Tuesday, 25 January 2011

The Stern Review (2010) - A Report by Baroness Vivien Stern CBE Of An Independant Review Into How Rape Complaints Are Handled By Public Authorities In England And Wales (part 2 of 2).

(In this second part of a two-part series of blog posts on the 'The Stern Review', the sections of the report concerned with 'The Sexual Offences Act 2003', and false rape allegations will be summarized.)

[p.13]: The Sexual Offences Act 2003 - Is The Law Understood?

The Sexual Offences Act 2003 brought in a new definition of rape. It says that rape occurs when someone 'intentionally penetrates the vagina, anus or mouth of another person with his penis'; that the other person does not consent to the penetration; and the perpetrator does not reasonably believe that the other person consents.'

[p.13]: 'It is important that the 2003 law is understood. It says that one person having sex with another when that person has not agreed to it is rape. The law does not say force has to used for it to be defined as rape. Violence is not part of the definition. The absence of consent is the defining factor.'

[p.13]: The court will not be satisfied if the perpetrator thought that there was consent but that belief was unreasonable.'

[p.37]: 'The Act says: 'Wether a belief is reasonable is to be determined having regard to all circumstances, including any steps A has taken to ascertain whether B consents.'

[p.37]: 'The inclusion of 'reasonable belief' is considered by some to be one of the most significant changes brought in by the 2003 legislation, where an honest but unreasonable belief in consent can no longer result in the accused's acquittal.'

[p.37]: 'All these legal changes have been in a similar direction, to move from the underlying presumption that victims are likely to be lying or were somehow negligent in letting the rape happen towards a standpoint that sex without consent is rape and all other factors about a person making a complaint of rape are irrelevant to that central fact. In the law of England and Wales there is now no question that sexual intercourse without consent, where there is no reasonable belief in consent, is the crime of rape, whether the people involved know each other or not, have had a previous relationship with each other or not, or are married to each other.'

[p.38]: 'How far there can be consent to sex when one or both the people involved are very drunk has been a controversial matter, and the Court of Appeal made some comments on it in a case called R v Bree in 2007. When the person complaining of rape is 'unconcious as a result of her voluntary consumption of alchol, the starting point is to presume that she is not consenting to intercourse'. That, says the Court of Appeal, is 'plain good sense'. The Court also said that if, through alcohol (or any other reason), the person has temporarily lost her capacity to choose whether to have intercourse, she is not consenting. If on the other hand, despite having drunk a lot of alcohol, the person is still capable of saying yes or no and agrees to sex, then it is not rape. Wether or not the victim has voluntarily drunk too much does not lead to the conclusion that he or she voluntarily agreed to have sex.'

[p.39]: 'These matters are complicated and difficult to understand for those who are not trained in the law.'

[p.29]: 'Lady Justice Hallet began her judgment in a case in the Court of Appeal with these words:
'This is yet another sad example of what can happen when young people roam the streets of our cities vulnerable through drink and/or drugs. A 16 year old girl came to London to celebrate the New Year. She got drunk, she become separated from her friends and she ended up with strangers. She had sex with one of them. [She said she did not consent.] The defendant is accused of being that person. He is now in the charge of a jury on a single count of raping her, contrary to Section 1(1) of the Sexual Offences Act 2003.'
The defendant was convicted.

[p.50]: 'Rape is often discussed within a framework of broader questions about relations between men and women, responsibility and blame. Who is to blame when someone is raped is a key question, with a range of opinions on a spectrum from 'obviously the rapist is to blame' to 'often women are to blame because they flaunt themselves, or take risks, or drink too much.' In between will be those who think women are sometimes to blame if they get into bed withsomeone who subsequently rapes them.'

[p.50]: 'A number of polls, conducted by various bodies, give a flavour of the range of views and the balance of public opinion. They tend to show that the majority of people have a view of who is to blame for rape that is in line with the definition of rape found in the law, and this is good news. However, the polls also show us that a substantial minority hold women partially responsible for the crime.'

[p.51 BOX 5]:
  • 26-29 per cent (male and female) feel that a woman is at least partially responsible for her own rape if she had been drunk or was behaving in a flirtacious manner (2005).
  • 39 per cent of 18-24-year-olds think a person should accept responsibilty for being raped if they go back to the assailants house for a drink (2010). 
    • 64 per cent of people feel that a person should take resonsibility for being raped if they drink to excess/blackout (2010)

    • 66 per cent feel that a person should take responsibility if they get into bed with that person (Opinion Matters 2010).
    • 73 per cent of people feel that a person should take responsibility for being raped if they perform another sexual act on that person.

    [p.39]: 'The Sexual Offences Act 2003' constituted a radical overhaul of the law, based on a modern set of attitudes about equality in sexual relationships. Much still remains to be done to present that thinking to the public.'

