“Consent” shows it’s the juries who need educating about rape


CourtroomLast week I had a go at the two television companies that were producing programmes based on recreating rape trials with actors playing the complainant and defendant, saying that it was using rape as entertainment. Well, I was wrong, at least about Consent, Channel 4’s offering which was shown last night. This was public service broadcasting, shocking, infuriating and eye-opening, and I hope it has as much of an impact as A Complaint of Rape, the 1982 documentary following a rape investigation by Thames Valley police, which forced the police to change the way they treated rape victims. Consent should do for jury trials of rapists what A Complaint of Rape did for rape investigations. Because, sadly, it seems that the blame for Britain’s dismal rape conviction rate at trial can largely be placed on the jury.

The case presented in Consent was that of two colleagues, away for the night at a work event. Sexual intercourse had definitely happened in the complainant’s hotel room. He said it was consensual “rough sex”. She said it was rape. We saw the lead-up to the event that triggered the allegations, then skipped to the following day. Rachel (the complainant) told Steve (the defendant) that he forced her; he denied it and told her to “get over it”. Rachel had been expecting a promotion – she was shocked to be told that Steve would be promoted to equal status where she would be working with him closely, and therefore she told her boss about the sexual assault. When her boss told her he couldn’t do anything without proof, she went to the police.

On the positive side, the police investigation (using real police officers and doctors) was sensitive and thorough. The victim’s allegations were believed, and they took her seriously. Her injuries were documented, she was examined, and the police arrested Steve very early on. This is a huge change from how rape victims used to be treated, and it should be welcomed. However, the procedure is necessarily very intrusive and distressing. Skipping forward three months, we were told that the Crown Prosecution Service had decided to prosecute. At this point the court proceedings began.

It was fascinating to see the slow, steady pace of a real courtroom – very different from the highly-charged trials shown in television and movies. Watching the questioning of the complainant by the defence barrister was hard – the defence’s strategy was to claim that she had changed her mind after having sex and to call her a liar. Despite the fact that no evidence about the victim’s previous sexual history was introduced (it is now illegal to do this), it is not hard to see why so many rape victims don’t want to prosecute when they are forced to relive a traumatic experience on the stand while being told that they consented and are lying about it. The emotional stress this puts on victims must be intense.

12 Angry MenBut all of this was the warm-up – the hors d’oeuvre compared to the main course, which was the jury’s deliberations. It was in this section that it became clear why so few defendants are convicted of rape in Britain. To be clear, only 14% of alleged rapes come to court at all. These are the cases that the CPS thinks it has enough evidence to win. Of these, fewer than 6% of cases result in a conviction – and this includes the defendants who plead guilty. So only 6% of the 14% that come to court. That’s less than 1% of all reported rapes. There is something very, very wrong here. Consent showed us what it was, raw and open.

Listening to the jury deliberate (and that may be too grand a word for the sheer stupidity, prejudice and assumptions based on personal experience being thrown about in the room) was terrifying. Hardly any of the discussion focussed on the evidence presented in court. Sadly the worst culprits were three female jurors. A young woman who who looked like a cut-price Nicky Hambleton-Jones from 10 Years Younger said that if it happened to her she would have found an “inner strength” to fight off a rapist or at least injure him, so the complainant must be lying. She told the rest of the jury that she had been in a similar situation and had fought someone off, although exactly what this situation was was not explored to see if she had any basis for her opinion. Another strident middle-aged woman said that Steve had behaved “like a gentleman”. A third female juror said they were “both guilty” – although how a man can be guilty of rape and not a rapist wasn’t explored. It was also suggested that she didn’t approve of pre-marital sex at all, which might explain why she thought the victim was also guilty if the man was guilty of raping her. The foreman of the jury said it was “this guy’s future at stake” – and refused to accept that the complainant’s future might be affected by the verdict too because “it’s done”, it was over for her. One man backed the victim, making the point that a 12-stone man can easily subdue an eight-and-a-half stone woman without incurring any injuries, a point that was ignored by most of the others. One brave and quietly determined woman stood up for the complainant, tried to focus on the evidence and kept doggedly asking why she would accuse this man of rape, go through the invasive medical examination and arduous police interview, risk her job and her reputation, if she was lying. Sadly she was shouted down by the others, and they delivered a verdict on which 10 or more of them were agreed of not guilty.

I can only imagine how infuriating it must be to listen to this if you are serving as a juror on a real rape trial. The false allegation rate for rape is the same as for other crimes, but somehow you can’t imagine the jurors on a burglary trial assuming that the complainant was lying for malicious reasons. At least here the defendant was an actor (and all credit to the actors playing Rachel and Steve – they were very convincing in their roles).

I wonder if the women saying that the victim “couldn’t” have been raped because she didn’t have any injuries were in denial about the danger they could face in the same situation. If they could believe the woman was lying, they didn’t have to face up to the fact that someone could easily overpower them or that someone they knew and liked might be capable of the same crime.

Finally, the programme ended by showing us what happened in the hotel room. Rachel was raped. She was initially responsive to Steve’s attentions, kissing him back and flirting, but when she told him to stop, he did not. He held her down and raped her, putting his hand over her mouth and his arm on her windpipe to shut her up, just as she had described. There was no way that he could have mistaken her struggles, her cries of “No!” and “Stop!” for consent. Steve was a rapist. And the jury acquitted him.

I hope the jurors were forced to watch this sequence. I hope some of them re-evaluated their attitudes towards complaints of rape. But we can’t rely on this flashback in real cases – “what really happened” will remain something known only to the people who were there, the complainant and the defendant.

