So women who are raped while drunk are unlikely to see their attacker convicted, according to this report. A third of people believe it’s the woman’s fault if she gets raped while she was drunk. And, shockingly, fewer than 6 per cent of rape allegations result in a conviction.
Juries are reluctant to convict in these cases, giving the benefit of the 
doubt to the man, believing that a woman’s silence amounts to consent, even if it is caused by her intoxication.
Juries are ordinary members of the public, the man or woman on the street, yet now we learn they stereotype drunken rape victims in this way.
Under the current law in England and Wales, rape can only be established if it can be demonstrated that sexual intercourse took place to which there was no consent and that the defendant lacked a reasonable belief that such consent had been given. The 2003 Sexual Offences Act changed the criteria for the defendant believing he had consent from being a view he ‘honestly’ held to one that was ‘reasonable’ for him to hold – this was intended to ensure that defendants were held to a higher level of responsibility.
However, researchers have found that jurors often took the view that it was ‘reasonable’ for a man to assume that silence represented sexual consent, even if the silence was due to the fact that the woman was totally intoxicated.
Because it is unlawful to conduct research with real juries, researchers from The Economic and Social Research Council used trial and jury room simulations to find out how the legislation was working. These are its main findings, showing that gender stereotyping is very much evident:
- In situations where the woman had become involuntary drunk, many jurors continued to hold her partially responsible for what took place – either because she accepted drinks from the defendant, failed to stand her ground against pressure to drink more or did not take adequate care to ensure that her drinks were not ‘spiked’ (by either extra alcohol or drugs) .
- Even when a woman had unknowingly drunk spiked drinks, juries were reluctant to convict defendants of rape unless they were convinced that the drink had been spiked with the specific intention of sexual assault, as opposed to ‘loosening up’ a reluctant partner.
- It also emerged that jurors were less inclined to equate ‘taking advantage’ of a drunken women with rape in situations in which the woman’s normal behaviour was to drink heavily in the company of men.
- By contrast, in cases where the date rape drug – Rohypnol – had been used, jurors were more inclined to hold the defendant responsible for rape, even though the effect of the drug on the woman was the same as if she were very drunk.
The festive party season is about to hit us, and girls do like to go out and have a good time. They are also at risk of having their drink spiked and being preyed on by men who know they can get away with raping them by saying he “reasonably believed consent had been given.
It would appear to me that there is a loophole in the law which benefits the alleged attacker and the law needs to be amended to take this latest research into account. The jury is guided on matters of law at the end of the day, and as the law stands, it does not help the alleged victim.
The law should protect all women, even if they make themselves vulnerable by getting drunk. As the law stands, it will deter even more women from reporting rape charges.
Whether an alleged victim is drunk or not, this will not encourage women to report rapes, especially knowing that they face an unsympathetic jury and traumatic court trial.
I have a lot of sympathy with the fact we have a problem. However, most of the solutions I have heard proposed, basically tear up the system of Law that we enjoy. As such they are as likely to lead to unfair convictions as increase the chances of guilty men being punished.
How do we protect women, without damaging our legal system even further?
What you say is true and I think you probably could have guessed it. These politically incorrect facts should be publicised – women should be aware of the real risks they face. As I have previously blogged, the Home Office approach to rape is a cruel deception. Most of my commenters agreed with my viewpoint, but I am interested to hear more of a female view on this.
I have also read that women jurors are likely to be harsher on a woman who has brought a rape charge. It seems to me we are going backwards, not forwards, in this type of case, with women again afraid to report rape.
WL, I also heard the same story about women jurors. But court cases are driven by evidence, facts and law, and that’s why I feel the law needs to be changed to overcome this loophole.
What’s the loophole?
Praguetory, The loophole is around the word “reasonable”, the fact that a man can feel he has “reasonable” consent, which includes taking the woman’s silence as consent, when she is unable to say anything due to her drunken condition. It means, in effect, she has no protection from the law when she is in that vulnerable condition.
