TRIGGERnometry - Is Rape Culture a Dangerous Myth？

00:00:00.000 Hello and welcome to Trigonometry. I'm Francis Foster. I'm Constantine Kishin.

00:00:09.200 And this is a show for you if you want honest conversations with fascinating people.

00:00:14.660 Our brilliant guest this week is a lawyer and columnist at Spiked, Luke Gittos. Welcome to

00:00:20.040 Trigonometry. Thank you very much for having me. It's great to have you. Before we dive into the

00:00:23.940 interview, for anyone who doesn't know who you are, just tell us who are you, how are you,

00:00:28.360 where you are, what has been your journey through life? Well, I'm a lawyer. I practice criminal law,

00:00:34.120 been practicing criminal law for 10 years. And for about the same amount of time, I've been

00:00:39.200 writing for a magazine called Spiked. I've written a couple of books, and sometimes I go on the

00:00:43.960 television. Yeah, we're delighted to have you, I should confess, back. Yeah, we did an interview

00:00:50.140 with you about a year ago. It was a brilliant interview. And then the hard drive on which

00:00:55.120 that interview was stored got dropped woeful incompetence yes woeful incompetence on our part

00:00:59.780 you should sue us yeah but uh we're delighted to have you back because it was a great interview on

00:01:04.240 on a very difficult and controversial and challenging issue that i thought you know you

00:01:10.440 you covered beautifully uh which was rape culture and we we talked about it at length so uh and i

00:01:18.940 i remember as part of it one of the questions that francis asked you was isn't one of the reasons

00:01:23.520 that we talk about is that we have an awfully terrible conviction rate for crimes like rape

00:01:30.020 and you proceeded to destroy him for about 10 minutes and you said that everything he said was

00:01:33.780 untrue, which was my favorite part of any trigonometry interview ever. So we have this

00:01:38.960 conversation about rape culture. Just first of all, tell us what that is and what people mean

00:01:44.440 when they talk about that. Well, actually tracing the origins of the idea of rape culture or the

00:01:49.420 idea that we live in a rape culture. It's quite hard to identify where that term comes from. There's

00:01:54.680 a couple of cultural uses from it in around the 1980s. I think it's used first in a television

00:01:59.200 series. It then gets picked up by academia in the 80s and 90s. And effectively, it's a term which

00:02:05.720 attempts to describe today's society and claims that cultural factors, misogynistic media,

00:02:14.180 a sexually biased justice system contribute towards the prevalence of sexual violence.

00:02:23.880 And I wrote the book that I wrote about it five years ago at a time when time and time and again

00:02:31.260 the term was being used to claim that something about today's culture contributes to the

00:02:37.900 prevalence of sexual violence. The motivation for writing the book was to engage with what I thought

00:02:45.580 was quite a misleading climate around this issue. I've been working on these cases at that stage for

00:02:53.280 about five years. And I think it gave an insight into the fact that this is one of the most, in

00:03:01.140 fact, probably the most complicated offence on the statute book is the most complex and difficult

00:03:07.200 case crime that the courts have to deal with for so many different reasons. I think in the majority

00:03:15.440 or at least a sizable chunk of the rape allegations that come before the courts,

00:03:21.920 juries are often asked to make very, very fine distinctions, often about the real minutiae

00:03:28.660 of people's behaviour. And the stakes in these cases obviously could not be higher.

00:03:34.380 on the one hand you have a complainant who has made a complaint of one of the most serious crimes

00:03:41.060 imaginable and on the other hand you have someone accused of the most serious crime imaginable

00:03:47.480 and often we're talking about people at the outset of their lives on both sides of this equation so

00:03:52.920 we know from the most recent statistics that about a third of all rape defendants are under 24 years

00:04:01.800 of age and about 65% of rape complainants are under 24 years of age. So it is a crime that

00:04:09.600 has a huge effect on people right at the outset of their lives. And either way, the court has

00:04:16.940 the potential to destroy one party's life meaningfully. I mean, arguably, a victim of

00:04:23.100 rape has already had an enormous trauma and is suffering enormously. But it should be clear that

00:04:28.760 the stakes at play when we consider these offences are absolutely enormous. So the purpose of writing

00:04:36.040 the book was not actually to wade into what I think back then had become a kind of broadening

00:04:42.800 on a culture war between one side that said rape is everywhere, everyone is at risk, men are

00:04:48.980 inherently misogynistic, and all of them are vulnerable to becoming rapists, which I don't

00:04:53.200 think is true but not also to dive into the other side which was a kind of cultural conservatism

00:04:59.220 that said oh well women are partly to blame for what they wear and they should you know make sure

00:05:03.720 they dress appropriately when they go out on a night out they shouldn't drink as much which is

00:05:07.500 not true either the reality is a very complicated mix of factors which I'm sure we'll get into

00:05:12.680 and the purpose of the book was to kind of try if possible to rise above the fray of the discussion

00:05:19.740 that was happening at the time, which had become fevered, inaccurate, often throwing

00:05:24.240 around statistics in a very narrow and manipulative way. The book was an attempt to sort of take

00:05:29.860 an honest look at the problems, to take an honest look at what was happening as far as

00:05:35.300 we possibly can in our courtrooms, and then to test the claims of the people who were

00:05:40.340 saying we live in a rape culture and hold them open to scrutiny. Because I think that

00:05:45.260 the severity of these crimes and the stakes at play in these cases mean we have to be honest,

00:05:52.480 we have to be searching, and we have to interrogate the claims that both sides make about them.

00:05:57.940 And the book was a kind of modest contribution to that effort.

00:06:01.180 And, I mean, the problem with this crime is, you know, the level of feeling on both sides of it.

00:06:08.920 I mean, you even look at the case that happened in Cyprus. Now, I've only been following it,

00:06:12.520 But, you know, you have, you know, on one side, you know, the people who have been accused, who were then acquitted, who then seen themselves as, you know, they were right, they were correct.

00:06:23.000 And then you have the girl on the other side who is, you know, went into court covering her face.

00:06:29.000 I mean, how do you deal with a crime like that, which is so, I mean, all crimes are polarising, but particularly in something like rape.

00:06:34.940 well so taking the cyprus case first is incredibly difficult to say anything about because we know

00:06:40.560 nothing about the specifics of the allegation i think our first order position should be

00:06:44.880 to trust in general that the cypriot justice system is working that should be the presumption

00:06:50.980 um and then we test and investigate further who knows what happened in the course of that case and

00:06:58.320 i can't really comment but i think you're right to say that these cases generate enormous emotion

00:07:02.740 on both sides. But I think what is often missed in the contemporary debates or the headlines that

00:07:09.660 feature around it, and this is starting to change actually, but one thing that used to be missed was

00:07:14.080 the catastrophic impact it has on both sides, because often the discussion rightfully focused

00:07:20.540 on complainants and victims of sexual violence, because obviously the impact is catastrophic.

