Rape culture in government

[Content note: abuse of power, rape]

There was a debate in Parliament yesterday regarding undercover policing, raised by Caroline Lucas MP (Green, Brighton Pavilion).

One of the issues raised was the practice by police infiltrating a group suspected of criminal activity of forming sexual relationships with the members of that group (so far, the cases which have received publicity have all involved male police officers and female members of the group).

It is of course fairly likely that many of the people with whom the undercover officers formed sexual relationships would not have done so had they known that the other person was an undercover police officer. As Lucas states:

The eight women allege that the men’s actions constitute a breach of articles 3 and 8 of the European convention on human rights. Article 3 asserts that no one shall be subject to inhuman or degrading treatment, and article 8 grants respect for private and family life, including the right to form relationships without unjustified interference by the state. The women go on to allege that the actions amount to common law tortious acts of deceit, misfeasance in public office and assault.

It's not at all clear to me from a reading of the precedent and legislation whether people in a similar situation could also allege rape, as has been suggested (and rightly, because morally it is). It hinges on what "capacity to consent" means in the legislation, and the positive precedents generally have elements which are clearer than in this sort of case¹.

In that context, the government's answer is disturbing.

Nick Herbert MP (Conservative, Arundel and South Downs), the relevant Minister, replies - regarding the legality of this under RIPA, an issue which remains untested by the courts and on which a number of conflicting public statements have been made by the police:

What matters is that there is a general structure and system of proper oversight and control, rather than specific directions on behaviour that may or may not be permitted. Moreover, to ban such actions would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them. Specifically forbidding the action would put the issue in the public domain and such groups would know that it could be tested.

So it's okay for an undercover police officer to commit actions morally (and possibly legally) constituting rape, if to do otherwise would put their cover at risk, according to the government.

Herbert doesn't explicitly state it one way or the other, but presumably given some of the other cases that Lucas raised, he also considers it legitimate for an undercover police officer to plant a live incendiary device in a public area, if to refuse would put their cover at risk (a blanket ban on committing life-threatening acts of terrorism would obviously make it too easy for terrorist groups to out undercover officers, right?).

Footnote

¹ Generally one of:

1. The offender viewed the act as sexual but convinced their victim(s) that it wasn't (e.g. fake medical examinations)
2. The offender had used some sort of threats or pressure
3. The offender was pretending to be an entirely different person (as opposed to presenting a different identity of the same person). The distinction between the two is not trivial, given how many people have extremely legitimate reasons to have multiple identities for different contexts.

One of the things that makes me angry about this sort of case is that I can't think of a way to word legislation such that (under rape culture: the existing legislation would be more than adequate if we weren't) this would be illegal, but legitimate omissions about one's past or other identities would not be, especially in the context of a government (and much of the populace) which believes that people can legitimately only have one identity.

Loitering within tent

[trigger warning: state violence]

Why aren't the people in charge simply ignoring the Occupy movement? It's not obvious to me.

Petitions, protests, marches, letter-writing campaigns, voting - all can be and are largely ignored by elected politicians. A representative who is already sympathetic to their cause can use these things to be more forceful in Parliament. With consistent effort of this sort over many years, then the number of sympathetic representatives in Parliament can be grown and public opinion can be altered - but this is an extremely slow process and as, for instance, the blatant racism or heterosexism shown by some MPs today demonstrates, can be ignored at will by an unsympathetic representative.

The "ultimate sanction" of making them lose elections is only a statistical deterrent. A party may occasionally lose power temporarily - though that was going to happen anyway - but individual representatives in safe seats (and there are equivalents in almost all electoral systems) can stay in office as long as they want.

So, given that, what is it about Occupy that stops it being ignored. Look at it entirely from an abstract point of view - ignore the aims, just look at the methods.

• A protest march will, if it's large enough, block off multiple streets in a major city for several hours. Normal day-to-day life is disrupted over a large area. Then, everything returns to normal, and it gets pushed back in to the pile of previous marches.
• Occupy take an area of public space, put some tents up, and stay there. The vast majority of the city continues as normal - indeed, from a distance, it's not obviously there - and even nearby it's generally relatively straightforward to walk around them. Generally, far fewer people are participating at any one time, in any particular Occupy location, than would appear at any medium-sized protest march in the same city.

The only thing that makes it more "disruptive" than a protest march is the permanence in a public space. But alone, that's not particularly disruptive¹. They may be a reminder of something governments and the powerful don't like to be reminded of - but they should be an easily avoidable and ignorable reminder. The late Brian Haw camped outside Parliament for years without changing policy, and only really made the news on the (many) occasions where they tried to have him removed.

Likewise, while the Occupy movements are - to a greater or lesser extent - trying to develop alternatives to the established order, that they're doing so in a square in the rain, instead of on an internet forum or on a commune somewhere out of the way, shouldn't be particularly threatening. It's not as if people merely walking by are going to pick up the interesting details of that, as opposed to a few messages and slogans on signs.

It seems fairly obvious to me that if the governments and powerful had completely ignored Occupy Wall Street, giving non-committal platitudes about the right to protest and "they can stay if they want[, I don't care]" if anyone asked, then it would not have reached the numbers it has - across North America and Europe - and not have received anything like as much press coverage.

Occupy LSX has pretty much only been in the news since it started over disputes as to whether they should be "allowed" to stay there or forcibly removed. The reasons they're actually there are getting very little press coverage. If they'd been passively allowed to continue without interference, then they'd still be there, of course - but no-one who didn't physically go past them would have noticed.

Similarly, the recent attacks on Occupy Oakland - and now New York and Seattle, at least - and the slightly less aggressive ongoing policing and "health and safety" disruptions of the sites - may have deterred some people from attending ... but they've also kept the protests in the news, encouraged the protestors, often grown their numbers overall, and made them think that their strategy is working.

Gandhi's "First they ignore you, then they laugh at you, then they fight you, then you win" statement has been repeated to the point of cliché about Occupy - but while their eventual victory (and what that might mean, anyway) is still nowhere near inevitable, they're larger in number and angrier as a result of governments and the powerful not being content to remain at the "ignore" stage.

