British Poll: Rape and Victim-Blaming

Reader MB sent me a link to this story:

A new ICM opinion poll commissioned by Amnesty International indicates that a third (34%) of people in the UK believe that a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner.

The poll, ‘Sexual Assault Research’, published today (21 November) as part of Amnesty International’s ‘Stop Violence Against Women’ campaign, shows that similar “blame culture” attitudes exist over clothing, drinking, perceived promiscuity, personal safety and whether a woman has clearly said “no” to the man.

For instance, more than a quarter (26%) of those asked said that they thought a women was partially or totally responsible for being raped if she was wearing sexy or revealing clothing, and more than one in five (22%) held the same view if a woman had had many sexual partners.

Around one in 12 people (8%) believed that a woman was totally responsible for being raped if she’d had many sexual partners.

Similarly, more than a quarter of people (30%) said that a woman was partially or totally responsible for being raped if she was drunk, and more than a third (37%) held the same view if the woman had failed to clearly say “no” to the man.

More.

UPDATE: See also Volsunga’s post.

UPDATE 2: And The F Word.

UPDATE 3: Mind the Gap has a list of links.

This entry posted in Rape, intimate violence, & related issues. Bookmark the permalink. 

321 Responses to British Poll: Rape and Victim-Blaming

  1. 301
    mythago says:

    Again, you really don’t seem to have a concept of women not having a default state.

    Again, you really don’t seem have a concept of how criminal law works, and you don’t appear know the difference between ‘elements of a crime’ and ‘affirmative defense’.

    The default state of a criminal defendant is that his innocence is presumed. It is the prosecution’s job to prove every element of the crime beyond a reasonable doubt. “Without the victim’s consent” is an element of the crime of rape.

    If you require the defendant to prove consent, you’re making it an affirmative defense. Which means that “without the victim’s consent” is NOT part of the crime of rape. Your rape law now becomes “sex with another person is rape, but a defendant may prove that the other person consented and therefore it was permissible sex.”

    It’s not about assuming that the default state of women is consent (though surely there are idiot judges and juries who do).

  2. 302
    Jesurgislac says:

    It’s not about assuming that the default state of women is consent

    Indeed, it is. But this debate has gone stale.

  3. 303
    Richard Bellamy says:

    John is found with Steve’s lawnmover, and Steve presses charges. John says, “He gave it to me when we were drinking one night.” Steve says, “I don’t remember that night at all, I was so drunk, but I don’t think I would have given away my lawnmower.”

    This case would not go to a jury, and charges against John for theft would be dropped.

    Is Steve’s default state consent to theft?

  4. 304
    mythago says:

    But this debate has gone stale

    If by ‘stale’ you mean that you still don’t understand the whole having to prove somebody guilty of a crime thing, yeah, it has.

    You’re conflating criminal procedure with ordinary behavior. In real life, the default state is ‘non-consent.’ In a criminal proceeding, the default state is ‘you must prove the accused did this bad thing’.

  5. 305
    Lee says:

    Jesurgislac and Mythago, thanks for your very interesting posts. I think I understand where you’re trying to go, and it appears to me that Jesurgislac is talking about the assumptions out of which the current way the crime of rape is defined and prosecuted developed, while Mythago is talking about how things work in the current criminal law system. But I think in order to address Jesurgislac’s point, we would have to come up with a whole new and different criminal justice system. I’m not a lawyer or a constitutional scholar, so I can’t even begin to go there, though.

  6. 306
    nobody.really says:

    you don’t appear know the difference between “elements of a crime” and “affirmative defense”.

    Going a bit off-topic, this distinction is clear procedurally but clouded conceptually. Conceptually, a legislature cannot override the Constitution. Conceptually, the Constitution grants a defendant a Due Process right to be presumed innocent until a prosecutor persuades a jury of every element of a crime.

    BUT the definition of the crime is a matter (largely) left to the legislature. Thus, I believe that states have generally drafted criminal statutes to make lack of sanity an affirmative defense, rather than make the prosecutor prove the defendant’s sanity. This legal practice seems to comport with everyday thinking because we tend to assume that a person is sane until proven otherwise. But this is not so different than Jesurgislac’s argument about creating a legal presumption that better comports with everyday presumptions.

    So if the legislature defines rape to mean “sex without the consent of all parties,” then the prosecutor has to prove all these elements. But conceptually the legislature could define rape to mean “sex, with the proviso that consent shall be an affirmative defense.” This statute would, in effect, shift the burden of proof to the defendant to demonstrate consent. (That is, men would assume the risk of a rape conviction every time they have sex. Presumably they’d be free to pursue documentation of consent if they wished.)