00:07:27.680 But there is another side to the coin. And often when you go into these cases, if you look at the

00:07:31.920 background and you look at the evidence, one of the most shocking things I found from looking at

00:07:37.580 these cases was that often two people had a fundamentally different account of what took

00:07:42.320 place, but also they had a fundamentally different understanding of how to interpret what took place.

00:07:48.800 So two people can come to these cases with the same understanding of what factually occurred,

00:07:55.560 but different understandings as to how to interpret it. And I think if you put yourself

00:08:00.160 in the mind of someone who is accused of this crime and say, well, I went into that interaction

00:08:05.900 that I had, that sexual liaison that I had, and I came out with a completely different understanding

00:08:13.120 of what had happened. And I'm now accused of the most serious possible crime facing 10 years in

00:08:20.220 prison. It's important that we acknowledge that that dynamic has to be taken seriously. We can't

00:08:27.580 simply say, well, every conviction is good. Any fall in convictions is bad. We must charge more

00:08:33.120 people. We must prosecute more people. That is a far too simplistic approach to take to this

00:08:37.840 offense, which by its nature involves a great deal of moral complexity.

00:08:43.380 Well, one of the common slogans, if you like, of the people who talk about rape culture as being

00:08:48.980 a real thing is that the conviction rate for sexual offenses is incredibly low. People say

00:08:55.220 the conviction rate for rape is 3%, etc. And this is something I've heard over and over and over.

00:09:01.860 But of course, in your book, this is one of the things you talk about. So give us your views on

00:09:06.840 that idea. So the 3% conviction rate is a complete myth. The conviction rate currently for rape

00:09:15.060 offences in England and Wales is around about 78%, which is actually unusually high. The reason for

00:09:22.320 the confusion is that people are confusing the attrition rate with the conviction rate.

00:09:28.800 Now, this gets technical very quickly, but the attrition rate describes the percentage

00:09:34.200 of allegations or reports to the police which are flagged up as rapes, which end eventually

00:09:42.420 in a conviction. And that figure oscillates between around 3% and 6%.

00:09:47.700 there's all sorts of reasons why cases fall out of the justice system between when the report is

00:09:54.080 made and when the case is finally disposed of at court that could be because the person making

00:10:00.240 the complaint is simply mistaken about what they're reporting okay so the the kind of the

00:10:05.720 number of reports will include reports made by third parties or people completely unrelated say

00:10:09.940 oh i think i'm hearing something here that will be bounded up in that initial set of reports so

00:10:16.760 that initial number will be narrowed down because quite simply most of the calls will not

00:10:23.200 relate to an actual crime that's taken place. And then throughout the different stages in the

00:10:28.600 justice system there are reasons why cases drop out. The evidence might not be adequate enough

00:10:33.780 which means that the CPS won't charge the case which means cases fall out at that stage. And

00:10:38.980 what you end up with is this figure of between three to six percent of the reports made initially

00:10:44.240 that end in a conviction. Now, what's important to remember is the attrition rate for rape is not

00:10:50.000 particularly low when considered in relation to like-for-like cases. If you look at offences

00:10:55.880 like burglary or GBH, the attrition rate is roughly the same because in relation to all crimes,

00:11:02.800 there's going to be an enormous amount of initial reports that don't get taken forward for a number

00:11:07.620 of different reasons. But there is nothing to say that the attrition rate for rape is particularly

00:11:13.200 low. In fact, that's the attrition rate that people usually talk about when they say 3%.

00:11:18.780 The conviction rate is the rate of cases which reach court and end in a conviction. Now, there's

00:11:25.800 other complications and caveats to that, but the conviction rate for rape has been high and has

00:11:32.980 always been high. In 2013, it reached an all-time high at 63% then. It's now at 78% on the latest

00:11:41.020 statistics so by the time a case gets into court 78 of those cases will end in a conviction which

00:11:48.860 is way more than half okay so three out of four people who get charged with rape and that gets

00:11:57.040 taken to court will be convicted of no so you're right yeah i'm telling so the more you delve in

00:12:04.880 so the language you use is very important because it's not so you have various stages of a case you

00:12:09.520 have people getting charged at point x that's quite that's after the investigation is concluded

00:12:14.200 and when the prosecution formally begins yes but those cases can fall out before they reach court

00:12:19.260 yes the conviction rate refers to the the percentage of cases that reach court and end

00:12:24.480 in a conviction yes now the additional complicating factor is not all cases that reach court on an

00:12:30.240 allegation of rape will end in a conviction for rape okay and the ministry of justice statistics

00:12:36.500 taking this into account, where the CPS statistics don't. I'm telling you, it gets technical very

00:12:40.920 quickly. So there is some evidence from the Ministry of Justice statistics that the figure

00:12:46.320 of 78% won't necessarily correlate with 78% of people being convicted for rape. They might be

00:12:53.160 convicted for something less. But nonetheless, once the cases get to court, there is a good chance

00:12:58.920 that the person accused of rape will be convicted of rape. If you look at the research, the only

00:13:06.720 research that's been done recently into real life juries that was conducted in 2010 by the Home

00:13:13.200 Office Commission and Academic, I think, at UCL, the findings there was that there was

00:13:19.100 juries were consistently, as of 2010, more likely to convict than acquit. So they were more likely

00:13:26.460 to convict rape defendants than they were to acquit them. No evidence whatsoever of racial

00:13:31.620 bias or bias against women who wore anything particular or had any particular attitudes.

00:13:38.460 So, and no evidence whatsoever that once the case got in front of the jury, that they were

00:13:45.560 biased against rape complainants. So the key message from all the research is to trust juries.

00:13:52.820 and one of the reasons why I was worried about this issue was because it's so often used as a

00:13:58.060 stick to beat up the jury system you know the allegation is that juries don't understand these

00:14:02.180 cases they get them wrong they don't convict but actually if you look at the all the figures over

00:14:06.800 the last 10 to 15 years the conviction rate is consistently high there are all sorts of other

00:14:12.740 problems which we can come on to talk about as to why that number of reports don't progress

00:14:17.180 because there are absolutely real problems with the way this offence is policed,

00:14:23.100 absolutely under-resourced, and the police often struggle

00:14:27.220 and are often held back by a whole host of different factors.

00:14:29.480 But once the case gets to court, there is every reason to believe

00:14:33.640 that that case will be given a fair hearing.

00:14:36.100 And is part of the problem why the reason why there's that fallout of cases

00:14:42.700 in between the attrition rate and going to court,

00:14:45.940 the fact that rape is a very, very difficult crime to prove.

00:14:51.760 Because a lot of it, it comes down to what he said, she said,

00:14:56.560 or am I getting this completely wrong and I am now a toxic figure for saying this?

00:15:00.040 No, you're not getting it wrong.

00:15:01.220 I think what you need to...

00:15:03.140 There are a number of factors which could contribute to cases falling out.

00:15:07.120 So firstly, you're right.

