Mary Dejevsky: A feminist presumption of victimhood impairs justice

Ever-present is a 'feminist' view which leans towards always treating the woman as victim and always identifying the crime as rape

Friday 20 May 2011 00:00 BST

Rape is rape is rape – and a very serious crime. Let's get that over with. Most people also have a very clear idea of what constitutes rape – and if they don't, and they find themselves sitting on a jury in a rape trial, they will be put right pretty quickly by the judge and the prosecuting lawyers. The difficulty in recent years has been less and less judicial practice than the propagation of a hardcore feminist view intent on broadening the definition of rape and presuming guilt rather than innocence. The lines between rape, sexual assault and personal "mistakes" risk as a result becoming blurred.

Underlying the vilification of the Justice Secretary, Ken Clarke, is the assumption that anyone (any man, that is, mostly) who appears "unsound" on rape is at best a dinosaur or a duffer and, most likely, a misogynist. If, as in Clarke's case, that man is a Conservative and a government minister, his remarks are interpreted as confirming the worst. The Labour leader seized upon them, opportunistically, in order to play to a particular gallery.

This is fine in the general rough and tumble that is British politics. But all Clarke actually did was to make a modest factual error – not the most heinous offence in an extensive live radio interview – in suggesting that there were grades of rape. In practice, judges make distinctions about degrees of seriousness every day in their sentencing, while upholding the law that defines rape as rape. The two are not incompatible.

As crimes go, of course, rape is surrounded by a singular mystique. But mystique does not belong in a court of law. And the outcry, such as it was, about Clarke's words was itself based on a misconception about rape cases and British courts. Recent figures show that convictions in rape cases are now on a par with those for most other crimes – at just short of 60 per cent. Yet the old, old statistic – that only 6 per cent of reported rapes result in a conviction – is routinely wheeled out to "prove" that rape is different.

In her 2010 review of how rape complaints are treated, Baroness Stern described that figure as misleading and proposed that it should lose its official imprimatur – only to be rebutted by the then Solicitor General, Vera Baird, who said that it was useful as a spur to improve conviction rates. As the Stern review noted, however, not only are there no comparable figures for other crimes, but the high "attrition" rate between a report to the police and an actual trial can have many explanations, from the victim's withdrawal of the complaint, to the lack of a defendant, to the advice of Crown prosecutors that there is insufficient evidence for a rape charge.

There are certainly reasons for continued dissatisfaction with what happens between the first report and a trial. The treatment of rape victims at police stations is still patchy, although much has improved. There are still complaints that rape by an erstwhile partner or acquaintance is not regarded with the same seriousness as rape by a stranger – even though (or perhaps because) it is far more common. And a number of high-profile police investigations – into the London taxi rapist, who plied female passengers with champagne, and the south London rapist who attacked often elderly people at night – were fraught with inefficiency, errors and a reluctance to believe victims' accounts, even though much-vaunted "specialist" rape teams were deployed.

This might suggest that the police are not giving rape cases the priority they warrant, or that the specialist teams are not all they are cracked up to be. But it might equally reflect flaws across police operations generally, not just where the crime is rape. If conviction rates are to rise, preparations by the police and the Crown Prosecution Service need to be better – but this would apply across the board.

There was a time when low conviction rates for rape were blamed almost exclusively on judges, whose comments about the dress or behaviour of the victim routinely drew indignation from the woman and her advocates. More recently, drink has become an issue, with questions about the validity of consent. With judges now generally alerted to the need to show more sensitivity to victims, however, responsibility for the failure of rape cases now rests as much with the juries as the judges. Which says something, too, and something not insignificant.

What it says is that the mainstream, as represented by the 12 good men (and women) and true, remains to be convinced by the arguments of hardcore feminism: that every violation claimed by a victim can necessarily be defined as rape. "Date-rape" between people who know each other; the value of consent given – or withheld – by victims who are drunk or drugged; the charges on which Sweden is trying to secure the extradition of the WikiLeaks founder, Julian Assange, which relate to unprotected sex while the alleged victims were asleep: in all these circumstances, there is a "feminist" view, which leans always towards seeing the woman as victim and always identifying the crime as rape.

The same strand of feminism can be found in the high-profile campaigns that are waged against female trafficking and rape used as a weapon of war. Both are age-old phenomena that are paraded as newly horrific and reduced to a formula where the man is the stereotypical perpetrator and the woman the powerless victim. A year-old campaign claims "the cuts" in public spending discriminate unfairly against women, while ignoring the inconvenient fact that this is largely because they have been disproportionately favoured in spending programmes hitherto. How much do such campaigns really help women? How much do they simply perpetuate the image of victimhood?

The truth is usually more complicated than campaigns – which is why juries are crucial in rape cases. They bring non-expert, non-dogmatic common sense to a judgement that cannot have gradations. The accused is either a rapist or he is not – and the presumption is, as it should be, that the accused is not guilty unless so proven. Over the past 48 hours the jury of public opinion has sat in judgement on Ken Clarke, on the internet and on the airwaves. The argument has gone to and fro and hardcore feminism has had its say. Applying the same standard of common sense as it applies in rape cases, the jury has found him not guilty.

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