are the only ones which organizations such as the Ministry of Justice and the Crown Prosecution Service wish to maximise both in numbers and in seriousness. The old Home Office surveys regarding crimes of violence were and are always given a spin that will make Britain look a less violent society than it really is.

The reason for this was and is partly to make the government of the day look good, but was and is mainly a product of the Home Office's - now Ministry of Justice's - anti-prison and anti-punitiveness ideology. The Ministry of Justice, will do anything to avoid locking up violent criminals, which is one reason why there are so many of them about and why levels of violence steadily go on increasing. The Ministry of Justice, like the old Home Office, is terrified that the anger of the public - with a little help from the popular press - will force the politicians to consider raising sentences all round and depriving our ultra-liberal judiciary of chances to be lenient. So the level of violence and its impact has to be played down.

In the early 1980s responses to the British Crime Survey suggested that there were about 1,800,000 crimes of violence against persons over the age of 16 in any one year (many of them not reported to the police). However, readers of the report were officially instructed to be reassured that they need not worry. They were told that in only 12% of these assaults did the victim need medical attention and that in only 1% of cases was the victim admitted to hospital. A simple calculation shows that 216,000 individuals who had been attacked did require medical attention and that many thousands had ended up in hospital. Talk about spin!

Their latest trick is to try to take many cases of minor assault out of the figures altogether so as to massage levels of violence downwards. At the other end of the scale we are going to have degrees of murder so that a more lenient way of dealing with people who deliberately slaughter their fellow human beings can be inserted into the system. Already many unlawful killings that in the past would have been classified as murder are now treated as manslaughter and in this way the public is deceived into thinking that the number of murders is not rising as fast as it really is.

There has been one exception to this general policy - rape and sexual assaults. In the early years of the British Crime Survey the incidence of rape and sexual assault reporting was very low, though probably reasonably accurate, but this led the compilers to fear a barrage of abuse from their feminist colleagues. Accordingly these figures and these figures alone were adorned with asterisks saying that they were underestimates because women who had been assaulted still felt too embarrassed and too besmirched by the incident to admit them to a sympathetic female interlocutor.

Over time methods of eliciting information were changed, questioning made more persuasive, one might almost say more manipulative, and the proportion of women who reported that they had been raped has gone up to the absurd figure of 4.9% of the general female population, a figure that Mr Cameron is stupid enough to take seriously. It is particularly unbelievable because it is almost exactly half of the total figure for any kind of sexual molestation. Is anyone going to believe that gropers outnumber rapists by a mere 2:1?

The Ministry of Justice does not seem to be afraid that these figures, manufactured to satisfy the feminist lobby, could lead to a substantial demand for extra prison places which it is in no position to provide. We are not going to see talk of "deviancy amplification" from criminologists or articles entitled "Rape as a Moral Panic".

The entire history of the attitude of the criminological industry towards rape cases is a bizarre and dishonest one. In the United States the great liberal progressive cause used to be the unfair trials of black men who had raped white women in the Southern states. The liberals disapproved of the white women's accusations against the members of a downtrodden victim class and went so far as to suggest that the women had invented their stories under social pressure.

But if we accept that some of those women invented accusations and corroborated them with substantial detail in court for reasons of malice or to repair their own moral character, then why should we assume that in Britain today all women always tell the truth in such matters?

It is all a piece of sleight of hand depending on who can lay claim to the prized title of "underdog". In the past liberals tended to see middle class women defending their decency as the persecutors of the rough trade males whom they first tempted and then refused. The "rapist" was a macho lower class hero trapped by the middle class inhibitions of his victim about allowing access to her sexual property, rather in the same way as the lower class burglar of middle class homes is trapped by a hierarchical and oppressive social order. It only changed when surveys showed that ordinary working class people suffered most from the depredations of criminals of all kinds, and when women replaced the working classes as victim flavour of choice.

A similar point may be made in relation to paedophiles. In the 1950s and 1960s criminologists always tried to talk down the incidence of sexual assaults on children and the psychological impact that such assaults had. We were always being reassured that the main damage was done when adults made a fuss about the incident and the child was badgered in court; the actual incident itself was unimportant by comparison. This was once again an attempt by the radical criminologists to play down crime and to undercut middle class morality.