00:15:10.040 often not always but often rape allegations involve one person as i said at the beginning

00:15:19.220 coming forward and saying this is how i experienced this interaction what the police ought to do is

00:15:26.440 take that seriously investigate to the best of their abilities marshal any resources they have

00:15:32.280 to investigate the veracity of that allegation and find out whether there is a basis in fact

00:15:37.620 I'm afraid what often happens is that the police can take a derisory attitude to complainants

00:15:45.820 they say oh well she was asking for it or you know that does still happen undoubtedly

00:15:50.380 even if they don't explicitly say oh she was asking for it I'm sure she was up for it or

00:15:55.480 something similarly appalling they will simply take a relaxed attitude to actually investigating

00:15:59.920 the case so one thing we see time and time again is the police simply not taking the steps that

00:16:05.360 they would do if this was a robbery or a murder case because they think, well, there's no big

00:16:10.280 pressure because we'll eventually be able to dispose of this in a way which covers our back,

00:16:14.720 but which doesn't pay proper credence to the veracity of the allegation. So there's all sorts

00:16:20.020 of issues with the police. But why is that? Sorry to interrupt. Why would they care less about rape

00:16:25.100 than they do? Well, let me take that generalization I've just made and qualify it because there are

00:16:30.020 also incredibly voracious and eager detectives out there working on these cases. I've seen

00:16:37.480 examples of both detectives who take a relaxed attitude and detectives who will go way beyond

00:16:43.880 what you would expect in trying to prove a particular allegation. So there are, and I think

00:16:49.280 that culture in the police is really starting to change. We had a report in 2005 from Dame

00:16:54.520 Angiglione, who cited this as a problem that under-resourcing and perhaps retrograde attitudes

00:17:02.880 had led to cases falling out. And I think since then, things are starting to change. You do have

00:17:07.140 specialist officers who are desperate to get results in particular cases. When it comes to,

00:17:13.320 I think the answer to your question, Constantine, is why do some officers take this approach?

00:17:16.940 Because I think generally, there are still officers out there with quite old school

00:17:20.780 retrograde attitudes about sexual morality, which say, you know, if she was out in a nightclub

00:17:26.360 wearing a short skirt, and she went home with a bloke, then she probably consented to have sex

00:17:30.620 with him. That's an appalling idea. I don't think it's common among the police. But I think those

00:17:35.520 attitudes still probably exist. But isn't that what people talk about when they talk about rape

00:17:39.340 culture? They do. But the claim that they make is that that is so pervasive, that it can explain

00:17:46.240 the prevalence of sexual violence across society, which I don't think is true. I don't think

00:17:50.600 those kind of attitudes are so prevalent that it's enough to explain the prevalence of sexual

00:17:56.000 violence. What we know about sexual offenders is that when you look at the vast majority of people

00:18:02.180 we would consider sort of serious sexual offenders, they are serial offenders and they're a very small

00:18:07.000 portion of the population, which is hardly a surprise. You know, the actual people that go

00:18:10.520 out and target women for sexual violence is a vanishingly small percentage of the population.

00:18:16.120 and those people are not affected by culture okay there is no evidence to suggest for example

00:18:24.320 there was a lot in the 80s and 90s researchers trying to prove the connection between sexual

00:18:28.840 violence and pornography so again and again academics have tried to prove that the more

00:18:33.420 you watch porn the more likely to engage in sexual violence and even when you look at people

00:18:37.580 who are watching violent pornography there is absolutely no connection between people who watch

00:18:41.920 violent pornography and and the prevalence of rape even less so is there a connection between other

00:18:47.200 you know some of the factors that are sometimes talked about as contributing to rape culture you

00:18:50.580 know when i wrote the book the song um the robin thick song it's a ridiculous song you know you

00:18:56.220 know she wants it all that sort of stuff that was cited as contributing to rape culture so the idea

00:19:01.200 being that this song plays a part of a culture which encourages young men to commit sexual

00:19:06.600 violence and one thing that was and of course that's ridiculous but what what happens is that

00:19:12.180 what started to happen was men who were actually convicted of sexual violence started blaming the

00:19:17.100 culture that they were raised in so I remember a number of times rape um um defendants who had

00:19:23.300 been convicted started coming forward and said well I couldn't help it I was part of a culture

00:19:26.900 that encouraged me to do it or sort of subliminally forced me to do it didn't Ted Bundy also do that

00:19:32.240 Yeah, there was, I think that's right, that he had, but I think it's a common trope among people who, especially who commit violence against women, they feel able to rely on cultural influences to explain away their behavior.

00:19:46.560 And I don't think, you know, even the most sophisticated people who argue for the existence of a rape culture don't go so far as to say that they have no, that these people have no agency.

00:19:54.960 They just say that it sets a context for their behavior. But I do think it's a slippery slope when you say, well, because that rugby club listened to Robin Thicke and was dancing around being idiots, that makes them more likely to commit sexual violence.

00:20:09.140 Well, then it's a natural step for someone who is eventually convicted of sexual violence to turn around and say, well, you know, how can you blame me? I'm part of a culture that's inherently misogynistic. I'm not entirely responsible for my behavior.

00:20:21.680 And when it comes to considering criminal cases, actually those fine arguments, the little bits of influence, actually do meaningfully detract from people's agency. You can make an argument that if someone, for example, has a mental illness, they still have agency, but their responsibility is diminished. And that's why the people make these arguments, because they're saying their responsibility is diminished.

00:20:44.960 Now, I think that, you know, when it comes to people who, the other thing I've learned from looking at these cases is when people commit these offenses and the cases that you look at, which are pretty cut and dry, you can see that they're going out and making a moral choice to behave in the way they are.

00:21:03.620 they're making a decision and often when you sit down and talk to them you can see that this isn't

00:21:09.760 the result of something cultural it's a moral decision that they have made they've decided to

00:21:15.220 go out and commit an act of violence and this is another just to follow that up

00:21:21.120 the feminist what's one very interesting change is that um that's occurred in the kind of feminist

00:21:28.000 discourse around rape and sexual violence is that in the 80s rape was considered a crime of

00:21:32.960 power and violence and there was an attempt to by academics people like Jermaine Greer and others

00:21:39.940 to divorce rape from sex because the two are very very different things and in fact when someone

00:21:46.620 rapes someone that's not a sexual act it's a violent act we've lost that distinction now and

00:21:53.280 the discussion that we have today tends to conflate rape and sex and and rape and sexual

00:22:00.320 etiquette in a way which is very troubling. And so when I make the argument that, you know,

00:22:07.740 when someone decides to go out and commit an act of sexual violence, they are going out

00:22:12.120 to commit an act of violence. They're not going out just for sexual gratification. They're going

00:22:17.340 out to exert power over someone. And that's an understanding we've had for a long period of time.

00:22:22.680 But now, because of this argument around rape culture, we conflate people like Robin Thicke,

00:22:29.860 who likes to dance around with women in their underwear with rapists which is a very peculiar

00:22:35.340 conflation to make considering the history of this discussion because you never in the past

00:22:39.940 would have understood rape as a mere extension of someone's sexual preference or a development

00:22:46.080 of a particular of a particularly sort of sexualized piece of art you would understand

00:22:51.480 it as a violent moral choice made on behalf of the rapist and i think the danger is we losing

00:22:58.120 that distinction actually has some quite troubling consequences, I think.

