Tuesday, June 16, 2009

The jury's still out on hopes of rape victims for justice

This is part 3 of 3. Comments will be interspersed in bold.

The jury's still out on hopes of rape victims for justice.

IT has been specially designed to resemble a normal living room with comfortable furniture and low-key decor rather than the inside of a police station.

For many women reporting a rape in the Capital, the facility is where they will first recount details of the attack to specially trained officers from the Amethyst sex crimes team.

The rape suite at the unit's west Edinburgh base was created so traumatised victims could be interviewed with as much sensitivity as possible.

So, before any investigation is conducted, they are already "traumatized victims." Right.

It's here that officers gain as much evidence as they can to present in court, something they did 170 times in 2007/08. It is a time-consuming and complicated procedure, and one which new figures suggest is more often than not in vain.

Of those 170 cases, only 17 reached the inside of a court room in the Lothians, and just five saw the attacker found guilty.

Could it be possible, that only 17 reached the inside of a court room, because a majority weren't rapes? Or that in a he said/she said situation with no other evidence, that it SHOULDN'T be prsoecuted?

It is a common story. In the last nine years in the Lothians, there were 1546 police reports over alleged rapes handed over to the procurator fiscal but ultimately only 65 people were jailed – four per cent of the total number accused.

The number of prosecutions for rapes compared with the alleged crimes remains low, with Scotland showing one of the worst records in Europe.

Tory Lothians MSP Gavin Brown said: "These figures are shocking and a clear demonstration that far too few victims are getting the justice that they deserve.

Once again, this comment presupposes guilt for the accused, and that all complainants are "victims." It is breathtaking in its prejudgment.

"It is of little surprise that many instances go unreported and that itself is also a massive worry. The effects on the victim must be absolutely devastating."

More than a year ago, the Lord Advocate, Elish Angiolini, told a Rape Crisis Scotland conference that the country's rape laws were "among the most restrictive in the western world".

This started a massive overhaul of the sexual offences laws in Scotland which has sparked debate among legal experts.

Unveiled a year ago, the Sexual Offences (Scotland) Bill is currently making its way through parliament. Based on proposals from the Scottish Law Commission published in December 2007, it replaces the common-law offence of rape with a broader statutory offence of a requirement for "reasonable" consent.

"Reasonable" consent means a reasonable person in the situation of the accused male. There is a wide range of conduct that falls within the realm of "reasonable" under the law -- and it does not mean whatever the alleged victim says it means.

The new law specifies that there is no consent if someone is "incapable of giving consent" through intoxication with alcohol or any other substance or if the victim is asleep or unconscious.

At this point, if a man was drinking before the sexual incident, I expect to see law enforcement arrest the woman for rape, as he would be "incapable of giving consent," just as they will a man.

At present, an accused person must merely have an "honest or genuine" belief that a victim consented. In future, that must be a "reasonable" belief. It would not be enough that an accused in a rape case should be able to maintain that they had an "honest" belief in the victim's consent if that is not a reasonable belief.

But this cuts both ways: from now on, a man might actually believe he is committing rape, but if an average prudent person in his position would think otherwise, he must be cleared.

To aid juries, a list of scenarios where consent cannot be said to have been given would also be provided. In the past, juries have sometimes concluded that a woman gave implied "consent" to sex merely by wearing provocative clothes or taking a man back to her room.

Clothing isn't consent. That is a ridiculous idea. If she takes a man back to her room, without being forced to, and at no time does she say no or try to stop sexual activity from taking place, then yes, "consent" has been given.

But Rape Crisis Scotland said it was worried by the introduction into law of the concept of "prior consent" to sex.

Spokeswoman Sandy Brindley said: "If these provisions become law, there is a strong possibility that the Crown will also have to prove that the complainer didn't previously give consent. The notion that someone can give advance consent to sex at 6pm and that this consent should still apply at 1am when they are incapable of giving meaningful consent is absurd."

Shouldn't the state have to prove that consent wasn't given? Otherwise you are automatically presuming that it wasn't, and you have concluded that someone is guilty, without any form of investigation. And the implication that at 1 am someone is incapable of giving "meaningful consent" (whatever that is), is laughable. It automatically assumes that activity took place that incapacitates the individual. While I agree that someone can change their mind over the course of 7 hours, it doesn't automatically mean that they ARE incapable of giving consent, or that they DID change their mind.

Rape Crisis Scotland has maintained that an independent inquiry is needed to ensure every aspect of the system – from the police to the courts – was no longer failing victims. The Crown Office has carried out a detailed review into rape prosecution, while the Association of Chief Police Officers in Scotland undertook its own investigation. Both produced a list of recommendations which are being implemented. For example, prosecutors and fiscal service staff in Scotland have been undertaking training to boost the chances of rapes being successfully prosecuted.

By this summer, it is hoped that every Crown Office representative will have to complete the training before they can take charge of a rape prosecution.

Legal experts have argued that more needs to be done, and say a vast number of rape victims will continue to be denied justice unless the requirement for corroboration – two separate sources of evidence, for instance the victim's statement and forensic evidence – is removed.

So, lets get rid of those pesky little things called evidence, and just on the say so of one person, throw another person in prison. Any he said/she said scenario will need to go to the jury -- and if she's a good enough liar, he will go to prison for decades. This is possibly the scariest thing to be suggested in the western world, and paints a target on every man walking around today. Sadly, it is the law in the USA currently.

Indeed, Ms Angiolini suggested the need for corroboration should be watered down to boost the number of rape convictions while speaking at a major conference on sexual offences last year.

Watered down? As it stands now, simply someone's word is enough to get someone arrested and put on trial. How much more "watered down" can you make it?

Others in the legal profession are not so keen on the weakening of a central pillar of Scottish law, adding that such a revamped system would result in more wrongful convictions.

I don't think any "reasonable" person would disagree with this. These changes are ripe for an increase in false accusations. Hopefully, this won't make it into law in Scotland.

A Crown Office spokeswoman said: "The prosecution of rape presents specific challenges in Scotland due to the narrow definition of rape and the fact that it requires corroborated evidence.
"A number of strategies which aim to improve conviction rates in sexual offences are currently being pursued."

Whether the proposed changes will lead to an increase in convictions in the Lothians, the jury is still out.

I think it will increase the number of convictions. The only problem is, it will increase the number of innocent men (primarily) who are convicted, not necessarily those who are guilty.