So why try to repress them so much? It can't be the ideas alone. There's nothing new in their ideas (and that is not a criticism!) - and there's nothing new about a significant angry minority holding those ideas. The economic collapse has made more people receptive to those ideas, and the Occupy camps mean that (a few) more people hear about those ideas.

It also can't be about permission to hold those ideas and express them publicly. The only part unique to Occupy is "in a square" or "in a tent". Again, if ignored, they wouldn't be powerful there.

It can't be personal inconvenience or conscience. If the powerful had those, then plenty of other forms of protest would either be more rapidly effective, or more heavily restricted, or both.

It can't be about "health and safety" or other such concerns. The only health and safety potentially being affected is generally that of the people inside the Occupy camps - which they obviously don't care about. Yes, the protests may after legal argument be found to be breaking some technicality of the law. But probably most protest marches could after the fact be found to have done the same. It's largely irrelevant to whether they can be ignored, and it's more focus on enforcing every single law at once than ever gets applied anywhere else. Enforcing laws - and making up new laws to enforce - is a means, but it can't be the end in itself.

It shouldn't be about personal fear - hundreds of thousands of people in a square like Tahrir Square can be threatening to a government: that's enough people that if they did turn out to be armed revolutionaries they could do some serious damage to the government even if the police and army stayed loyal - and a sign of enough popular support that a dictator can't rely enough on their loyalty. So Egypt's government fell.

But a few hundred people? Maybe a few thousand at the biggest? That's not dangerous. They're not even particularly close to government buildings, or the offices of the truly powerful. Even if they were all armed to the teeth if they tried anything violent they would go down very quickly in the "fatally failed revolutionaries" list. And clearly if they were armed and shooting, the loyalty of the police and army is nowhere near weak enough yet in North America or Europe to end up defecting: the recent police assaults on Occupy should show they don't have a problem there.

So - there seems to be nothing to lose by simply ignoring Occupy like they ignore every other protest and fringe movement. And much more to lose by attacking them through the courts and through violence, thereby increasing anger and public sympathy. So why pick that strategy?

I really don't get it. What do the rich and powerful know that I don't that makes Occupy so specifically threatening to them that they're willing to take such disproportionate and panicked action to try - counter-productively - to stop them? What am I missing here?

Footnotes

¹ If the public space is "across a major motorway" or "in the middle of Oxford Street" or "right where you wanted to build a block of flats" or "in front of the gates of a military base", then it's definitely very disruptive. But that's not what Occupy is doing.

A tale of two anti-rape posters.

[trigger warning]

On the bus this morning I saw a poster I'd not seen before - I think it's a new one - from the local police forces. It was an anti-rape poster, and unlike this recently spotted poster from South Wales Police, it was actually a fairly good one.

I cannot find a picture of it anywhere online, and I wasn't able to take one myself, so I'll try to describe it from memory. (If anyone has a picture of this poster, please let me know!)

• Right quarter of the poster: image, grey scale, of the casually-dressed upper legs and body of a light-skinned man, holding the bars of a cell with both hands.
• Most of the rest of the poster is text, which I'm not going to get word-for-word - but in paraphrase. Top line: "don't commit rape or this could happen to you". Then, below that, three examples of things which are rape.
• First example: "If she's too drunk to say 'yes', she's too drunk to say 'no'"
• Second example: "If she's under 16, even if she consents, it's illegal and you could be arrested."
• Third example: "No matter how many times she's said 'yes' before, she can still say 'no'. Rape of your wife or partner is still rape."
• Finally, the phone number for the local police forces, and their logos.

I'm sure experts in the field could suggest areas for improvement, but compared with the usual standard for these posters, I was actually pleased to see it. It keeps its focus on the perpetrators, making very clear that their self-justifications for their actions will not be accepted - while at the same time also giving the same message to the enablers who help perpetuate these myths, and the victims who might end up being told them so much they come to believe them.

It also reminded me, because of its contrast to the South Wales poster, that I had a letter to write - so here it is. I thought about sending it directly to the government departments, but my MP - unsurprisingly - tends to get more useful replies than I do.

Dear [MP],

I was today pleased to see an anti-rape poster, produced by the local police force, that focuses strongly on the perpetrators and sets out examples of situations where they do not have consent despite their beliefs. This reminded me of the large continuing regional variation in the success of the criminal justice system in this area, as revealed most recently by the BBC through Freedom of Information requests at http://www.bbc.co.uk/news/special/uk/11/acpo_rape_stats/xls/rapestatistics.xls

As Baroness Stern found in her report on rape prosecutions, the existing guidance is followed extremely inconsistently. If every police force had the report to charge rate of Durham (60.8%), and if every CPS region had the ability to avoid dropping cases before trial that Dorset has (only 5.4% dropped), and if every CPS region had the success in securing convictions at trial of regions such as Warwickshire (87.0%), then half of all reported rapes would result in a conviction for the rapist (either of rape or a lesser offence)

This rate is potentially achievable without any new policies or procedures - simply by following existing best practice. Furthermore, the rapidity with which some police forces and CPS regions have achieved improvements in detection and conviction rates recently suggests that - with enough political will - this conviction rate could be achieved within a decade at most.

Would you be able to contact the relevant Ministers at the Home Office and Justice to ask them:

1. if they will set as a national target that by 2020 the police and CPS will secure convictions in at least 50% of all reported serious sexual offence cases?
2. what steps they are taking to ensure that best practice is replicated quickly across all police forces and CPS regions?
3. what additional steps will they take in future to ensure that the situation improves?

Thank you

Yours sincerely

[me]

Feel free to adapt this letter to your own MP, of course.

Eviction of people loosely connected to a riot.

Here's the consultation on eviction of social tenants. Question 1 is perhaps the most important question, which would allow social landlords to evict tenants where they - or a member of their household - was convicted of certain violent crimes anywhere in the UK. Got to keep the tabloids happy.

Wandsworth and Southwark councils are trying to get ahead of the consultation, and are just doing it anyway. An actual law explicitly allowing it would mean that the only practical challenge might be to the European courts - well beyond the financial and legal means of most social tenants.

Here's what they're proposing.