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00:24:02.780 that time in isolation fly by. And I was going to ask, so you obviously look at all these people,

00:24:12.640 the vast majority of whom, in fact, well, I imagine all of them are men, but are there any

00:24:16.980 other common patterns between these types of people who commit these crimes, or is it just

00:24:22.060 people from every part of society every color all the rest of it yeah i don't think you can make any

00:24:27.420 generalizations about color class or or or anything like that really um i mean the law is crafted by

00:24:35.440 the way so that only men can commit rape you have to penetrate someone with a penis and um although

00:24:41.460 that you know might be a hostage let's not misgender people or you know we've got to be sensitive but

00:24:46.340 It is still true that, I'm afraid, at least when it comes to this area of the law, we are quite strict on biology.

00:24:53.660 So women can't commit rape.

00:24:56.000 They could commit conspiracy to rape if they planned to assist someone else.

00:25:00.020 But so it is only men who are charged and convicted of rape.

00:25:05.220 Women can be convicted of sexual assault, all other sexual violence.

00:25:08.520 But the law requires penetration with a penis when it comes to rape.

00:25:12.660 But no, I don't think you can generalize.

00:25:14.500 But I think I would draw a distinction between two sets of people.

00:25:18.840 What I have experienced is that this offence has the capacity to draw a wide net of people into the criminal justice system who I don't believe should be there.

00:25:29.640 I think that's true.

00:25:32.700 Primarily because, as we've discussed, allegations are easily made and difficult to prove.

00:25:39.480 And so people can often, you know, and I think the discussion around this has really started to change since 2018

00:25:44.780 because we saw cases like Liam Allen's where Liam spent something like two years under investigation,

00:25:51.560 having been charged, was about to face trial.

00:25:55.080 And it was only on the eve of his trial that the Crown Prosecution Service disclosed text messages

00:25:59.140 completely disproving the allegation against him.

00:26:01.880 And that's a young man who could have used that, you know,

00:26:04.920 he would have been totally justified in having his life completely turned upside down.

00:26:08.400 I mean, he did have his life turned completely upside down. But luckily, he's been able to come back from that. But these are the stakes that we're playing with. And this is an offence with the capacity to draw more and more people into its net in a way which perhaps robbery, murder, or burglary, you know, most people won't ever be accused of burglary, murder, or violence without some basis.

00:26:29.960 when it comes to sexual violence the lines are a lot more difficult to draw because as you've said

00:26:36.860 it often involves one person's word against another it can often involve the the minutia

00:26:42.920 of people's behavior and different understandings of how a situation played out and where do you

00:26:49.080 stand on because we have anonymity for victims which i personally i'm in agreement with i think

00:26:53.320 that's a good thing do you think there should be anonymity for the accused and if not why not

00:26:59.280 I think so anonymity for the victims came in in the 1970s. And initially, it was anonymity on both sides. I think I'm right about the 1970s. I might be wrong. But initially, it was anonymity for both parties. And then it was taken away for defendants. I think that creates a difficult dynamic. The presumption of our justice system is that it takes place in the open, and that both parties are exposed to public scrutiny.

00:27:25.840 I think you're right to say that there are benefits from complainants having anonymity, because obviously giving evidence in court is a deeply traumatic process.

00:27:36.760 However, I think that the presumption should be that everything should happen in the open.

00:27:42.940 And I certainly don't think the answer to remedying the current, I think there is a current inequality between the parties because one side has the entitlement to be anonymous and the other side doesn't.

00:27:52.080 I don't think the corrective to that is to make both sides anonymous because we want to be able to scrutinize in the best possible way what happens in our courtrooms.

00:28:02.400 You know, justice is meant to be done in our name.

00:28:05.100 And the more that criminal justice processes are done behind closed doors, the more likely or possible that it is that things go wrong without us knowing about it.

00:28:14.500 Now, there's all sorts of qualifications to that, because people who ask for anonymity for defendants make the point that they could waive their right to anonymity to open up scrutiny, you know, and they would have control over it. But I think there are other possible difficulties.

00:28:29.980 So when people argue for anonymity for defendants, they often say that that anonymity should certainly be in place up until charge, and then once they're charged, then they should be revealed.

00:28:41.380 But that actually creates a, that has real impacts for the presumption of innocence, because a charged person has not yet been convicted, is not yet guilty.

00:28:49.900 And I think if you have anonymity up until charge, once someone is charged, it creates the idea that they should have their rights taken away.

00:28:58.440 Well, why does the right to anonymity exist before charge and not afterwards? It shouldn't change. If you're arguing that defendants should remain anonymous, there's no reason to take that right of anonymity away at the charge stage because they're still an innocent person. They still should have all the rights of an innocent person. I think allowing anonymity only up until charge creates the idea that once they're charged, they're effectively open season a little bit. So I think that's problematic.

00:29:24.560 So, I mean, I think it's a difficult argument to make, but I think that the proper response should be to remove anonymity entirely with the caveat that we should take as many steps as we possibly can to make the process of giving evidence easier.

00:29:40.320 And we do. This year we saw trialing of pre-recorded cross-examination of complainants.

00:29:47.760 That's a big step. It means that what used to happen live in front of a jury is now videotaped and played to them.

00:29:54.560 and that's an enormous leap in favour of complainant's comfort

00:30:00.180 at the expense of a defendant's traditional right of a fair trial

00:30:04.360 because traditionally a defendant would be able to sit in court,

00:30:06.760 watch the complainant be cross-examined,

00:30:09.840 and that would be a robust exchange.

00:30:12.400 Now that process can be, and this is only piloted

00:30:16.900 and it looks like it might go further, be pre-recorded.

00:30:20.760 I don't agree with those steps

00:30:22.420 because I think we have to be honest with complainants that the criminal justice system

00:30:26.520 has to be and will inevitably be a deeply uncomfortable process to go through. I mean

00:30:32.700 when you make an allegation of rape or sexual violence if you go to court sadly you are going

00:30:40.380 to have your account tested robustly because otherwise the conviction that results from it

00:30:47.020 is not going to be based on a fair process.

00:30:50.400 We have to be honest with complainants and say,

00:30:53.460 look, you've gone through an appalling,

00:30:57.760 assuming they are genuine victims for a moment,

00:31:01.480 you've gone through an appalling attack,

00:31:05.280 this next bit is going to be awful,

00:31:08.360 but it's an important process to make sure that if your attacker is convicted,

00:31:14.380 that they got the best shot possible at defending themselves. Because if you deny a defendant the

00:31:21.940 right to defend themselves against these allegations, or you dilute the powers and

00:31:26.200 rights that they have in that process, the eventual conviction, I think, is increasingly

00:31:32.580 diluted, because they haven't had the best possible opportunity to test the evidence against them.

00:31:38.940 So I think we need to present it to rape complainants and genuine rape and rape victims.