    [p.39]: False Allegations

    [p.39]: 'The law also deals with those who make false allegations. Making a false allegation of a crime is unlawful; it is perverting the course of justice. False allegations are often raised in discussions about rape and strong views are held. Some suggest that false allegations are particularly common when rape is the issue. The image of the rejected woman seeking revenge by making a false accusation is to be found far back in history and literature.'

    [p.13]: 'It was suggested to us that women often make false allegations of rape. Beliefs that many allegations are false are said to affect the way rape complaints are dealt with by the police, prosecutors and juries.'

    [p.39]: 'Certainly, cases of women being convicted of trying to pervert the course of justice by alleging rape are well reported in the media.'

    [p.40 BOX 3]: Prison 'inevitable' for false rape claims (30 October 2009). The Court of Appeal said that false allegations damage conviction rates of genuine rapes and are 'terrifying' for innocent victims. The judges spoke out as they dismissed an appeal by a former nurse who was jailed for two years after falsely accusing a man she met online. Mr Justice Henriques read out the words of the Lord Chief Justice, Lord Judge, made in a previous ruling relating to a false rape claim. Lord Judge, pointing out that such an allegation involved more than the individual victim. He said: 
    "Every false allegation of rape increases the plight of those women who have been victims of this dreadful crime. It makes the offense harder to prove and, rightly concerned to avoid the conviction of an innocent man, a jury may find itself unable to be sufficiently sure to return a guilty verdict."
    He said it was an offence which not only causes great problems for the victim, but also damages the administration of justice in general in 'this extremely sensitive area.'

    [p.40]: 'How common are false allegations? It is not possible to establish an exact figure and the research that is available gives a wide range of suggested percentages. Some research suggests that a figure of eight to ten per cent of reported rapes could well be false reports.'

    [p.41]: 'Wether there are more false allegations of rape than other offences is not known. But we do know that the effect on those who are falsely accused can be severe. The public holds very strong views about sex offenders. Those who have been under suspicion, maybe for months, perhaps remanded in custody awaiting trial, are likely to suffer considerably from the allegation having been made. Even when they have been cleared and the allegation has been established as false, they may still face suspicion from those they know.'

    [p.41]: 'The question of false allegations comes up time and time again in any meeting or discussion about rape, with some arguing that the number is large and others insisting that the prevalence is grossly exaggerated. Faster progress could be made in improving the treatment of rape complainants if more solid evidence was in the public domain.'

    [p.41]: 'In view of the controversy surrounding false allegations, the strong feelings the subject arouses and the part the controversy plays in the response to rape complainants, we recommend that the Ministry of Justice commissions and publishes an independant research report to study the frequency of false allegations of rape compared with other offences, and the nature of such allegations.'

    [p.41]: Linked to the matter of false allegations is the question often raised of allowing defendants in rape cases to retain their anonymity unless they are convicted, a proposal supported by the Home Affairs Select Committe in 2003. The current law protects complainants by granting them anonymity throughtout the legal process. Their names cannot be published from the time of the allegation for the rest of their lives. It is often argued that this anonymity should be extended to defendants unless and untill they are convicted. It was put to us by some we talked to that even when defendants are acquitted, 'If you throw mud it sticks.' A legal practitioner told us, 'It would be a serious advance if we did provide anonymity for both parties.' It was argued that the newspapers give a great deal of coverage of the opening of a trial with full details of the defendant, but by the time the trial ends, if the defendant is acquitted it has ceased to be newsworthy and the acquittal is not reported. On the other hand it is suggested that the acquittal gives 'public vindication' and that should be sufficient, and defendants in other cases do not have anonymity.'

    [p.42:] 'We make no recommendation on anonymity for defendants but note that it is often raised and the concerns will undoubtedly continue. A full examination of the issues would be helpful to the debate.'

    [p.15]: Conflicting targets for the police and the CPS were blamed for bad performance. The police targets require the police to charge a certain number of suspects.'

    [p.87]: 'It was suggested to us by some that the CPS had become nervous about deciding not to take a rape case, and would prefer to take it and see it collapse for lack of evidence rather than turn it down. We heard that on occasion the CPS seems to prosecute rape cases where the evidence is so flawed that the prosecution is doomed from the outset.'

    [p.87]: 'It was put to us that the CPS is under great pressure from politicians and pressure groups'.

    [p.87]: 'We agree that the current performance measures applied to the police and the CPS are likely to result in unintended consquences.'

    [p.88]: 'We also heard some criticism of the CPS from judges. They felt cases are sometimes not properly prepared. It was suggested that the CPS lawyers are often not ready for what might be disclosed about the complainant and do not deal with it well when the defence lays out such material.'

    [p.88]: 'Concern was expressed by a range of people we met that evidence is disclosed and used by the defence in a trial, for example CCTV or mobile phone evidence, that contradicts what is in the complainants interview and the complainant is quite unprepared for this. The result can be that the complainant is discredited.'

    (The Stern Review - blog owners opinion.)

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