He said, she said: where angels fear to tread

Here is an interesting Aust Parliamentary Library write up of the law of rape in Sweden (HT: Paul Barratt) with reference to the current legal peregrinations of one Julian Assange.

My inexpert take on the law of rape is that the ordeal to which women were subjected before the law was reformed in this area was outrageous. The basic line of attack was that if someone wasn’t the model of Victorian sexual rectitude (as it were) then they ‘asked for it’ or perhaps even ‘had it coming’. While this reflected a nasty aspect of legal culture, ultimately defence barristers were seeking to appeal to enough people in the jury to get their client – the accused – off.

The overarching problem however is the simple lack of evidence. There may be reasonable evidence that a rape has taken place, but if it was committed in private, there is not physical evidence of struggle (which itself may have other explanations such as consensual rough sex) it will often be possible to prove that a rape has taken place with reasonable likelihood, but not beyond reasonable doubt.

The write up reports Amnesty International thus:

A particular concern is the fact that most rape cases never come to trial at all. Only a small number of reported rapes result in a prosecution, with an even smaller number resulting in a conviction. Instead, most rape investigations are closed at an early stage, usually with the explanation that ‘it cannot be proven that a crime has been committed.

Well it is concerning. But isn’t this what one would expect given that the kind of men who are prepared to rape women are likely to lie and they didn’t?  Right now the report (pdf) says that “only 12% of crime victims who report rape get their case tried in a court of law, and that this means that, in practice, many perpetrators enjoy impunity.” That’s true. I have no idea whether 12 percent is the right number, but the report doesn’t seem to grapple with the question of the difficulty of getting evidence to meet the criminal standard of proof.

I think the idea put forward by Amnesty International seems fair enough. “We therefore propose that a special monitoring commission be appointed to systematically analyse all closed rape investigations and identify shortcomings in preliminary investigations into rape”. However it would be worrying if it simply led to more cases coming before the courts without more convictions.  (If I had to guess I’d say that if you are raped and there’s no conviction it’s preferable that you are spared the trauma of the court case and the acquittal of the person who raped you, but I don’t know).  Anyway the monitoring commission seems predicated on the idea that 12 percent is too low, without saying why. (Perhaps some people who know this better can enlighten us as to what we know here.)

Then there’s this passage:

In Amnesty International Sweden’s view, the preventive work to combat and eradicate rape and sexual violence have been neglected and must be reinforced and developed. Stereotypical notions about female and male sexuality, about what is – and what is not – normal, and about women’s availability for sex are deeply rooted in society. Such notions and attitudes, which pave the way for gender-based violence against women, including rape, must
be countered and changed.

I don’t think it would make much sense to call for the eradication of murder or any other crime. Why call for the eradication of rape and sexual violence? Do we know that rape is the result of “notions . . . about women’s availability for sex [that are] are deeply rooted in society.” Maybe. It’s certainly useful to try to fight violence wherever one can. But I’d say with almost all people, and I’d hazard a guess with most rapists, they know that what they are doing is a deeply transgressive act.

Is the rate of burglary driven by deeply held societal notions about the availability of people’s houses for foraging for stuff criminals want?

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Kien
Kien
10 years ago

Why wouldn’t it make sense to call for the eradication of murder and rape? Do you mean to say that it wouldn’t make sense to expect to achieve the complete eradication of murder and rape?

Attempts at eradication would likely involve a broad range of measures not limited to criminal prosecution. It would also like involve a change in the way men relate to women (and vice versa), and the social standing of women. Just my inexpert view!

hrgh
10 years ago

Why wouldn’t it make sense to call for the eradication of murder and rape?

As I understand Nicholas’ point, murder and rape cannot be merely willed away through government action. To call for the eradication of these behaviours would be too simplistic. Nicholas, please correct me if wrong?

I would add that believing that these behaviours can be eradicated by ‘preventive action’ is a product of viewing deviant behaviour as ‘a failure to understand like I do’. People and peoples are more complex than this.

That does not mean that creating norms should be rejected, but we do need to understand that some people break the rules in full knowledge, and target our preventative/protective actions with this in mind.

John Turner
John Turner
10 years ago

In my view the ethics classes starting in NSW in 2011 is a step in the right direction towards reducing all crimes, particularly crimes of violence which of course include rape.
These classes are based on the Clackmannanshire trial conducted in 2001-2 which concluded that, compared to control classes, students in the trial classes benefited by increased cognitive ability testing result improvements of over 6% and by a substantial shift from bullying towards negotiation among students.
Attempts to indoctrinate rules of behaviour via religious belief and instruction have never been very successful, particularly among children being raised in dysfunctional families.
Society has neglected Socratic discussion for far too long. Clackmannanshire showed that such discussion for as little as fifty hours by primary aged students will have a long lasting beneficial effect. The report is available at,
http://onlineopinion.com.au/documents/articles/Clackmannan.doc

Edward Carson
10 years ago

“But I’d say with almost all people, and I’d hazard a guess with most rapists, they know that what they are doing is a deeply transgressive act.”

I hate to find myself agreeing with Amnesty International on anything but I think they have a point here. Most rapists might know that dragging a woman off the street and into your car is a deeply transgressive act, but when the situation is a girl at a party voluntarily coming back to your residence after some heavy petting and then falling into a drunken stupor on the couch, some men might not be that sure on what defines consent.

That special ‘Important Legal Warning!’ in the last page of their ‘Five Simple Methods to Help You Get Laid” pamphlet might make all the difference.