A very substantial proportion - perhaps nearly a half - of sexual assaults on children are sexual assaults on boys, obviously perpetrated by homosexuals. Given that homosexuals constitute only 1-2% of the population their interest in child sex must be far greater than for the heterosexuals. But homosexuals are an excluded victim group who must be protected and a number of leading criminologists were homosexuals. So sexual interference with children had to be played down.

Matters changed for two reasons. The first was that female criminologists took up the cause of children who had been assaulted and treated it as an extension of sexual assaults against women, regardless of the gender of the child. At joint conferences held by gay men and lesbians working together there were bitter interchanges and disagreements in which the gay men pressing for legal access to boys and the lesbians angrily opposing this. Children replaced homosexuals as the group defined as victims to be protected.

The second reason was the great outburst of paedophile scandals within the Roman Catholic Church involving men in positions of authority over young boys. At this point the priests and Christian brothers became the villains and the criminologists became very reluctant to draw attention to the fact that the greater part of the clerics' activities involved choir boys, boys in industrial schools and orphanages and boys in Catholic boarding schools. A fiction was now manufactured that these clerical child molesters were utterly indifferent as to the sex of the young person being assaulted and not really homosexuals at all.

We can now see the extent to which our perceptions of crime and of the consequences of crime are manipulated by a powerful left wing establishment to which the hoody-loving Mr Cameron clearly now belongs. In the case of rape prosecutions the key group to look for are those feminists whose motto is "All men are rapists and that is all they are". It is a characteristically silly and bigoted statement - imagine how people would perceive a statement of this kind if it were applied to an ethnic minority.

There is a sense in which under extreme circumstances all men could be rapists, just as all women are capable of committing infanticide. All women are murderers of children and that is all they are? It would not surprise me if a right to life anti-abortion fanatic really believes that. Most women do not believe that all men are rapists. Probably the best advice one could give someone about to be prosecuted for rape would be to employ a female barrister and to hope that there will be several women on the jury.

The feminist campaigners are able to put pressure on the politicians, who in turn lean on the Ministry of Justice and the Crown Prosecution Service, who are not exactly unwilling to be leaned on, to get more convictions for rape regardless of questions of truth, equity and justice.

No one ever seems to ask what is the purpose of getting the extra convictions. From the supposed victim's point of view, she wants a conviction because she wants her story to be believed. Some feminists want convictions out of sheer punitive vindictiveness rooted in a hatred of men.

But what is the point of the conviction from the point of view of the general public? The main gain from convicting someone of a serious offence is that you can then lock him or her up. If a regular burglar or robber or violent drunk is kept away from the public for a considerable period of time, then we are protected from them. The problem with rapists is that the crime of which they are accused is not a homogenous one.

In some cases it is quite clear that the public has to be protected from a convicted rapist because he is quite likely to try and do it again. Yet in such cases one can see no enthusiasm on the part of the Justice Ministry or the Crown Prosecution Service or the politicians for handing out suitably stiff sentences and they will over-ride the newly punitive Mr Cameron. Worse still he will roll over and let them. How many new prisons are you going to build, Dave? I want to see a quarter of a million prison places and most of them filled. What is your figure, Dave?

It is distressingly common to read an account of a very nasty rape where the convicted man gets eight years and you know he is only going to serve five. In a large number of other cases he gets five years and you know he will be out after three. They will be back on the streets and in the nightclubs and a menace to women. Why are there not more rapists actually serving sentences of fifteen or twenty years, securely locked up for decades? The late John Parker, the MP for Dagenham and President of the Fabian Society used to argue that rapists facing very long sentences should be offered the option of castration instead.

They could be given two glass balls instead,
he told me. Well it would be cheaper and more effective than prison.

The argument about containment does not apply in the same way in cases where intercourse has taken place between two individuals who know one another and where there is a dispute about whether there was a requisite degree of consent. Even if you do get a conviction, what is the point in locking "the rapist" up?