We are therefore proposing to include additional provisions in Ground 2 of Schedule 2 to the Housing Act 1985 and Ground 14 of Schedule 2 to the Housing Act 1988 so that the court may grant possession where a tenant or member of their household has been convicted of violence against property (including criminal damage and offences such as arson), violence against persons at a scene of violent disorder or theft linked to violent disorder. There would in these circumstances be no requirement that the offence had been committed within the locality of the dwelling house, subject to it being committed in the United Kingdom.

Note that violence against persons must be connected to "a scene of violent disorder", but violence against property need not. Well, property is more important than people to the government. We knew that.

So, here's my response to that suggestion.

Question 1: No. The current grounds for possession should not be extended in this way. Where a tenant has been convicted of a serious crime, there already exists legal mechanisms for them to be fined, imprisoned, or given a community sentence - whatever the court believes appropriate in this particular case.

A major problem with eviction as proposed is that it makes all members of the household responsible for the behaviour of all other members of the household. Where the eviction applies to long-standing anti-social or criminal behaviour committed in the immediate locality of the housing, then requiring this mutual responsibility may be justifiable in some cases - other members of the household may have been aware of the anti-social or criminal activity for some time, and been able to discourage or prevent it. However, a de facto requirement for all members of a household to keep a sufficiently close watch on each other so that they cannot possibly commit criminal offences elsewhere is not justifiable.

Forcing someone to lose their tenancy in response to criminal behaviour committed by a fellow tenant completely unrelated to the housing or their own actions seems completely unjust, and would seem to open the landlord to challenges on human rights grounds.

Furthermore, it brings about perverse incentives. Other members of the household who might ordinarily testify against a person accused of criminal offences would in this situation know that doing so could result in them losing their own tenancies! The temptation to help the accused construct an alibi would be very great.

A third problem is that the original power, by applying to criminal or anti-social behaviour in the vicinity of the housing, has an important use in protecting others living in the same housing from this behaviour - though, as paragraph 1.5 of the consultation document points out, it may sometimes only move rather than solve problems.

Where applied to crimes committed a long distance from the housing, this use vanishes. The crime is not connected to the housing, so removing the tenants from the housing cannot affect the crimes. The convicted tenants have to live somewhere, so removing them from their present housing will make little difference.

Imprisonment is already available as an option to the courts where someone needs to be removed from general society to prevent crime, and this is both more appropriate and avoids punishing people who did not commit the crime.

If you have time, please read the consultation document and send in your own response. I know I haven't covered everything that's wrong with the proposals in mine. With the riots falling away into the distance - and the underlying causes ignored to produce more later - the need to do this to appease the reactionary press might be avoided.

Regional variation in rape prosecutions.

[trigger warning]

The BBC has collated statistics from all English and Welsh police forces to compile data on rape investigations. A spreadsheet (Excel) with the full data is available.

In summary - and much more details below: there is massive variation between police regions in how well rape cases are handled, but if every force followed current "best practice", then over 40% of reported rapes could result in the rapist being convicted.

The BBC's angle in the reporting is in the massive variance in "no crime" classification of reports. This is an update of very similar research they did, which I wrote about briefly two years ago.

As in the BBC's previous study, and as in earlier similar studies carried out by the Fawcett Society, the main finding is of massive variation from region to region.

Reporting rates by region do not vary significantly - though there is a little variation between Cheshire (0.17 per 1,000 population) and London (0.43 per 1,000 population).

On marking reports as "no crime", the rate varies between 2.4% in Gloucestershire and 30.0% in Kent. A small number of "no crimes" is expected - Kelly, Lovett and Regan's 2005 study gives several good reasons (other than the stereotypical "false accusation") why this might occur. However, it's clear from the discrepancies that a lot of police forces are heavily overusing this method of closing a case.

The "sanction detection" rate also shows significant variation between regions. This is the rate at which reported cases result in either a charge against a suspect, or the police formally cautioning a suspect. (The latter is relatively unusual in rape cases, though still uncomfortably common).

In Lincolnshire and Bedfordshire, only 11.1% and 11.8% of cases include a "sanction detection". In Durham, the figure is 60.8%, and in South Wales, 49.8%. Again, there's clearly a major difference in procedures.

Once the case has moved to the CPS for prosecution, there are again regional variations. Ignoring Lincolnshire as an outlier, as the police are clearly only passing the most obvious of cases to the CPS there, Nottinghamshire CPS drop 36.3% of cases before court. Dorset CPS only drop 5.4%.

Then, in court, the conviction rates again vary - Surrey, Dyfed-Powys, and Hampshire have conviction rates in court less than 60%. (Dyfed-Powys occasionally get confused and prosecute the victim instead). Meanwhile Warwickshire, Devon and Cornwall, and Leicestershire are able to secure a conviction in around 85% of court cases (not always for rape, though - sometimes for lesser offences).

Multiplying the various attrition rates together isn't completely valid (the figures for prosecutions are not for the same cases as the sanction detections) but gives a rough indication of the combined effectiveness of the local police and CPS, without having to do the massive longitudinal studies that Kelly, Lovett and Regan did, where there is almost a five-fold difference between the most and least effective forces. (Since this is only a rough estimate, I won't name the 'best' and 'worst' regions)

Baroness Stern's report on rape prosecutions strongly noted that investigation and prosecution would be considerably more effective if everyone just followed the guidelines that had already been written.

Cross-tabulating the various figures against each other suggests that - with the exception of a few outliers such as Nottinghamshire - the effectiveness of the CPS in prosecuting cases doesn't depend much (or even at all) on what proportion of cases the police pass to them. In other words it is generally not the case that the police referring more cases to the CPS will just lead to the CPS either dropping those cases or being unable to secure a conviction.

We can therefore also look at a theoretical "best" region, which improves its "sanction detection" and "conviction" rates to the best found in real regions, by application of best practice.

The result of this is not particularly surprising, perhaps. The theoretical "best" region - merely on current best practice in policing, investigations, prosecutions, and court cases - would be able to secure convictions, if not for rape then at least for some sexual offence¹, in around 40% of all reported cases.

Furthermore, best practice is continuing to improve - that "theoretical" figure is itself noticeably increased from even two years ago.