    More generally, a legislature could conceptually adopt a new criminal code as follows: “A person who is found to have pissed off a police officer shall be deemed guilty of violating The Criminal Code unless the person can demonstrate that 1) she did not commit murder, 2) she did not commit manslaughter, 3) she did not commit tax evasion, 4) she did not commit littering, 5) ….” In effect, this would adopt a typical criminal code, but with all the burden of proof shifted to the defendant.

    I suspect a court would reject The Criminal Code for violating the Due Process clause, but the limits on the ability of legislatures to shift the burden of proof is unclear to me.

    Ok, back to the topic at hand….

  7. 307
    Jenny K says:

    The case wouldn’t go to a jury in part because Steve can get the lawnmower back. (I’m assuming even though you don’t say so, that the assumption is that Steve got his property back.)

    But – it might go to a jury after all if the item in question was car or a piece of jewelry – something more expensive than a lawnmower – even if John gave it back.

    (and people wonder why we bitch about rape being minimized)

    But what if Steve woke up and found bruises on his body? And John claimed that Steve was the instigator? Or that Steve went along with some stunt that would have fit in well on “Jackass”? It may very well go to a jury then, even if Steve had been drunk.

  8. 308
    anonymous says:

    But what if Steve woke up and found bruises on his body? And John claimed that Steve was the instigator?

    Jeez, I guess it really depends on the community and the specific police force and prosecutor, but most of the places I’ve lived, I tend to think this wouldn’t get anywhere near a courtroom. It would be more a “don’t get drunk and fight, dumbass,” reaction.

  9. 309
    Richard Bellamy says:

    I tend to go with “anonymous” on that one. A fight between two drunk guys is not going to court for “aggravated assault” or anything like that. Disturbing the peace, maybe, if its in public, but not assault.

    This has been my overall point. I do not want to minimize the importance of preventing rapes — I just don’t see the benefit of looking at it as a rape problem instead of a violence problem. Posters here have provided an impressive array of statistical evidence and anecdotes of the problem of rape in America. What I have seen none of, however, is any comparative evidence of how those statistics and anecdotes compare to non-rape violent crimes. How many times do people get “beat up” in a day? How many of those get reported to police?

    Piny’s link up in #86 seemed to show that rapes lead to conviction at a comparable rate to other crimes. The Dept. of Justice seems to think that the rape rate has dropped by a two-thirds over the past generation.

    http://www.ojp.usdoj.gov/bjs/glance/rape.htm

    I just fail to see what makes rape “different” so that fighting “rape” will lead to less violence in the world, compared to just fighting “violence” overall.

  10. 310
    Robert says:

    That is, men would assume the risk of a rape conviction every time they have sex.

    That assumes that “sex” is something that men do to women.

  11. 311
    nobody.really says:

    Or with other men. Or with themselves, although admittedly it seems unlikely that they couldn’t demonstrate consent. :-)

    Ok, ok, I should have said anyone having sex would assume the risk for a rape conviction.

  12. 312
    Robert says:

    Sexist! Homophobe! Racist! Antidisestablishmentarian!

    (Have I achieved moral supremacy yet?)

  13. 313
    mythago says:

    But conceptually the legislature could define rape to mean “sex, with the proviso that consent shall be an affirmative defense.”

    Right. Which would mean that any act of sex could lead to criminal charges, and all the prosecutor would have to show was that sex occurred. It would then be up to the accused to show that the sex was actually consensual. I hope I’m not the only one who sees the problem with this approach.

    The problem is not that the law requires proving lack of consent. The problem is that people (and therefore judges, jurors, prosecutors, cops) are biased in what they see as showing ‘consent’.

  14. 314
    mousehounde says:

    Well, we can add another item to the list of things women need to do in order to not be raped:

    Never be in a room with a sleeping man.

    A man has been acquitted of sexual assault after a judge ruled he was asleep during the attack…
    ” Jan Luedecke, a 33-year-old landscaper, had met a woman at a party in July. Both had been drinking and fell asleep on a couch.

    The woman woke up to find Mr Luedecke having sex with her and pushed him off. He immediately woke up, but told the court he only suspected they had had sex after going to the bathroom and finding he was still wearing a condom.

    A sleep expert testified at his trial that Mr Luedecke suffered from sexomnia, a sort of sleep walking that includes sexual acts, likely brought on by alcohol, sleep deprivation and genetics.”

    The judge accepted the argument.