00:31:44.380 as a difficult, horrible process that has to be gone through in order to ensure that everyone has

00:31:51.940 a fair hearing. And it's only if we have that, that the conviction that resolves from that process

00:31:56.400 can be said to be sound. Well, what about this? I'm sticking with the theme of rape culture. So

00:32:01.600 you mentioned that there are some police officers who are still living in the 70s.

00:32:07.180 You mentioned that the criminal justice system is essentially by design, it's a painful or

00:32:14.220 unpleasant process to go through um you know there's we even though you mentioned that there's

00:32:21.180 data to show that what the the woman was wearing doesn't affect the jury's decision you know we do

00:32:26.160 see these stories like the irish rugby players or whatever where that seemed to have been a topic of

00:32:30.940 discussion isn't like when you put all that stuff together certainly if i was a complainant in one

00:32:37.820 of these cases i would think that the system is stacked against me someone who's simply a victim

00:32:43.800 of a crime as opposed to being stacked evenly or being stacked against the person who did this to

00:32:49.900 me. Therefore, I would feel like potentially we do live in a society which seems to not do its

00:32:58.860 best at the very least to help me as the victim in that situation. There is some truth in that

00:33:04.500 and there is a risk of that, that when you pick up the phone to the police, that they're not going

00:33:09.160 to do the best job they possibly can. That is a risk that all victims of crime face. But one thing

00:33:15.600 I think is vital, and this was pointed out in the Baroness Stern report from 2010, is that we can't

00:33:21.960 be overly pessimistic with people making these complaints because then they won't come forward

00:33:26.440 at all. So we can point to an unusually high conviction rate once the case gets to court.

00:33:32.100 We can talk about massive reforms in favour of increasing the resources to the police,

00:33:37.640 greater understanding within the police of how these complaints unfold.

00:33:43.200 And once the complaint is made, people can be relatively confident that the allegation will

00:33:49.600 be treated fairly and investigated. But one other point to make is that the system is stacked against

00:33:57.300 complainants. Not stacked against complainants, but it is stacked against the state.

00:34:03.720 So when someone makes an allegation, you're inviting the state to prosecute someone. And our justice system is set up so that defendants who are individuals have more have we have to try and level the playing field between an individual who's being prosecuted by a state who can marshal enormous resources against them.

00:34:23.060 So there is a sense in which the process is stacked against complainants, but it's that stacking against that actually makes the process fair because we have to bring the defendant up to the position of a level playing field with the state.

00:34:37.900 And that's a difficult thing to do.

00:34:39.880 So just going back to what we should tell complainants about this process is, look, this is a crime that you're making an allegation of.

00:34:47.920 The allegation must be investigated robustly and fairly.

00:34:51.060 that will involve testing your account to make sure that it's true and also that if later on

00:34:59.060 when the case comes before court that we've tested it early to make sure that it can stand up to the

00:35:04.240 kind of scrutiny it's going to get in the courtroom complainants must be told that once it gets into

00:35:09.180 the courtroom that process is going to be hard and they're going to be challenged but none of this

00:35:15.540 tells should tell a complainant that they've got no chance of getting their case disposed of in a

00:35:20.660 fair way because all the evidence suggests that assuming everything goes right and that's a very

00:35:26.740 difficult assumption to make for all criminal offenses because the police is understaffed the

00:35:30.160 cps are understaffed etc but once it gets actually into the system it has every chance of being dealt

00:35:35.880 with fairly and i think that's the that's the that's one message we've got to put forward now

00:35:40.880 that's one one aspect i find there's a real risk that we're overly optimistic and people like me

00:35:47.740 who work in the system come across as saying oh the courts work brilliantly and no one ever has

00:35:54.600 any difficulties that's just not true and we i see probably the same amount of cases investigated

00:36:00.980 well as i see investigated badly but it would be wrong for complainants to believe that no matter

00:36:07.140 who they come forward to at the police no matter what happens they won't be taken seriously and

00:36:11.180 that sometimes is the narrative that is prevalent and i think that's a dangerous one

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00:37:34.620 So recently, one of Britain's most prolific rapists was arrested and convicted.

00:37:41.300 I can't remember the young man's name.

00:37:42.640 I think he was based in Manchester.

00:37:45.420 Now, I think it was 136.

00:37:48.160 I may have been slightly incorrect on the number of incidents that he's raped someone.

00:37:54.740 And I read this, and I don't know anything about this.

00:37:57.960 And I think, number one, how is he able to get away with this for so long

00:38:02.000 without the police tracking him down?

00:38:04.960 Surely there must be some level of incompetence there when it comes to policing investigations.

00:38:09.220 How has he managed to slip through the net?

00:38:10.940 And when we talk about rape, we obviously, we seem to, because we talk about women, but we don't seem to talk a lot about male rape.

00:38:19.460 Is that because it's a very, very small issue and it doesn't tend to happen?

00:38:23.860 Or is it a taboo that we simply don't discuss?

00:38:27.940 It's not a small issue for the people involved.

00:38:31.340 Socially, it's a lot smaller issue than it is for women.

00:38:33.600 So I think about, it's about a tenth, I think, of the complainants are male.

00:38:40.940 And the specifics of the case you're talking about, I mean, they were unique. This was a young man who had drugged people he'd found on the street. A lot of them weren't aware when they woke up in his flat that they'd been attacked. And it was interesting. I got involved in a discussion about whether it was right for the police to, once they'd found the videos on the chap's phone, you know, he was discovered by accident.

00:39:00.520 You know, he'd, so he'd, he'd, he'd made a complaint to the police about someone who he'd been out with. And it was only once they took his phone, they found reams and reams of videos of this, of this violence occurring. So they found him by accident, and he was the most prolific rapist in the UK's ever seen.

00:39:19.400 um so i don't think it's incompetence that was just a very difficult offense to identify because

00:39:26.260 a lot of the people had been attacked while they were under the influence of of of drugs

00:39:31.280 that had been administered to them without their permission um but that's not to say that um i mean

00:39:38.520 male rape is a distinct issue um but it's it's it's nonetheless a narrow section of the of the

00:39:47.700 totality of the offending, I think. But that's to say, look, it's also true that we don't talk

00:39:52.440 about it because it doesn't easily fit with the narrative that this is a culturally influenced

00:39:58.740 problem. It fits a lot better when you understand that rape is a crime of violence that occurs

00:40:04.520 between both men and women. Once you understand it's a crime of violence rather than a crime of

00:40:08.660 sex, gender becomes largely irrelevant. So I think you're right in the sense that we should

00:40:13.520 interrogate that side of the debate more. And I think it probably, the reason we don't talk

00:40:19.380 about it as much is because it doesn't fit into the kind of politicized discussion we have at the

00:40:23.520 moment. Well, you talk about the politicized discussion and the narrative. So if what you're

00:40:29.020 essentially saying is that this idea of us living in a rape culture is a myth, which I think is what

00:40:33.320 you're saying. I'm not putting words in your mouth by saying that. So the idea that the culture we

00:40:39.180 live in fosters an environment in which sexual violence becomes more likely i think is a myth

00:40:44.360 and a dangerous one as per the title of my book um that's not to say there aren't but the point

00:40:50.640 of the book was to the reason why um the rape culture idea is a myth is because it's too

00:40:58.020 simplistic by far um the reality and that's not to say that all the claims made by those who argue

00:41:05.940 that there is a rape culture are wrong.