There’s a lot of chaffing going back and forth and a lot of backchat and sexual innuendo – you’ve surely seen this in any pub situation. She gets drunk, the defences go down, he claims reasonable consent. How can we ever analyze exact events leading up to this? What if she goes off in a car with them? I was in a car with three guys and two girls. There was little doubt what was on the cards. I asked to be dropped off at another pub further up the road.
There is still a mentality amongst some men that when they buy a woman drinks and a meal, they are somehow entitled to sex in return. Then there is the predatory male who purposely sets out to obtain sex by way of drink as it tends to pull down defences. Whilst a woman might rightly be blamed to a certain extent for voluntary intoxication, this does not necessarily extend to agreeing to sex. Therefore, there is a valid argument to claim rape in some cases. Probably, more than some would like to feel comfortable with.
We had a recent incident where a girl was packed raped.
A comment made by a leading Mufti
Quote ” Can flies be held responsible if a piece of meat is uncovered”.
This was made in reference to women and their choice of clothes and behaviour (ie drinking).
It is my view that NO woman should be abused. Regardless of dress, or circumstance…
The comment made by this mufti sadly reflects a disgusting attitude.
Women should report all rapes, and we, as men, should addopt a hard line towards those who are abusers. As well as those who incite an attitude (such as this muftis).
NO means NO!
A friend of mine was raped at University. It obsiously affected her life dreadfully for months. She confided in friends but as a law student she knew what the chances of a conviction were gievn the amount of evidence there would be in her case and as a result, she did not report it to the police.
I think it comes to something that a student of law will not even report it because she knows what the verdict will be.
That said, I would also prefer to see people charged with rape having the right to remain anonymous until the court case. The current fuss over a TV actor being arrested for rape means we have trial by tabloid.
I wish I had a suggestion to support your plea for more justice in this area, but I’m not sure there is an answer. In many cases it boils down to one persons word against anothers and there are usually no witnesses.
And if the debate in the media is any guide, I don’t think anyone else has a just answer either. I’ve heard calls to raise conviction rates from several campaigners in this area that only amounted to a plea to reduce the rights of the accused. Solving one injustice by implenting another injustice is pathetic, but it might just happen because the only alternative I can see, which I’m not necessarily advocating, is women dressing and acting as they did in the less enlightened past.
It’s hard for me to approach this objectively — I have daughters.
However, there was a very highly publicized case here in the Chicago area recently involving three teenage men accused of gang raping a teenage girl… and videotaping the event. She’d voluntarily gone to the house to drink with the boys. She’d gone alone. Obviously the video was to be used in the trial.
Faced with the prospect of having the video shown in court against him, one of the defendants fled the country… only to return when one of his comrades was acquited.
No, I don’t have all the facts at my fingertips as I write this… but, yes, he was acquited even though the tape was shown in court.
Why? Well, even my wife said — What is she doing going by herself to a house to drink with three boys?
“No” must always mean “no.” Date rape is rape: Forcing one’s self on someone is never “repayment” for a night out on the town. But regret in the cold, unforgiving light of morning, no matter how profound, is not “date rape.” How can outsiders really determine what is “regret” and what is truly “date rape”? That’s why your standard of ‘reasonableness’ — difficult as it is — is probably reasonable.
In Illinois, “criminal sexual assault” occurs if the perpetrator (1)uses force or threat of force to commit “penetration” (our statutes are very prim) or (2) if “the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent” — notice: “knowing” consent — or (3) if the victim “was under 18 years of age when the act was committed and the accused was a family member” or (4)if the victim “was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.”
An enhanced crime of “aggravated criminal sexual assault” occurs under a number of circumstances. Relevant to your discussion is when “the accused delivered (by injection, inhalation, ingestion, transfer of possession, or any other means) to the victim without his or her consent, or by threat or deception, and for other than medical purposes, any controlled substance.” Booze is apparently not included here.