It wouldn't be impossible - police forces have made significant improvements in only a few years before - for that 40% figure to be achieved by the end of this decade. If that doesn't happen, it will be solely because it wasn't considered a high priority.

I'll be writing to the Ministry of Justice (responsible for the CPS) and the Home Office (responsible for the police) soon to ask what plans they have to ensure that under-performing police forces are rapidly brought up to the level of the best.

Footnote

¹ In practice, around half will be for lesser offences.

Allowing religion as an excuse for discrimination: consultation response

Spark in Darkness highlights an Equality and Human Rights Commission consulation (Word document) on its intervention in a number of religious discrimination cases.

As pointed out by Sparky, the consultation wording is pretty bad, and seriously downplays the discriminatory nature of the inactions that two of the plaintiffs were rightly barred from. The consultation also makes it quite difficult to find the details of the cases - they give you a link about six steps out in the convoluted court website, and then approximately describe the first two steps needed to find them (one of which no longer works as described). As linked below, there are perfectly good¹ direct links to the case descriptions!

The cases in question are:

• The two cases Eweida and Chaplin, in which the plaintiffs were forbidden from wearing particular visible Christian symbols as part of their work uniform.
• The two cases Ladele and McFarlane, in which the plaintiffs hold that requiring them to carry out all aspects of their jobs with all clients was discriminatory, since heterosexist discrimination is part of their religion.

In all four cases, the UK courts have decided that the plaintiffs were not subject to unfair discrimination.

Currently the EHRC's position is that the UK courts were wrong in the first two cases, and correct in the last two. They also ask if a concept of "reasonable accommodation" should be applied to religious discrimination.

It is crucial, of course - to prevent religious exemptions and "conscience clauses" from making equality laws useless - that the European courts uphold the decisions against Ladele and McFarlane. It's also therefore important that the EHRC does not ask those courts to rule in favour of Ladele and McFarlane. Please send a response to their consultation if you have time (contact details on the final page of the consultation document, deadline 5 September.

Here's my response:

Regarding your consultation on intervention in four religious discrimination cases before the European courts:

Response to question 1:

In the case of Eweida, I believe that the courts probably made the correct decision based on current law, given that "In the interim, British Airways had offered to move the applicant without loss of pay to work involving no public contact, but the applicant had chosen to reject this offer and instead to stay away from work and claim her pay as compensation.".

Whether or not this decision was correct would depend in my view on whether the alternative work offered was at a similar standard - not just in pay but in working conditions, opportunities for promotion and skills development, fit with the plaintiff's skillset, and so on - to the original work. If it was - and the UK courts appear to have found that it was - I can see no reason for BA to make payments based on the plaintiff not taking up this offer.

In the case of Chaplin, I believe that the court's response was also correct. The hospital's uniform policy was designed to minimise risk of infection and preserve health, and so requiring employees to follow it should be considered a legitimate restriction "necessary in a democratic society in the interests of public safety, [and] the protection of [...] health".

Response to question 2:

In both of these cases I believe that the domestic courts made the correct decision. Both plaintiffs were required to carry out particular tasks as part of their jobs, without discrimination based on the sexuality of their clients. This is not a case where the religious discrimination claimed is largely unrelated to the performance of their jobs, but one where their religion is definitionally incompatible in their view with the duties of their job. In this case, there should be no responsibility upon the employer to vary the duties, especially where such variance would require discrimination against other protected groups. Protection against religious discrimination should not extend to being able to pick and choose which aspects of ones job should be carried out.

Response to question 3:

A "reasonable accommodation" test for religious discrimination would seem - on the basis of the four cases presented - to be superfluous with current law.

In Eweida, the employer attempted to make reasonable accommodations - firstly by offering a job in which the contested restriction would not apply, and secondly by amending the contested restriction. This was found under current law to be sufficient, and so an explicit "reasonable accommodations" law would have been unlikely to make a difference to the outcome.

In Chaplin, Ladele, and McFarlane, the cases fall outside the scope of "reasonable accommodation". The actions requested by the plaintiffs were incompatible with the duties of the job, and so no "reasonable accommodation" could have been made. Furthermore, in the cases of Ladele and McFarlane, no accommodation of the plaintiff's stance could have been provided without harming the employers' provision of service towards LGB people. Again, a "reasonable accommodations" law would have been unlikely to have made a difference. (Had, in Chaplin, a way of displaying the crucifix been available that was compatible with infection control and health and safety requirements, it seems unlikely that neither the employee nor the employer would not have suggested this at some point in the dispute)

The "reasonable adjustments" part of disability law is in my view to reflect that the infrastructure of society is generally set up by default in a way that is not accessible to people with disabilities, and so it may not be possible - especially for a small business or organisation with a very limited budget - to provide a fully accessible environment. There is therefore only a requirement to do what is financially and physically possible unilaterally, rather than requiring a multilateral rebuild of social and physical infrastructure to truly eliminate environmental disability discrimination.

There is not an analogous situation with religion - no buildings need be completely rebuilt, no tools need to be completely redesigned, and so on - and therefore the concept of "reasonable adjustments" seems unnecessary.

Footnote

¹ Well, in so far as the court website itself isn't particularly accessible or user-friendly.

Inconsistencies in attitudes to the legal system

[trigger warning]

Okay, so we have a group of crimes where:

• There are very harsh sentences for those convicted, with even the least serious offences in this group likely to give several weeks if not months in jail.
• Bail is generally refused for those charged, so there's a good chance of being in jail on remand for months while a full trial is scheduled, even if completely innocent.
• The police may batter down your door at 5 in the morning to arrest you if suspected, and then hold you for days.
• There can be serious damage to one's reputation within the local community for those suspected and especially convicted of these crimes, and the police and media widely report (more widely than usual) on convictions to ensure this.
• Those accused are mostly male.
• The government, police, companies, charities and media are encouraging anonymous reports of these offences to try to ensure as many offenders as possible are caught.
• The courts have been condemned by many observers and legal experts for attempting to rush the legal process at the expense of justice.

On the whole, in fact, it's quite clearly about vengeance and being seen to be doing something, rather than justice, rehabilitation, and repairing the damage caused to society by these crimes.