00:41:07.880 They're not.

00:41:08.880 They just don't back up the argument

00:41:10.140 that there's a rape culture.

00:41:11.100 I get it.

00:41:11.440 Yeah, but they kind of take a very narrow view

00:41:13.680 and then expand it to a particular social theory,

00:41:15.980 which I don't think is right.

00:41:17.240 So my question was going to be,

00:41:18.960 why is it then if a lot of the claims

00:41:23.180 that are made are not true

00:41:24.200 and the broader allegation

00:41:26.700 that we live in this culture is not true?

00:41:29.200 Why is there this narrative?

00:41:31.840 Why is it that I keep being told

00:41:34.820 that I need to, you know, not listen to a song

00:41:37.520 because I'm one song away from becoming a rapist

00:41:40.040 because all men are potential rapists.

00:41:41.460 When the evidence is quite clear,

00:41:43.980 the people who commit rape are rapists, not men, right?

00:41:47.960 Why is it that we keep being bombarded with this kind of idea

00:41:51.180 that all men are potentially violent in that way?

00:41:56.000 Well, one thing that is interesting is I think that that argument is actually,

00:42:00.960 one thing I've noticed, the difference between 2015 and now,

00:42:03.920 is that argument's made less often now,

00:42:05.980 which is interesting.

00:42:06.920 You know, it has fallen away a little bit.

00:42:08.400 If you remember back to 2015, this was everywhere.

00:42:10.640 It was a real part of that, of the culture war

00:42:13.160 in a way which now may be perhaps slightly less.

00:42:16.660 But I think part of the reason is that

00:42:19.940 the origin of this idea comes from

00:42:22.020 a particularly radical section of feminist academia.

00:42:25.480 People like Brown Miller in the 80s

00:42:28.440 who were saying precisely that

00:42:30.680 every single man has the potential to be a rapist and even most forms of sex are in some form rape

00:42:37.860 you know that that they went as far as to say that and those ideas were prevalent amongst a

00:42:42.800 particular very narrow section of feminist academia for for a while and i think some of

00:42:48.880 that influence still maintains among particular academic circles so what we've seen i think over

00:42:55.660 the last 10 years is a shift from focusing on the material factors which prevent rape being dealt

00:43:02.840 with effectively. So, for example, in the 1980s, academics could point to particular laws which,

00:43:09.500 for example, a 24-hour limit on reporting, which was across a lot of states in the United States

00:43:16.040 throughout the 1980s, they could point to a lot of concrete factors which actually prevented

00:43:21.140 rape being dealt with adequately. So I think in New York, if you didn't report rape within 24

00:43:26.600 hours, then the case just would not proceed, which is remarkable. They could also point to

00:43:32.040 factors in English law, such as it was not against the law to rape your wife until the mid to late

00:43:39.020 90s. And there are a number of judicial decisions that they could point to, which really stack the

00:43:44.640 system further against the complainant. So there were real in the past, 80s and 90s, I think there

00:43:50.220 real concrete factors that were still in the way of dealing with this case, with this offence

00:43:55.040 properly. As those have fallen away, what I think we've seen is a shift to focusing on individual

00:44:00.400 attitudes. So in recent years, you've seen the kind of explosion of research into what they call

00:44:06.660 rape myths. And these are, it's psychological research into members of the public and their

00:44:13.260 attitudes towards particular offences, particularly rape. And they use the, so you'll see headlines

00:44:18.720 very often that say psychological research says that, for example, jurors think that if you've

00:44:24.040 been sexually assaulted, you should react in a particular way, where the research shows that

00:44:28.960 victims of sexual violence react in a complex myriad of ways and not necessarily one way or

00:44:34.940 the other. So we've seen a shift away from identifying the concrete factors which prevent

00:44:40.400 this offence being dealt with to a focus on individual attitudes in the research. And that

00:44:46.060 still allows them that still allows a particular section of academia to propagate the idea that

00:44:51.180 it's a cultural sociological problem at the level of people you know people are influenced by the

00:44:58.400 culture that enables sexual violence and they're so they're so imbued with retrograde attitudes

00:45:04.080 about women that this offense isn't being dealt with properly but I do think that the reason why

00:45:09.680 that remains a myth is because they ignore the real advances that in part they ignore the real

00:45:14.660 advances that we've had in dealing with these cases. You know, all those retrograde appalling

00:45:19.360 laws have peeled away over time. And, you know, juries are now directed on not relying on myths

00:45:25.740 like, oh, she was wearing a short skirt, she was up for it. You know, going into someone's house

00:45:30.020 doesn't necessarily mean consent. They're directed with all of those things. We've discussed the

00:45:33.860 statistics around jury decision making, which shows absolutely no evidence of bias. So there

00:45:38.080 has been real progress in that regard. And I think that's why now we see this explosion of research

00:45:44.280 into rape myths and rape myth attitudes and you know there's real problems with with that area

00:45:51.420 of research you know my the one of the reasons i was drawn into this area to begin with was

00:45:56.020 an old friend of mine who's sadly no longer with us helen reese who's an amazing academic at the

00:46:00.680 london school of economics and she got she was very very far braver than i was around this issue

00:46:06.260 and published papers around this area of research right as it was starting to get momentum so she

00:46:11.540 wrote a piece, a legal academic piece about rape myth research, just raising some questions about

00:46:18.520 their methodology and about the questions they were asking. And there was an explosion of reaction

00:46:22.860 from this particular section of academia. And it just struck me that for some sections of

00:46:32.300 academic feminism, I think there's a lot at stake because this issue has politically

00:46:36.900 galvanized them for a long period of time. And there's now a new generation of academics coming

00:46:41.880 up that are practicing in this particular area. And that's not to say that they're not making

00:46:47.180 an important contribution. I think their work has to be situated in a broader context, which says

00:46:53.460 that we shouldn't be frightening rape complainants and rape victims away from engaging with the

00:47:03.440 system because it's not inherently misogynistic really anymore. And they do have a good chance

00:47:10.720 at a fair hearing. A statistic that is always raised is the fact that the vast majority of

00:47:16.040 people are sexually abused or raped by somebody that they know. It's very, very rare that you get

00:47:21.040 your John Warboys, you know, that sort of prolific sex offender who is incredibly predatory and

00:47:26.460 preys on strangers. Most people who do these horrendous crimes, they know that they know the

00:47:32.400 victims they essentially groom them and then this happens is that true and therefore does it make it

00:47:39.080 less likely that somebody will report it if it's somebody who is you know a beloved family friend

00:47:44.300 yeah relative uncle whatever well there's very i mean you're right in the sense that most um