More is needed. Jurors need to be educated about what is involved for a woman who makes an allegation of rape. They need to know about the process the woman has to go through – the hours of interviews, the gynaecological exams, the trauma of sitting in the witness box:

When I interviewed barristers for a recent study, a QC who had represented countless rape defendants said it’s terribly easy to defend in a rape case. Because it is so emotional for the witness and she is so nervous, it’s easy to undermine her credibility in the eyes of the jury – so easy that he began to feel terribly uncomfortable and no longer does these cases.

(Jennifer Temkin, Professor of Law at the University of Sussex)

Innocent until proven guilty and the right to a fair trial are the cornerstones of British law, and we tamper with that at our peril. People accused of rape have a right to a fair trial and to be considered innocent until the case is proven beyond reasonable doubt. However, clearly the system is failing, and the jury’s deliberations in Consent gave a possible insight into why. Perhaps we should have “expert jurors” for rape cases and cases involving vulnerable witnesses (child sexual abuse, for example). Maybe these should be tried by a panel of judges (not that judges are so great when it comes to rape cases). Or jurors should be given training when they are assigned to a rape case to reduce the impact of the pernicious myths. Simple statistical facts, like the percentage of allegations that are later proven to be false, the definition of consent, the definition of rape, for heaven’s sake (there was still a certain amount of the old opinion that only violent rape by a stranger is “real rape” – witness how concerned some jury members were with the fact that Rachel hadn’t marked Steve in trying to fight him off, even while they ignored her bruises), typical behaviour of traumatised people in the aftermath of a trauma.

Consent wasn’t easy to watch, but it showed just how much the deck is stacked against rape victims. I hope it has a wider impact – but I fear that when it comes to women and rape, too many people are still wilfully blind to the reality and more women will suffer because of it.


8 Responses to ““Consent” shows it’s the juries who need educating about rape”

  1. Oh my god. Thank you for posting this. I hope it’s not this way in American courts, but somehow I doubt it could be very different. Do you know if Channel4 puts its stuff on the web or if there might another way for Yanks to get to watch it?
    (psssst: your “blog-whoring” paid off)

  2. Hi trillian (and thanks for responding to the blog-whoring – after a while shouting into the void doesn’t seem all that rewarding!).

    It turns out you can download and watch Consent from the Channel 4 website. You do need to install the 4oD application (http://www.channel4.com/4od//get4od/index.jsp), but it’s free, and once you’ve done that you can search for “Consent” and it will only cost you £0.99 to rent it. I’ve hardly ever been so angry watching a programme… and all that from one short segment in the jury room.

    I hope the American courts are better, and it seems from an article I read today that expert witnesses who explain the likely aftereffects of rape are a regular feature in US courts, which gives me some hope. The ignorance of the jurors was just so shocking – and I can’t believe British judges are telling ministers today they should rely on jurors’ common sense!


  3. 3 CaptFriday

    You know, I’m already upset because I’ve been over at Steve Gilliard’s blog and I’ve been reading the typical whining about how rape threads at Alas are closed to guys who want to whine about how women are vindictive bitches who make up accusations of rape to hurt men. Like this hasn’t been heard a million times before. Maybe it’s just Gilliard’s blog, but honestly there are so many revolting racist comments there from trolls, but unfortunately it seems like most of the nonracists have a serious problem with women. I’m getting really, really tired of the sexism from the liberal blogosphere. I’m tired of hearing all this bs when the reality is that there are so freaking many rapes, most of which will never be reported, and the legal system is so stacked against rape victims.

  4. 4 Dave On Fire

    There are a few shocking cases like this where rapists aren’t convicted in spite of evidence, and I agree that that’s disgusting. And a lot of your points are valid and well made.
    But ultimately, aren’t most rapes impossible to prove either way? Dismissing men’s concerns of being falsely imprisoned as “whining” is surely little better than saying that rape victims “have it coming”. Our whole legal system is based on the concept of being innocent until proven guilty; when a case comes down to one person’s word against another surely there’s no way to justify a conviction.
    I’m not saying that women are “vindicative bitches”, simply that giving a woman the legal power to convict a partner of rape based only on her word would be a temptation that some women might not resist. Clearly cases like this shows that juries and judges do need educating on the realities of rape and that there are biases to be addressed, but I can’t imagine any acceptable law that would result in a high rate of conviction simply because rapes can very rarely be proved.
    Tell me, in the case you linked to from the Observer, how on Earth can one be sure that she didn’t give consent? Surely the only way to legislate against such attacks is to make sex with a drunken woman legally the same thing as rape. Is that what you are advocating?

  5. “At least here the defendant was an actor” – I think I might have meant “complaining witness” here…

  6. 6 Teacup


    Just to say that appreciate this article, which I followed from the CiF debates. Thank you also for your strong defence of the rights of women.

    I am a woman myself, and have been attacked by men, though not raped. The whole bit about being able to defend oneself is rather silly. One can try, but I have found that even men roughly my own size are much stronger than I am. Most men are much bigger than me and I doubt I could put up a stiff resistance. Also, women in my culture are unlikely to retaliate physically at first. I am embarrased about how slow my reflexes are, but this is not something that I can change easily in middle age.

    However, I do agree with the concept of reasonable doubt. This makes proving rape difficult, but (reluctantly) I have to admit that it is a necessary standard.

  1. 1 I Read the Internets - 1/27/07
  2. 2 Maybe judges need some education about rape (and juries) too « TheGirlFromMarz

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