  15. 315
    Jenny K says:

    “Jeez, I guess it really depends on the community and the specific police force and prosecutor,”

    and gosh, I thought it would at least partly depend on the actual evidence at hand

    (Does John’s story hold up? Are there witnesses or physical evidence that contradict John’s claim? Did he do anything to egg Steve on? Was John drunk when he did this?)

    It goes back to mythago’s distiction between consent not being the default and the defendant not having to prove consent was given, and why these are not contradictory. The presumption that consent was given is implied in the presumption of innocence, but this also means one can prove guilt not only by proving beyond a reasonable doubt that the defendant did not obtain consent, but also by showing that any reasonble person would have not been certain of consent. If consent is not the default assumption, then reasonable people go to resonable lengths to be certain of consent. If consent is the default, then resonable people only need to pay attention when they hear “no” loud and clear.

    This is what causes the most problems. Most people give defendants aquaintance rape more leeway in what constitutes certainty of consent than they would if the same person had “borrowed” a piece of property. John, in the original story, would not have been prosecuted even if Steve hadn’t been drunk because the size of the crime is also important in determining liklihood of prosecution. However, if he had “borrowed” something really expensive – something closer to the value we place on our bodies and autonomy- and John could say with certainty that he didn’t give permission, there is a decent chance of a trial. Furthermore, the jury would give John less leeway in being certain of consent with regards to Steve’s car or suitcase of millions than they would if the “property” in question was Sara’s body. There are several reasons why this is so, but most of them fall back on the idea that consent is considered the default by many – which is what the poll was about.

    Since Steve – and Sara – can’t give consent when they are drunk, if Steve was drunk then what happens to John depends partly upon how expensive the item was and, more importantly (just as in rape cases) if he was drunk as well. If John was capable of being certain of consent, then he may still be charged. This does not mean that he is presumed guilty, just that the prosecution must prove that he was sober (and thus capable of giving and judging consent) and that Steve did not, or could not, give consent. Steve being drunk, and possibly stupid, does not negate any crime that John may have committed.

  16. 316
    anonymous says:

    and gosh, I thought it would at least partly depend on the actual evidence at hand

    Yes, of course, physical evidence is important, but in the scenario you prtesented, the evidence you offered was “Steve woke up and found bruises on his body.” I believe, as does Richard Bellamy, that a scenario like that . . . a he said/he said drunken brawl wouldn’t end up in court any more than the Dougal case did, and for the same reasons.

    I’m not saying that there aren’t problems with our system, especially when it comes to consent, but as Mythago said, the problem is that people are biased in what they see as showing ‘consent,’ not that our system actually presumes a woman’s consent.

    However, if he had “borrowed” something really expensive – something closer to the value we place on our bodies and autonomy- and John could say with certainty that he didn’t give permission, there is a decent chance of a trial.

    Right, but isn’t the point that John is unable to say with certainty that he didn’t give permission? Hell, I’ll go much farther than you . . . if he’d ‘borrowed’ something really expensive, and John could say with certainty that he didn’t give permission, a trial would be very very likely, but that’s not what happened.

    You’re basically saying “if everything was completely different, we’d get a different result, and that’s because we presume consent.” I beg to differ.

    If the accuser in the Dougal case had been able to say with certainty that she hadn’t granted consent, I’d say that it’s very likely there would have been a trial. Maybe he would have been convicted, maybe not (and god knows that I’m not trying to argue that a just result would be assured), but the fact is that she wasn’t able to do that, and she didn’t do that. He claimed consent. She did not contradict his claim. As I said, I think that there are legal changes that could be made to address this sort of issue (drunken consent), and it may be that those changes have already been made in the UK, and, no, I don’t believe that drunken consent is consent, and that’s a whole seperate issue anyway, but that’s not what I’m discussing.

    Furthermore, the jury would give John less leeway in being certain of consent with regards to Steve’s car or suitcase of millions than they would if the “property” in question was Sara’s body.

    I agree, in a very general sense. I think often the jury would, which is the issue Mythago raised earlier.

    As a side issue, I’ve been surprised here several times by the assumptions certain women have made about ‘how things are’ for men. God knows that I’m not (even for one SECOND) one of those ‘men have it worse than women’ people, and I DO believe in the patriarchy, and that it’s a bad thing that needs dismantling, but some of the assumptions made about how good men have it are laughable.