00:47:49.800 rape defendants are known to their victim in my experience a lot of the time known to is quite a

00:47:56.440 broad category so it might be someone at their university or someone at their um someone who

00:48:01.700 they've a friend of a friend or something similar. I don't think it's, as I hope I've

00:48:07.620 communicated, it's difficult to make any generalisations about who is more likely to

00:48:13.380 than not commit these kinds of offences. But I think in general, what this might reflect is that

00:48:23.080 recent changes in the law have made it, have broadened the category of rape. I think that's

00:48:31.660 a fair thing to say it's it's broadly acknowledged that the new the changes to the law that came in

00:48:36.140 in 2003 broadened our understanding of what rape was and that was a very good development in some

00:48:43.580 ways because you know you don't have to go back that far to a time when people didn't believe that

00:48:49.380 anyone who'd been on a date and had subsequently been raped couldn't have been raped because they

00:48:53.920 were on a date you know we just didn't accept that that was true now the category has widened

00:48:58.980 to such an extent that I think a lot of sexual encounters which once might have been understood

00:49:06.500 as difficult or troubling now get recast as rape and sexual violence. I think there's a risk there

00:49:13.500 that's the risk of expanding the law is that more and more of these interactions become drawn into

00:49:20.020 that net which I think we discussed previously but that might be one reason why people are more

00:49:25.280 willing to come forward and make allegations about people they know because our understanding

00:49:29.800 of what it is has expanded and that comes with benefits but it also comes with risks and i think

00:49:34.520 that's what we've got to understand that there's a duality of it it's not it's not that you know

00:49:39.720 we need to refine our understanding of rape to be very very straightforward and well we're only

00:49:44.680 going to prosecute this we're only going to prosecute that but we need to understand that

00:49:48.080 the expansion that's taken place over the last 20 years has benefits but also risks and is there any

00:49:54.760 truth i know you said there's no correlation between and you know and we shouldn't generalize

00:49:59.320 but is there a truth that people who are abused then go on to become abusers or again is that

00:50:03.760 another myth that has been the honest answer is i don't know and the but but i think that

00:50:09.300 it's very difficult always to firstly it's difficult to establish a correlation but then

00:50:15.560 a correlation is never a causation and i think the troubling and every single statistic you can

00:50:21.480 pick out around this crime can be interpreted in a thousand different ways so that's what makes it

00:50:26.980 very difficult to talk about um but the honest answer is i don't know whether there is even a

00:50:31.780 correlation but finally you've asked a bad question well done well just before we've got a little bit

00:50:38.840 of time left i i wanted to ask you i think it's a very difficult question but i'm going to ask it

00:50:42.740 anyway because you you talk about this what the person was wearing thing uh and there there's

00:50:50.080 always the conversation like how do you teach people how to prevent a crime from occurring

00:50:56.780 without placing the blame on them for a crime occurring and we seem to have completely lost

00:51:02.800 the ability to have an honest conversation about that you know what i mean like i remember i was

00:51:06.960 walking through a rough part of edinburgh uh taking a couple of speakers uh stereo speakers

00:51:13.400 to a friend's house and i was acutely aware that i was walking through a rough area with something

00:51:18.620 that people may want to take from me using violence right and so i think i put them in a

00:51:25.020 bag and i hit them do you know what i'm getting at i do um so how do we have that conversation

00:51:30.740 honestly because i mean i would argue that it is unarguable that if dressing in a certain way

00:51:38.640 would encourage male attention and therefore expose you to risks right as a woman so how did

00:51:45.460 how do you talk about preventing crime without placing the blame on people who should not be

00:51:50.620 blamed for a crime being committed against them yeah i mean my response is not not to tell women

00:51:54.940 how to dress yeah and not to yeah but i'm russian mate so you know i don't have those limitations

00:52:00.680 so i i mean um the response should never be for women to i i sort of am sympathetic to the idea

00:52:08.200 that the response to rape should not be tell women to behave differently sure because um

00:52:13.920 that in itself mischaracterizes the nature of what rape is sure and it conflates it with sex and

00:52:20.480 and attraction and all that stuff so i guess what i'm saying is if i think i think i've i think i've

00:52:26.560 got an answer to oh sorry okay difficult bit of your question which to go back to the the stuff

00:52:30.960 around um um rape myths right so helen um i'm crediting her with this because it was her point

00:52:38.880 really she identified a survey that was put out in around 2004 and the report of the survey was

00:52:47.860 one in three women think that rape victims are partly to blame for what's happened to them

00:52:53.660 partly to blame when you looked at the research what these women had been asked was do people

00:53:02.180 involved in these cases have some responsibility for what happened to them. And what Helen

00:53:09.240 identified was that there is a huge difference between responsibility and blame. So I think

00:53:16.880 women tend to realize, I think all women realize that they have some responsibility for their own

00:53:23.860 behavior. And women realize that they are responsible for their interactions with other

00:53:31.640 human beings you know it goes without saying um that's not the same thing as to say that women

00:53:37.380 should be blamed for what's happened to them because blame should not figure at all um so

00:53:43.880 it's about the way we have the discussion is to is to really draw out the distinction between

00:53:47.900 responsibility and blame we can say that women are smart enough to know that if they go out on

00:53:54.780 a date with a guy and they invite him up after the end of the date when there would be no when

00:54:02.360 you know when they have a reason to go their separate ways that's not consenting to sex

00:54:07.920 but there is a sexual connotation to that decision yeah and to pretend that most women don't know

00:54:14.120 that already is ridiculous yeah so a lot of the discussion around rape culture pretends that

00:54:19.860 there is no content to that decision whatsoever most women know that there is

00:54:25.780 you know the example that helen used in the in the paper was is coming up for coffee suggestive

00:54:33.660 of sex now of course inviting someone up for coffee is not consent to sex but also most people

00:54:41.420 most men and women understand that that is a form of social communication and also most people

00:54:48.180 understand that consent and the kind of the process that leads up to a sexual encounter

00:54:53.920 is a deeply intimate, difficult human process that is often worked out between the parties

00:55:01.740 as it unfolds. You know, when you sleep with someone for the first time, you are attempting

00:55:05.600 to read signals all the time, right? That's an organic, difficult process that involves,

00:55:11.700 you know, assumptions from both parties. It involves differences of interpretation.

00:55:16.740 and I think what was so valuable about Helen's work was that it was saying these aren't necessarily

00:55:22.200 myths they are the categories of understanding that we all bring to those moments you know when

00:55:27.440 you're out on a date or when you're out you know when you when you when you're first engaging in

00:55:32.360 these kinds of liaisons with a new person it involves uncertainty and it involves risk right

00:55:38.600 it's risky because you're putting yourself out there in a way which is difficult and it involves

00:55:45.040 a negotiation between two people, right? It's a mutual dance. And the American feminist writer,

00:55:54.720 Camille Paglia, put it in quite strong terms. She said that female freedom is the freedom to risk

00:56:00.220 being raped. Now, that's a very strong way of putting it. But what she was talking about there

00:56:04.640 was that if you believe in women's sexual liberation, which I think most people in the

00:56:10.460 western world tend to do you know they believe that men and women should have equal rights to

00:56:15.360 sexual liberation then that always comes with a degree of risk because sex and intimacy occurs

00:56:23.380 in an unregulated space between human beings for now for now yeah but it doesn't it hopefully

00:56:29.000 remains a kind of uncontrolled sphere where people have to work it out for themselves

00:56:33.540 so the the book talks that my book talks about the risk that the expansion of the law

00:56:39.020 necessarily involves a contraction of that space

00:56:42.160 where we're left to figure it out for ourselves.