Now that there is serious discussion of establishing different degrees of murder with the lesser murders not attracting a life sentence, why can we not divide "rape" into two categories, the lesser of which is given a new name. That in essence was what was done when the offence of "causing death by dangerous driving" was invented, precisely because juries would not convict of manslaughter in motoring cases. What is needed is a new offence with a new name which does not carry with it the possibility of a custodial sentence, which allows juries to say, "we cannot prove against you that you did not genuinely think that you had the woman's consent but we feel that you behaved recklessly".

Alternatively we could allow juries in rape cases to bring in a Scottish type verdict of "not proven". From the point of view of the complainant a verdict of not proven would be much less of a rebuff than a simple finding of not guilty. A person against whom a verdict of not proven rather than not guilty was recorded would incur a degree of social obloquy for foolish if not criminal sexual behaviour.

Under either of my suggestions juries would be far more likely to bring in verdicts critical of the accused if they knew that the severe penalties that rightly follow a rape conviction could not be imposed. Such moves might not satisfy irate feminists or the zealots in the Crown Prosecution Service or silly Mr Cameron but, quite frankly, who cares what they think anyway?

Dr Christie Davies is co-author of Wrongful Imprisonment, 1973, and sole author of The Strange Death of Moral Britain, 2006.

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Why can not we take the view that wrongly convicted rapists die to preserve the social order in the same sense as those killed in war time ?
Why should third time rapists not be castrated ? The chance of three mistaken convictions on different occasions is negligable.
Both of these proposals would reduce overall misery and increase satisfaction because they would lead to less rape. Cameron and the feminists are right It is only the fashionable nonsense about human rights that gets in the way of doing this.

Posted by: hilary at November 18, 2007 06:47 PM

Dr Christie forgets one of the central truths of feminism: There are no innocent men. All are complicit in the patriarchal oppression of wimmin and the more of them go to prison the better. Wimmin, on the other hand, should not be in prison at all, being invariably the hapless victims of men and patriarchal societal structures.

P.S. To adapt the above to anti-racism, simply read "whites" for men, "racist" for patriarchal and "ethnic minorities" for wimmin. Liberalism is a very green creed -- it recycles at every opportunity.

Posted by: JimBuck at November 21, 2007 06:54 PM

That story about me (thinly disguised as Moriarty who is in fact Nietzsche ) is untrue.
I was not drunk in Kent. I am a moderate drinker. I do not have roving hands. No one has ever complained about me. I did not have my face pushed in the porridge.

Posted by: seamus at November 23, 2007 06:51 PM

I don't know who Seamus is - but I really did think Moriarty was about me. Although for the life of me I cannot remember the supposed incident - although that might have been the consequence of the night before.

Posted by: The Professor at November 28, 2007 01:13 AM

As the author,I can assure 'The Professor' that he need not worry. The guilty one is obviously Seamus, since the real 'Moriarty' in Kent, a serial groper about whom many women have complained, was Irish but not a Professor. I gave him the name Moriarty because it is the Irish name used by the lapsed Irishman Conan Doyle for his famous villain. Had the real groper been a Professor, I would of course have called him Professor Moriarty after his namesake.
The way Seamus describes himself is exactly the way Moriarty used to at the time. He denied everything in a ludicrous way, even his regular drunkeness . There comes a time when you have to hit denial on the head
How can the Professor both recognise himself as Moriarty and not remember the incident I describe even though the key conversation which he claims to have forgetten took place the next day when 'Moriarty' had sobered up completely and was quite coherent.
Perhaps Seamus and the Professor are the same person but like Jekyll and Hyde, which would also explain their both reading my erudite article, both replying to it and yet not knowing who the other is.
Anyway it shows that the recollections of drunken women after they have sobered up about their supposed lack of consent to sexual congress when blotto are not to be relied on.The government's new proposals in the press today on rape prosecutions are obviously nonsense and it is now clear that all Cammie boy did was to learn of them in advance and steal them for his silly speech. Next thing you know, the government will announce plans to replace Victorian prisons and we will once again realise that Tory proposals are based on double guessing New Labour policy or even eavesdropping or reading computer discs found in a discarded jiffy bag in the street. I've heard of Butskillism but Cambronneism is absurd if that's the right mot Chuck it, Cammie
Christie Davies

Posted by: Christie Davies at November 28, 2007 11:09 PM
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