Bottom line here: Sure, girls just want to have fun. But they have to — have to — be careful. If they need the law to protect them… isn’t it already too late?
As a young man, I can understand how the conduct of some women can very easily be taken to mean more than it does. They need to take precautions when going out – either don’t drink too much or stick with at least one friend.
As a first aider, I have come across one incident where we suspected the use of a date rape drug. The girl was very much out of it (but not unconscious)and the man she was with did not know her real name. She (or her vomit) also did not small of alcohol enough to warrant her condition. The us of a date rape drug is a possible reason for this (though we cannot be sure).
No should mean no. But the only ways to be sure there is no rape is not to drink to excess and to keep with friends. Always be aware that not everyone is friendly.
No one assumes that a man who is drunk gave consent to being mugged or robbed by not saying anything. But the assumption is that a woman who is drunk DID give consent to sex by not saying anything.
That’s the attitude that needs to change. Unless the man hears an unequivocable ‘yes’, he should damn well keep it in his pants. Anything else is rape.
Would I report rape? I live in a small town, I’m over 50 (with white hair), I don’t drink. I think I would; I believe my chances of being believed would be higher than that of a pretty young woman who was drinking as part of her good time. And THAT’S a hell of a commentary on our society.
If I was that pretty young woman who was drinking as part of a good time — no, I’m not at all sure that I would report rape. It’s truly disgusting that it’s come to this.
A very tricky, sensitive but important topic and some very pertinent points, particularly from the Curmudeon.
The difficulty Elle is that as soon as the law recognises that the victim’s intoxication is pertinent to or can undermine their ‘capacity to consent’ (i.e. “she was too drunk to understand what he was doing”) the law then has to be equitable in the application of that principle – hence a clever (if odious) defence solicitor would simply claim their client was similarly intoxicated and could not therefore be held responsible for assessing the victims state. The whole system breaks down because at the end of the day what we’re trying to do is define an act as criminal purely on the basis of the phsychological state of one of the parties – the physicalities of the act would be perfectly legal under any other circumstance.
I fear that the law will always remain too blunt an instrument to ever get this perfect.
p.s. thanks for the link and I will reciprocate.
Perhaps we need sexual consent forms. Here is a video of how it would work http://www.glumbert.com/media/consent
Sorry this link works http://www.collegeslackers.com/video/392
Geoff, Who do you suggest would carry these forms – the man or woman?
Ellee, what conviction rate would you like to see? How is that justice!?!
It seems to me that the jurors are being the sensible ones. Women do have a responsibility to look after themselves, they cannot abdicate that responsibility because they are drunk.
Should drunk drivers not be prosecuted as they may be too drunk to know it’s illegal to drive whilst drunk!?!
Should there be different categories of rape such as there are with murder? Is there a difference between “date rape” which is perhaps down to interpretation (and why jurors struggle to convict?) and dragging someone into bushes at knife point to be raped?
Snafu, Should men have sex with women when they are too drunk to refuse? Does that count as consenual in your eyes?
Hi Ellee. In Australia…our “codified states” question “Did the accused believe the other person was consenting? If so, was that belief reasonable? Now, a reasonableness test has been formulated in some code jurisdictions as a “reasonable person test”. In Daniels v The Queen (1989) 1 WAR 435, the Supreme Court of Western Australia (Criminal Court of Appeal) held that….”whether it was a reasonable mistake depended on whether an “ordinary” and “reasonable” man (or woman) would have made it in the circumstances which the jury found to have existed”. The fault element (intent or recklessness) must relate to the sexual conduct and the lack of consent. Look, basically its up to the judge to step in after summations, and direct the jury (its done here often and is very successful, especially in cases such as you’ve mentioned. The Jury should be directed to concentrate on the state of mind of the victim…immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular, the events that lead up to the act and her reaction to them, showing their impact on her mind. Juries must apply commonsense, and further judicial elaboration on the meaning of consent is needed in these types of matters. I will say though Ellee, in my experience, the attitudes here of jurors differ a lot to your examples. Sadly, rape and sexual matters are the most difficult to prove because there are usually never any witnesses.