00:56:45.200 And so I think the way we have this discussion

00:56:47.040 is to get rid of the gendered men and women,

00:56:49.360 men are bad, women are feckless discussion completely.

00:56:53.260 We just need to recognise that when people go out

00:56:55.800 and are starting to live and interact with people,

00:56:59.080 they are going to take risks,

00:57:01.540 that it's a little bit dangerous always,

00:57:03.900 but that's what's great about it,

00:57:06.020 that we're both to some degree responsible

00:57:08.320 for what happens in the course of those interactions that that doesn't translate into

00:57:13.280 being blamed if something goes terribly wrong but at the end of the day this is an organic process

00:57:20.420 between two individuals that will be unpredictable dangerous but also you know quite exciting you

00:57:28.840 know for that reason it's exciting because it's unpredictable and that's easy for me to say as a

00:57:33.620 obviously because I'm inherently less likely to be at risk but we can't completely drain that

00:57:41.680 interaction of any risk because if we do that it's not the interaction that we started out with

00:57:47.380 and look this is another question which is quite difficult to ask in that so I used to work in a

00:57:55.220 pub for many many years and you see couples come in or they're on a date and you know especially

00:58:01.640 in Britain we've got such a you know a large drinking culture that by the end you see these

00:58:07.840 couples tottering out absolutely you know leathered and you think in reality is anybody able to give

00:58:14.560 consent at this point and how difficult does that make a conviction if you know the woman wakes up

00:58:21.660 and she realizes something onto water's happened goes into a police station and they go right go

00:58:27.140 through the list of events of what's happened and she's drunk and she doesn't really remember it

00:58:31.460 accurately or clearly? Well, as a point of fact, you can get a conviction in a rape case even where

00:58:37.380 the complainant has absolutely no recollection of what happened to them. So if they are completely

00:58:42.180 incapacitated and can't remember what happened, a prosecution is still possible. They just have

00:58:46.640 to piece together evidence from other areas, so CCTV and piecing together the account as best they

00:58:52.980 can. There is a piece of law, a case called Brie, which says that if someone is incapable

00:59:02.480 of forming consent, if they're so drunk that they're incapable of giving consent,

00:59:07.100 then that's capable of being raped. You know, you shouldn't sleep with someone if they're

00:59:11.640 demonstrably incapable of giving you consent to sleep with them. But what Brie also says is that

00:59:17.400 drunken consent is also consent you know if you are capable of forming that mindset of agreeing

00:59:24.260 to sexual intercourse and you do so then that can constitute consent so and that question as to

00:59:30.900 whether someone was capable of giving consent is usually left to the jury to decide so if you're

00:59:35.860 sat on a jury and you're considering a case in which one person says I didn't consent I was very

00:59:39.460 very drunk and he took advantage and the other party saying they did consent here's the reasons

00:59:44.260 why I thought they were consenting, then the issue for the jury will usually be,

00:59:48.980 were they so drunk that they couldn't form consent in their own brain? And often actually,

00:59:53.880 like the drunk consent cases are quite easy to pick apart because you look at someone and you

00:59:58.160 say, well, they're clearly not capable of forming consent. Or you look at them and you say, well,

01:00:03.600 they appear to be compus mentis, they're able to stand, et cetera, et cetera.

01:00:07.020 So that's a question for the jury. It's a matter of fact that the jury have to determine usually.

01:00:11.300 You see, even something like that, I mean, how many couples in this country will go home from a pub on a Friday and Saturday night completely, as you say, leathered, both very drunk and have sex and not, there is no issue there. Do you know what I mean? It's just, it's so cool.

01:00:27.100 Well, this is one, so one, just one very quick point about the Crime Survey for England and Wales being boring about research again.

01:00:33.220 What they, that's the Crime Survey for England and Wales is where people get the figure of 83,000 rapes every year.

01:00:39.000 So that's an often touted figure that there's 83,000 rapes every year.

01:00:43.100 The question that that survey asked people was, have you ever been penetrated where you haven't given consent or when you've been too drunk to consent?

01:00:55.260 and lots of people said yeah like over the last 12 months with my partner with my husband or my

01:01:02.240 long-term boyfriend i've had sex in circumstances where neither of us had a clue what was going on

01:01:07.100 right so that means yes that gets recorded as an instance of rape and what the crime survey did

01:01:13.300 was they stopped asking women about how they themselves interpreted what had happened to them

01:01:18.520 right because when they used to run the survey a bunch of women turned around and said well i

01:01:22.240 I didn't consider that rape because it's my boyfriend or my husband

01:01:26.040 and we were both trollied.

01:01:27.920 And what I think that illustrates is that sex is an intimate thing

01:01:31.800 and often the boundaries for what is acceptable and what is not

01:01:36.360 between a couple are negotiated between them.

01:01:39.580 And it's not always easy to put a simplistic understanding

01:01:42.340 of what's occurred onto it.

01:01:43.660 You can't really label.

01:01:44.840 There's all sorts of things that go on in the bedroom

01:01:46.840 that you can't label one thing or the other

01:01:49.660 because they're individual and they're distinctive.

01:01:52.240 um so that's one interesting aspect of that is that couples will do all sorts of things that

01:01:57.360 the law is too blunt to deal with and shouldn't have no involvement with but the risk is that

01:02:02.860 the more we expand the sphere of the law into that area the more likely it is that these organic

01:02:08.340 you know intimate relationships are drawn into a legal system that's ill-equipped to deal with

01:02:13.300 them all right well our time is up i'm sure all our viewers have enjoyed this cheery and upbeat

01:02:17.660 episode with lots of banter and back and forth but it's i mean it's a very serious issue that

01:02:23.340 that that requires that kind of approach and that's why we've not tried to you know sure

01:02:29.080 banter about it be wacky about it luke remind everybody your book and where to get it so two

01:02:35.140 books the first yes why rape culture is a dangerous myth it was published five years ago but my latest

01:02:40.180 book is um human rights illusory freedom why we should repeal the human rights act and where can

01:02:47.080 people follow you on social media so i'm i've got ridiculous twitter handle which is luke s

01:02:51.060 gittos 1986 well we'll stick it in the video as always thank you for watching and we'll see you

01:02:56.960 in a week with another brilliant episode see you next week guys take care

TRIGGERnometry - April 19, 2020

Is Rape Culture a Dangerous Myth？

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