One would have naively thought that the usual suspects would have been very vocal about the need to guard against the possibility of malicious accusations, and to give defendants in these cases anonymity to protect their reputations, but I haven't - including doing some searches specifically to look for them - found a single one.

Actually, I'd have been surprised if I had - but it just goes to show how little "reputation", "fairness" or "justice" are actually concerns of theirs.

Riots and responsibility

[Trigger warning: violence, also applies to most of the links]

So, riots. Some other reading on the subject first:

• Hangbitching: Peckham Monday
• Camila Batmanghelidjh at the Independent: Caring costs – but so do riots
• Melissa McEwan at Shakesville: On UK Riots Part 1 and Part 2
• Andy's Miscellany: Thoughts on riots
• Left Outside: Even Rioters with Blackberrys can be Poor
• Kevin Sampson at the Guardian: Liverpool riots: I remember the buzz of mob mayhem from 1981

And for some idea of the general public response:

• This rapidly-growing petition to remove all benefits from rioters (presumably after they've been released from jail) is by far the most signed petition on the government's new petitions site.
• YouGov polling reports significant majorities in favour of major escalations of force against the riots, and 33% in favour of the use of live ammunition.

My own thoughts...

There are two things that the government needs to do. Immediately, it needs to restore an approximation of order to the affected cities. The people involved in the riots do need to be arrested and tried if possible. The government are taking this - after a shaky start - pretty seriously¹, with a large police presence in city centres at night, and rapid work to arrest the rioters during the day. The rioting isn't going to be completely over for a while - but provided nothing escalates it (see footnote¹ again) then normality should return fairly soon.

As soon as that is done, however, the government needs to do a much more important task - stop this happening again.

Riots could in theory break out at any time. There are nowhere near enough police across the country to stop this. If thousands of people decide at the same time that they want to make a point through violence, it's really difficult for the police to stop this happening.

Generally, they don't, however. Most of the time, people feel they have better choices available to them, or don't co-ordinate their attempts to riot.

The police can maintain a strong presence enough to stop these riots. They cannot maintain that presence indefinitely - already officers have been on duty for much longer than they should have been. Eventually they will need to stand down - and then, if nothing has changed, it will only be one more spark needed for more riots to start.

Unfortunately, the government seems to be determined not to change anything.

Its all too clear that we have a big problem with gangs in our country. For too long there has been a lack of focus and a complete lack of respect shown by these groups of thugs.

I am clear that they are in no way representative of the vast majority of young people in our country who despise them frankly as much as the rest of us do. But there are pockets of our society that are not just broken, but frankly sick.

When we see children as young as 12 and 13 looting and laughing, when we see the disgusting sight of an injured young man with people pretending to help him while they are robbing him, it is clear there are things that are badly wrong in our society.

For me the root cause of this mindless selfishness is the same thing I have spoken about for years: it is a complete lack of responsibility in parts of our society.

People allowed to feel that the world owes them something, that their rights outweigh their responsibilities and that their actions do not have consequences. Well they do have consequences.

We need to have a clearer code of values and standards that we expect people to live by and stronger penalties if they cross the line. Restoring a stronger sense of responsibility across our society in every town in every street in ever estate is something I am determined to do.

That's David Cameron PM (Conservative) there. But with all that talk about how people should "take responsibility", it could easily have been his Opposition counterpart, Ed Miliband MP (Labour). As the Guardian reports:

He said: "Then we have got to look into the causes, why people are going around doing this. And I think there are a complex number of causes."

He said he thought it was "partly about parental responsibility, partly about gangs and some of that culture".

Pretty similar thoughts from both. In summary, the causes of the riots are that "the rioters are scum, and their parents are scum, and their culture is scum, and we should punish the lot of them".

And with that level of shallow political analysis and responsibility-dodging from our political leadership, there are always going to be people who feel that society is giving them nothing.

Today's rioters can be dealt with. Arrested. Tried. Imprisoned. Tomorrow's rioters are still going to grow up in the same hopeless situations, being blamed by the politicians for being in those situations. And in a few years we'll arrest them too, because that's far easier than trying to figure out what the real underlying problems are and then fixing them. Far easier than treating people as actual people and listening to them and taking them seriously before they get so desperate they take to the streets to loot and destroy because that's all that's left. But no. They're scum, their families are scum, and they deserve what they get. Political consensus acheived, Parliament adjourned.

I think tomorrow's Parliamentary debate will be very reluctant to look "soft on crime" and consider why these riots might be happening. Why decades of social deprivation and institutional racism and cuts to what few bits of social safety net there were might be giving people nothing left to lose by rioting. I hope I'm wrong about that, but if I am it'll have to come from the backbenches.

Footnote

¹ Populist but dangerous and largely useless measures such as water cannon and plastic bullets aside, that is. Because they worked so well in Northern Ireland.

Assange's extradition, and what English law actually says about rape

[trigger warning]

So, Assange's appeal against his extradition started today. As with last time, his lawyers are going for a "it wasn't illegal"/"it's only illegal in Sweden because they're weird" approach.

These are expensive lawyers... have they actually read English sexual offences laws?

The Guardian's coverage of the case contains a few very odd statements from the lawyers.

11.27am: In one case Assange is accused of having sex with a woman without a condom – but Emmerson [Assange's lawyer] says deceiving someone on this issue is not illegal under English law.

Yes, it is. Quite seriously illegal. Section 76 of the English¹ Sexual Offences Act 2003 states that it is to be "conclusively presumed" that the "complainant did not consent" if:

(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

A "conclusive presumption" is really strong - it basically says that the condition by definition implies the outcome. So if deception were proved in an English court, it would mean that "but she consented" was legally virtually impossible as a defence.

Slightly later:

11.35am: The so-called "minor rape" allegation – when Assange was alleged to have had sex with one of the alleged victims, known as SW, when she was asleep or half asleep – was an "entirely consensual sexual encounter", Emmerson says.

Again, not under English law. Section 75 of the Act states that there is an "evidential presumption" about a lack of consent if:

(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;

and the defendant was aware of this.

An "evidential presumption" isn't as strong as the section 76 "conclusive presumption", but it's still fairly strong - it says that it will be assumed that there was no consent unless evidence can be provided to suggest that there specifically was - a "defence must prove you didn't" rather than the default "prosecution must prove you did" question.

