Stop calling it rape and we’ll convict more men

21 Mar

She was 17 and on holiday in Greece with family friends. Walking past the bars in the town’s main nightlife strip, she got chatting to a dishy bouncer called Stavros. Sneaking off down an alley, they snogged. The next night they arranged to meet after he’d finished work. Stavros rode up on his moped to the villa where she was staying and beeped twice. She climbed out of the window (her curfew was midnight, but she didn’t care) and whizzed off with him.
Fast forward to 3am. The scene is a deserted beach in the north of the island. Stavros wants sex. The girl realises she is miles from anywhere, alone and in a pickle. Shagging the bouncer is suddenly the last thing she fancies, but when she tries to say no he gets aggressive. She realises resistance is futile, she hasn’t actually got a choice and it’s going to happen whether she agrees or not. She decides her best option is to go through with it. The experience is not pleasant, but it’s over quickly and he drives her back home.
Is this a rape? Technically, it is: penetration took place without consent. Did she report it? No.
I was thinking about my friend’s plight — and how she has always insisted she did the right thing — when I read the results of a Mumsnet survey last week. It found that 10% of the 1,600 women who responded said they’d been raped, while 35% said they’d been sexually assaulted. Of course this is a self-reporting survey, so it is statistically skewed, but the British Crime Survey, which is a trusty source of data, finds that 20% of women have at some point in their lives been the subject of an actual or attempted sexual assault.

The Mumsnet survey touched a nerve: Twitter has been awash with women sharing their assault tales under the hashtags (the way that Twitter organises specific conversational threads) #webelieveyou and #Ididnotreport, while commentators of both sexes have been in full cry about the epidemic of rape in our society.

I believe strongly that much of the shame, confusion and fuss about rape levels and lack of convictions for rape are the fault of our outdated legal system. Germaine Greer, the feminist writer, has long argued that the offence of rape should be abolished and instead such attacks should be classified as assaults of a sexual nature of varying degrees of gravity. Under such a system it would be possible to distinguish legally between different kinds of assault — so mutilating assaults on a child would be judged differently from that on a grown woman, for instance. Or assaults by a stranger at knifepoint could be assessed differently from date rape incidents, marital rape, or consensual sex between an 18-year-old boy and a 13-year-old girl.

One of the reasons it is so hard to get convictions in rape cases is because the crime in this country is judged as second in severity only to murder. Rape is defined in law as penetration into the mouth, vagina or anus by a penis. Yet my friend isn’t the only woman who has decided that unwanted invasion by penis was preferable to being beaten up and abandoned on a deserted beach in the middle of the night. Often women give in to sex against their will rather than endure a violent attack because they know they are weaker and couldn’t fend the man off.

Many rape victims testify that the penetration wasn’t the worst part of the assault — they cite ejaculation onto the face or breasts as worse, or the words they were forced to say. But a woman’s perception of which bit of the assault is worse is not the point under the laws as they stand. The crime that is being punished is the ancient crime of violating a woman’s honour. As Greer puts it: “Historically, the crime of rape is not an offence against women but an offence committed against men by other men: the man who has control of a woman, historically her father, guardian or husband, has a case against the man who makes unauthorised use of her.”

When a rape suspect is prosecuted, the case is brought by the state against the perpetrator, with the woman as the main witness — which is why she is subjected to such a legal battering under cross-examination. This has far-reaching consequences.

In the Mumsnet survey, 53% of women said they hadn’t reported what had happened because of “shame” and “embarrassment”, while 29% of women had been so ashamed and mortified they hadn’t told anyone at all. I have lost count of how often I’ve heard — or read — in the past week that rape “is something no woman ever gets over”, that it is “entirely life-defining”, the “worst thing that can ever happen”.

To me that is the language of honour killings, of women as chattels, of Victorian views of “fallen women” lost to society because they had lost their virginity, or Taliban rhetoric about how once a woman is sexually violated she is damaged goods, with her honour and that of her family in tatters.

Well, hang on a second. This is the 21st century, not the 19th or the 12th. This is Britain, not the tribal badlands of Afghanistan or Kurdistan. Isn’t it time we thought more clearly about our rape law? It’s becoming increasingly obvious that it is useless in resolving the drunken fumbles of students, or dating couples. At the moment if an incident involves intercourse then rape has to be the charge.

The crucial part of a rape case often isn’t whether sex has taken place (usually easily proved or disproved by DNA) but whether or not the woman consented (usually just her word against his). With our outdated legal definition of rape, such high levels of proof are required that cases clog up the courts and victims face intimidating cross-examinations. A new system with gradations of sexual assault could speed up the process.

Talking to solicitors last week I was struck by how many of them said the police are under such pressure to convict more rapists that even if the evidence is weak, the case will go to trial. “Rape is becoming a bit like racist assault or domestic violence,” said one solicitor who has been conducting such cases for 30 years. “It gets special treatment because of targets and politics, even if the evidence isn’t up to it. I’m seeing rape cases go to trial now that haven’t a hope in hell of seeing a conviction.”

If rape were reclassed as assault and the stain of shame and dishonour were removed, you might find that far more women were willing to come forward and testify. Now there’s a thought.

This column first appeared in the Sunday Times – Read Eleanor’s Sunday Times column in full

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