24 July 2013

Rape: trials can make the situation worse

In dealing with some rape allegation, adversarial trials cannot provide justice.

The rape of adult women without physical violence is usually unprovable beyond reasonable doubt, unless admitted, witnessed, caught on CCTV, or the victim was not compos mentis at the time of the intercourse. Juries in practice ask themselves the questions: Given what we've heard, whom do we believe, and do we want to send this guy to jail? In this way rapists are often let off, and some innocent men are imprisoned.

Many rapes and sexual assaults are unreported. A few that are reported are false allegations. Others are cases for which public criminal trials with long jail sentence hanging over the defendant (or to some degree the accuser, if the allegations are proved to be false) are not appropriate. In particular, I have in mind cases in which what started out as consensual sexual acts between the parties were followed by non-violent non-consensual ones. And when cases of this kind end up in criminal courts, the logic of the situation will force the woman to say that she did not consent to any of the sex, while he, for his part, will say she consented to all of it. Both may lie; and at least one party will be humiliated for life with little justice done.

Would there not be a case for a private judicial arbitration, particularly in cases where accusations of non-violent rape arose out of what had started as consensual sex? The party deemed to have done wrong would apologise, perhaps be required to attend a rape awareness course and and/or pay compensation. Many more women would come forward; and many more men would admit and confront what they had done.