The 11.35 quote also doesn't fit well with some of the other things Emmerson says - for instance

10.50am: The Assange team is promising not to attack his accusers and not to doubt their discomfort about his sexual conduct.

So... it was "entirely consensual sexual conduct" that was "[felt to be] disrespectful, discourteous, disturbing or even pushing at the boundaries of what [the victims] felt comfortable with." (Liss has more on this at Shakesville)

Or later on

12.22pm [...] this is not intended to challenge "the genuineness of their feelings of regret about having had consensual sex with Mr Assange or trivialise their experiences". [...]

[...] But the sexual activities that occurred had taken place with consent, he argued, and, unlike in Sweden, could not be criminalised in the English jurisdiction. [...]

Except that they're saying it wasn't consensual, or there wouldn't be a case to answer here.

And the judge in the original extradition hearing ruled - quite correctly - that under English law the accusations amounted to 3 accusations of rape and 1 of sexual assault.

A brief comparison of Swedish and English sexual offences laws

• English law defines a broader range of assaults as rape. The Swedes are trying to extradite Assange on 1 count of rape and 3 of "sexual molestation". In English law, 3 would be rape, and only one the lesser offence of sexual assault.
• English law also defines, though this is not relevant directly to this case, several types of assaults as "sexual assault" that are not criminalised at all under Swedish law, as far as I can tell.
• English law has far stronger penalties for rape. The average custodial sentence on conviction is 8 years - the maximum a life sentence. The maximum sentence that Assange could serve in Sweden if convicted is only 4 years.
• English law has explicit definitions of consent to say that someone who is asleep did not consent, and someone who was deceived as to the nature of sexual activity did not consent - strong enough that the question of consent should not need to be proved in court if there is no argument about the circumstances. Swedish law, as far as I can tell, does not.

But it's the Swedes who apparently have this ridiculously tough law that criminalises normal sexual behaviour. The fact that English law is in fact tougher - and rightly so - in just about every area doesn't stop people believing this - or Assange's lawyer claiming it in court:

11.31am Emmerson argued that Assange was a victim of a "philosophical and judicial mismatch" between English and Swedish law over what constituted sex crimes.

Such mismatch as there is actually works in his client's favour, at the moment, since the extradition would move him to a jurisdiction with less strict laws and less strong punishments.

Footnote

¹ Wales uses the same Sexual Offences Act. The laws in Scotland and Northern Ireland are different, but I'm not completely sure how. Unless Assange flees to Glasgow, and Scotland then declares independence, it won't become particularly relevant to this case.

New guidance for prosecutors regarding retracted allegations of rape

[trigger warning]

The new Crown Prosecution Service Guidance on charges related to perverting the course of justice in rape and domestic violence cases is now up.

I didn't think they'd go with my suggestion to stop doing so entirely, but the guidance is improved on the original draft in several areas. Fortunately they did take the recommendation I and others made on DPP oversight:

All cases involving an allegation of rape or domestic violence in which consideration is given to prosecuting the complainant for perverting the course of justice or for an alternative offence such as wasting police time must be referred to the Director of Public Prosecutions.

That, hopefully, will cut down on some of the worst abuses of this charge, and make the DPP very clearly accountable for any future mistakes.

Assessments of credibility in rape culture

[trigger warning]

One of the things about rape culture is that because the default assumption is that men are always not rapists and women are always lying it becomes very hard to get a fair trial because usual conclusions about witness credibility are completely discarded.

The Strauss-Khan case is - as was predictable from the start in outline if not in details - an example of this.

The news over the last few days has been full of "revelations" that the victim in this rape case is not in fact herself perfect in the eyes of the privileged. As a result of these statements of the obvious, Strauss-Khan has been given bail (because he's considered less of a flight risk if he thinks he can win the case? I don't know...)

I'm making this post on the assumption that the news reporting is accurate. There are plenty of reasons - "unnamed source" "close to the defence" - to believe that at least some of it is rubbish, but I'm going to discuss the scenario in which it's all true.

There's been the usual rape apologism about how clearly if she lied about one thing ever she can't be trusted as a witness and is probably lying about this too. Now, if we're going to exclude anyone who has ever lied about anything from being a witness in a trial, we're going to find both prosecution and defence incredibly short on witnesses ... but it's okay if it's a rape case, because it confirms the belief that women lie about rape. (DSK's own initial lie that he hadn't been there, until the forensic report came back, gets ignored)

There's been quite a bit of effort put in by various writers to point out that this is largely irrelevant, and none of the leaked evidence remotely challenges the statements about what happened in that hotel room. That's true, but I think it goes further than that - these facts about the victim, if true, actually make it more likely that she is telling the truth, by making the alternatives less plausible.

Before these leaks, the scenarios were these:

1. DSK, a man with a reputation for sexual predation, raped a woman in his hotel room, and then attempted to leave the country.
2. DSK was in his hotel room, where he had consensual sex with a woman who had originally turned up to clean his room, who then went to her manager to claim she had been raped by a customer for no explicable reason.

It wasn't looking particularly good already, but if the leaked evidence is true the scenarios are instead these:

1. DSK, a man with a reputation for sexual predation, raped a woman in his hotel room, and then attempted to leave the country.
2. DSK was in his hotel room, where he had consensual sex with a woman, who after finishing her shift went to her manager to claim she had been raped by a customer, despite having numerous reasons to want to avoid drawing police attention to herself.

It hasn't changed the details or plausibility of the scenario where DSK is guilty at all - as has been repeatedly said, this evidence is irrelevant to the key question of "what happened in that hotel room?".

It has quite significantly decreased the - already very low - plausibility of the other scenario. It's not completely impossible, but his defence should have to work very hard to get back to "reasonable doubt". Instead, because of the massively skewed assessments that rape culture provides¹, the case might not even make it to trial now.

Of course, for the various apologists who think "A [vaguely left-wing] man? Commit rape? Impossible!" and have been sticking to that from the start, the calculation is quite different - since one of the scenarios is to them completely impossible, the other can be utterly implausible and still be true.