Snafu may not be particularly delicate but he has a point Elle – as I mentioned above you’re on dangerous territory if you put legal weight on the fact that the victim was too drunk to consent since it provides similar legal cover to the perpetrator as being too drunk to apprehend the legality of his behaviour.
So the answer to your question “should men have sex with woman when they are too drunk to refuse?” is clear in one sense and that’s no, it’s contemptible, unethical, sleazy and, to my mind, beyond forgiveness. It’s a whole different matter though to say it should be illegal…
If potential rapists think there is a low chance of being reported, it will only increase the chances of them doing it.
Date rape drugs are dangerous; women need to be careful when partying, especially at this time of year.
Ellee, I’m afraid you miss my point entirely, we do not live in an ideal world, we live in the real world.
I should not have to lock my car up when I leave it somewhere as no one should steal it, but people will try to steal it so I have to lock it. Equally, you recently commented that you don’t keep a block of knives in your kitchen in case you are burgled and the burglar sees them before you do (or something like that, I hope I’m not misquoting you!).
I am categorically not stating that drunk women deserve to be raped. The whole point is that women should avoid situations where they are putting themselves at risk. I try to avoid dark streets or groups of youths at night for the same reason.
The problem jurors seem to be struggling with is whether consent was given or not when both parties were drunk and one party may regret it in the morning. Criminal convictions are based on “beyond all reasonable doubt”, civil prosecutions are based upon “the balance of probabilities”.
Convictions are bound to fail when it is not beyond all reasonable doubt. I personally believe there is a significant difference between women drinking too much, when they should know their alcohol tolerance(!) and being drugged with medications.
Ellee, I abhor the idea that date rape convictions should be too low or too high rather than a freak of the justice system. Would you prefer the rate to be 10%, 30% or perhaps 60%?
Are too many women found guilty of manslaughter rather than murder of their husbands!?!
Ellee, in answer to your question, I agree with the jurors who suggest it depends on the circumstances.
If someone is drunk to the point of unconciousness then having sex with them is rape. The difficulty is proving it.
Say I was on a jury, drunk boy had met drunk girl in a bar. She had gone back to his place. She had been kissing him and got into bed with him.
Now she says that the last thing she remembers was being in bed kissing him and when she woke up she had no clothes on and knew he’d has sex with her.
He says they we kissing each other, touching each other and taking each others clothes off. Then they had sex with each other. He says she was awake and carried on kissing him thoughout.
I wouldn’t convict, simple as. There’s never any witnesses to these situations. If there’s no sign of violence, they’ve agreed to sleep in the same bed and there’s no signs of a struggle how can you possibly convict when a judge would instruct that you have to find him guilty ‘beyond reasonable doubt’.
This ‘I was too drunk to say no’ thing doesn’t wash with me either. If that was the case how on Earth did she get to his place / her place anyway? If you are too drunk to speak you are too drunk to walk. You can be so drunk you can’t remember walking home and still make it, but not be so drunk you can’t even say ‘no’ and still be able to get home.
I think a lot of these allegations we’re talking about are genuine date-rapes. I think many of them are more to do with the girl not remembering what she did last night. A small number of them are probably malicious complaints by girls who regret what they did.
Yes rapists are lying their way out of trouble. But I don’t see there is a great deal we can do about it. There’s a lot of so-called company directors out there that should be prosecuted for fraud, because they are basically running deliberate scams. Same problem, you can’t prove it.
[…] Why are police so dismissive in nearly a third of cases, is it because the victims are wearing short skirts and had been drinking? Or maybe because they knew the victim, which 86% of women do, meaning it is hard to prove – her word against his? […]