    The first one that really struck me was in another one of the “blaming the rape victim” threads where someone said something along the lines of “well, a man who had unprotected sex and caught an STD would never be called stupid!” I found myself thinking “in which world was that, exactly?” Guys who get into trouble of one sort or another due to unprotected sex are called stupid often and copiously. Or how about the example of the man who gets mugged who would “never be told he shouldn’t be in a bad part of town at night.” Also bullshit. I have a buddy who was carjacked, and I’d have to say that 75% of the comments on the carjacking included something like “why was he in that part of town,” or “why did he stop” or “why didn’t he just speed away.” Now, we can argue as to whether or not these reactions are morally right, and we can argue its relevance to the ‘blaming the victim’ discussion, and I’m totally not arguing that these are necessarily good parallels, but the assumption that men in these situations are given huge leeway is simply not, in my experience, true.

    Similarly, your drunken brawl example just doesn’t match my experience, or the experience of most of the people I’ve spoken with. If person X wakes up after a night drinking to find that he’s been beat up, and person Z says “Dude, I was sober, and you totally attacked me, and I had to defend myself,” and X can’t recall what happened, it’s not going to see a courtroom. I DO BELIEVE that men have it much better than women in our culture, but it’s not as if our law enforcement culture is leaping to protect us either on scant evidence. There’s plenty of institutional apathy to go around.

  17. 317
    Dei says:

    Loads of words here — how about a picture?

    So, would the following cartoon represent drunken consent? http://www.sexylosers.com/243.html

    I took a look at that cartoon, went ‘ugh’ then reflected that I could see this dish prepared pretty much any weekend at just about any bar around here.

    Thoughts?

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  19. 318
    Matthew says:

    About comment 252:
    Pardon me if I am wrong, but I assume that a typical rape case starts, after the alleged rape, when the alleged victim files a police report stating a sincere belief that the defendant or a person who alleged by the police to be the defendant (perhaps they showed the victim a lineup and they picked the defendant but my point stands) raped the alleged victim.
    If the identity of the alleged perpetrator is known, they ask them what relationship they had with the defendant. If the defendant says that they had sex with the alleged victim that corresponds to that in the complaint, a trial can begin. Otherwise, the authorities need to find proof of the incident described in the complaint or a trial is pointless.
    If the identity is not known, the investigators have to determine, from the evidence of the incident, the identity of the alleged perpetrator, and find sufficient proof to convince the prosecutor that a conviction is [possible/likely enough for the case to be worthwile: delete whichever fails to suit your views on human nature] and if they do that the case goes to trial.
    A case leading to a trial typically, therefore, includes evidence that the incident happened and evidence that it constituted rape.
    In theory, a trial could start with the jury being handed the facts of the case and a rebuttal from the defence, but it starts in the typical legal system simplified for television with the allegation, that X incident happened and that it constituted rape and that the defendant was the perpetrator (I think that a Grand Jury is supposed to decide the first two before the main trial starts), and the defendant is asked if they contest the allegation, or in legal terms how they plead: Guilty or No Contest mean that they do not contest, while Not Guilty, the default plea, means that they do contest.
    Then the prosecution presents all of the evidence that persuaded them to bring the case to trial, and then the defence presents a rebuttal.
    Speaking of the Dougal case, the girl was so drunk she had to be escorted home by a guard, who admitted to then having sex with her. The author of Post 285 asserts that since she was too drunk to know whether or not she consented and he asserts that she consented, the court had to find that she did consent. The point is that the very fact that she was too drunk to remember if she consented rendered her incapable of consenting in the first place, or possibly that the judge was too incompetent to know this and should be fired, I forget. It would in theory be possible for a person to not realise this and assume her to be capable of consenting to sex, but the defendant was escorting her home precisely because she was that drunk.
    PS, on the reasonable man thing, it is possible to commit rape and reasonably believe that rape is not occuring. The hypothetical most often invoked in my experience is in BDSM, by causing the dominant to incorrectly believe that the victim knows the safeword for the session. This is one of the reasons that it is usually a criminal offence to cause someone else to rape a third party. And regarding the assumed consent/non-consent issue: Children, the impaired, and possibly other groups are definitely assumed not to consent and, in theory based on the fact that patients can be assumed to consent to resuscitation (often violent and invasive — defibrillators for instance have been used to kill people and intubation involves sticking a tube into the larynx) unless they indicate otherwise, anyone who can be proved to need sex to save their life (this does occur in nature, for instance in un-neutered female ferrets) would most likely be assumed to consent to the minimum amount of sex required for the lifesaving effect in the absence of evidence to the contrary (I, for one, am certain that I would rather be taken advantage of than left to die).
    PS, on comment 310, people are known to sleepwalk, and to commit while sleepwalking what would be criminal acts were they awake, and they should probably be required to take reasonable steps to prevent reoccurences, if any exist of course, as a condition of release if they sleepkill or sleeprape someone.

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