Footnote

¹ Outside of rape trials, in other areas of the law, this sort of assessment is obvious enough. A man walks into a police station, and reports that the previous night he was assaulted and his coat was stolen.

The police ask for descriptions of the attackers, which he gives, and open a case. It's quite likely at this stage that the attack occurred, but people do occasionally lie in crime reports. Maybe he was at a boxing club, left his coat behind, and doesn't want to tell his friends that's where he was because he'd promised to meet them in the pub that night.

The police then ask if there was anything in the pockets, and he says they contained all the drugs he was going to sell. Not only can drug dealers be mugged just like anyone else (so the fact he's a dealer should be irrelevant in the coming mugging trial), but it makes any theory that suggests he made the report up almost impossible (it was a pretty unlikely theory to start with, of course).

But, of course, rape culture discards all this assessment in favour of "well, obviously she was lying."

An ineffectual response for the scale of the problem.

[trigger warning]

Last month I asked the Government Equalities Office what the government was doing to prevent rape.

For reference, I asked them:

• what campaigns to prevent rape and/or to discourage people from choosing to rape has the Equalities Office recently run or have planned?
• what other government departments have or will soon run campaigns with similar aims?
• what recent studies the Equalities Office has commissioned or is aware of concerning the motivations, psychology and methodology of rapists in the UK, and what, if any, future studies you intend to commission?

The relevant(ish) bit of the reply is as follows:

Turning to the issues you have raised in relation to public awareness about the severity of the offence of rape, the Home Office takes the lead within government on communications campaigns on rape and sexual violence. The last campaign was run in 2006 and concentrated on the issue of consent in the context of the Sexual Offences Act (2003), which was introduced in 2004. Further campaigns have been run more recently by individual police forces; a current example of this is the joint Thames Valley Police and Hampshire Constabulary campaign: `Don't Cross the Line' - www.dontcrosstheline.co.uk. The Home Office is planning a new campaign which will raise awareness of elements of the Sexual Offences Act as recommended by Baroness Stern in her recent review of the statutory response to rape in England and Wales.

The Home Office does not currently have any plans to commission any specific research on the taxonomy of perpetrators of rape. However, officials are in regular contact with the academic community and are always prepared to engage in active consultation on issues which relate to sexual violence policy.

Not unsurprisingly, the answer is "very little". I can't help feeling that if most other crimes with a potential life sentence - and a substantial average sentence - were being perpetrated by around 5% of the population, there might be a greater sense of urgency around dealing with them than a few rare awareness campaigns mostly reliant on the initiative of individual police forces¹.

For a rough numeric comparision, using an offence of equivalent sentencing, imagine that the government was aware of a plot by the residents of Wales - yes, all of them - to drop a nuclear bomb on London. An awareness campaign that civilian possession of nuclear weapons is illegal and carries a potential life sentence might be considered to be a little ineffectual as the response.

The question of what recent studies they are aware of regarding perpetrators appears to have been ignored, too. I'm hoping that's just an oversight in replying to my questions, rather than an intentional omission because they aren't aware of any, but on previous form I'm not hopeful.

I'm going to send a few follow-up letters - to the departments named in my previous post to see what they're doing and suggest that they start; to the Home Office to find out more about this planned campaign; and to the Equalities Office to see if they are aware of existing research. As usual, I'll post the letters here after I've sent them.

Footnotes

¹ While some police forces are definitely trying to deal with rapists as effectively as possible, others are ultimately siding with the rapists through inaction. The best-performing forces have a report:conviction ratio over ten times better than the worst-performing forces.

As Baroness Stern said (in far more academic and Parliamentary language than my paraphrase, of course): "If you actually paid any attention to the existing recommendations it would be a big help."

Crime statistics? Now why would journalists understand those?

[trigger warning]

So the BBC has an article on the number of women who have been convicted for domestic violence. It's as bad as you'd expect a BBC article to be.

It notes a rise in convictions of women for domestic violence between 2005 and 2010 from 1,500 to 4,000.

The article then goes on for several paragraphs speculating about why this might be, cultures of violence in women, etc.

In the final paragraph, after most readers will have got bored and wandered off, they note that in the same time period convictions of men committing domestic violence rose from 28,000 to 55,000 - not quite as large a proportionate rise, but still big.

Further penalty points, too, for their heteronormative assumption that all domestic violence is committed against someone of the 'opposite' gender to the attacker.

Domestic violence reduction is actually a relative success for our justice system and government - with the rates of assault significantly falling, and the rate of convictions significantly increasing. It remains a serious problem - around 300,000 incidents a year - but this is a third of what it was 15 years ago, and a vastly-increased proportion (now around 1 in 6) of those perpetrators are convicted (even if not all of them get appropriate sentences).

It's still really bad and there's much still to do - but there has been significant progress made. Not that you'd know that from this article.

Lots of quotes from un-named "some experts", too - presumably because no real expert would actually put their name to such uninformed speculation.

Here's the complaint that I sent them.

Regarding your article "Women's convictions for domestic violence 'double'", I found it to be poorly researched and sensationalist, leaving a key piece of context for the final paragraph, and ignoring obvious research that could easily answer some of the "experts say this" / "other experts say that" pseudo-debate in the article. By doing so, it gives a completely misleading impression, both about the extent of domestic violence generally, and the number of women committing it.

Firstly, convictions are not at a measure of the prevalence of crime. A doubling of convictions could mean twice as many crimes were being committed, or it could mean that the number of crimes was constant but the reporting rate had doubled, or it could mean that the reporting rate was constant but improvements in police and CPS procedure meant that the chances of a conviction had doubled. Or - more likely - some combination of the three.

Fortunately, the British Crime Survey is a long-standing statistical measure of crime, including domestic violence, and - together with other CPS and Police/Home Office statistics - can be used to answer this. A quick summary of the figures can easily be found by searching for "BCS Domestic Violence" - http://www.dewar4research.org/DOCS/DVGovtStatsAug09.pdf for instance

It shows that - far from increasing, the rates of domestic violence against both men and women have been generally decreasing. The proportion of victims who were male is also roughly the same as it has been over the last decade.

Secondly, the key piece of context - that there had also been a massive increase in convictions for domestic violence in general and by men specifically - is left for the last paragraph. This is a key piece of context, which strongly suggests that much of the increase is due to improvements in prosecution and investigation - contrary to the suggestions in the early paragraphs - and yet it is buried at the bottom of the page where relatively few readers will see it.

This news of a massive increase in convictions for men is not accompanied by "some experts" wondering if it is part of a "growing culture of violence" among men - despite the 2005 number for men being seven times the 2010 number for women.

Thirdly, the article assumes throughout that all male victims of domestic violence were attacked by women, and vice versa. This is obviously not the case, but the article implies it anyway.

Please let me know what steps will be taken to ensure that such basic mistakes in reporting on crime statistics do not recur in future.

Sneaking out of public view again?

[trigger warning]

Parliament discusses rape quite a bit more often than makes the news - since the latter only seems to happen if one side or another can see advantage in drawing journalist's attention to something their opposition said.

Yesterday had a debate in the Lords with Lord McNally (Liberal Democrat), the Minister of State for Justice in the Lords, answering questions on sentencing in rape cases.

(There was also a debate in the Commons on Monday - Cath Elliott at Too much to say for myself has more on that, and particularly commends Fiona Mactaggart MP's (Labour, Slough) speech - to that I'd add that the speeches made by Helen Grant MP (Conservative, Maidstone and The Weald) and Jenny Chapman MP (Labour, Darlington) are also well worth a read.)

A few of the exchanges in the Lords debate are interesting in themselves.

The first, from Lord Campbell-Savours (Labour). If you've been lurking here a while, you know what's coming next.

My Lords, would it not be quite wrong for the Government to duck legislating in the area of rape, given the problem we had this last week? In particular, the argument over whether men should have anonymity in rape cases remains outstanding, as does the question of whether women who make false allegations should enjoy the anonymity that they currently enjoy.

Lord McNally's reply is:

I know that the noble Lord has raised these matters on a number of occasions. The Government's sentencing and legal aid Bill will shortly come before the House-or, rather, before Parliament, as it will go to the Commons first-and it will give us a chance to consider again the issues that he has raised consistently. However, his assertion that there are large numbers of false claims for rape is not, as far as I am concerned, borne out by research.

I had hoped that issue was done with for this Parliament, but of course while the Government might no longer want to pursue it, that's not to say they'll stand in the way of a backbench amendment. The Sentencing and Legal Aid Bill isn't yet on the list of bills, but it seems like it will need watching.

On the positive side, Baroness Gale (Labour) asks:

My Lords, all incidents of rape are serious and to indicate otherwise sends the wrong message to victims of rape. Will the Minister give an undertaking to ensure that there is a public awareness campaign about the laws on rape and consent so that we make it absolutely clear that non-consensual sex is a serious offence? I believe that this would clear up any misunderstandings that have happened over the past week.

Lord McNally replies:

I do not think that there are misunderstandings from over the past week. There has been no doubt that this Government take rape very seriously, and the Secretary of State takes rape very seriously. The amount of money, even at a time of difficulty in overall spending, has been maintained and the number of rape advice centres has been extended. However, I agree with the noble Baroness that it is time to publicise the seriousness of rape, and I think that that could be started in the schools and by looking at some of the worrying things in advertising, in pop music and in some of the newspapers, which have been so quick in their editorial pages to condemn my right honourable friend. Some of those should look at where they put the position of women in society and whether they encourage young men to give women the respect that they should have. That might be a start.

Effective government initiatives designed to directly oppose rape culture, and especially to stop men from picking up the attitudes that lead to far too many of them becoming rapists, would be extremely welcome. Prevention is far more important than detection and punishment, where rapists are concerned.

It seems to me to be worthwhile to try to get that bandwagon rolling by contacting the various departments and Ministers who might be most involved with this.

It would of course be essential for the government to actually consult with rape victims and survivors, support organisations, and so on, to make sure that it was effective and to prevent a repeat of some of the disastrous victim-blaming campaigns that have come out in the past.

Edit: Given that one of the key areas would be Sex and Relationships Education in schools, this is going to be an uphill struggle.

On Clarke's policy and comments

[trigger warning: rape, prison]

So, the big news recently is that Kenneth Clarke MP (Conservative, Rushcliffe, Minister for Justice) has made some comments about rape. As with a previous occasion, what he said was appalling, but it still wasn't particularly good even just considering what he meant.

The BBC has helpfully provided a transcript of the interview.

A bit of background: Clarke is considerably more liberal on punishment than the average Conservative, concentrating more on alternatives to prison. This has brought him into conflict with both his own party and with Labour, who generally support the "lock 'em up and try not to think too hard about what to do next" approach to sentencing.

At the moment, a suspect who pleads guilty can expect to have their sentence reduced by up to a third. Clarke proposed that this be increased to a possible reduction of a half, for all crimes.

Labour opposed this, and Clarke's junior minister, Crispin Blunt MP (Conservative, Reigate) gave rape victims as an example of people who would benefit from early guilty pleas. Sadiq Khan MP (Labour, Tooting) asked a follow-up question, which Clarke then answered.

The press reporting then concentrated on the effects on sentencing for rape, and Clarke gave the interview above.

He has since clarified that he thinks "all rape is a serious crime" and that he had made the "wrong choice of words" earlier.

So, two things:

On Clarke himself

He is not the best person for picking the right words, which is a political liability, though not a moral one. However, I think his problems regarding the treatment of rape cases go beyond that.

I'm willing to give the benefit of the doubt that, intellectually, he gets that all rape is serious, that rape without additional violence is still serious, that rape within a relationship is serious, and so on. The problem is that he doesn't appear to instinctively understand this.

So, when he's under pressure - in an interview or in the Commons - and doesn't have the luxury of thinking it through, he says things that he wouldn't otherwise say.

I don't think he should be sacked as Minister for Justice over this - bad as his instinctive attitudes on this issue are, they're fairly typical for a privileged man who's spent their whole life soaking up rape culture, and so I have no confidence that anyone the coalition picks as a replacement would be any better. (Yes, there are people on the coalition benches who would be far better on this issue, but they're not likely to get the job if Clarke steps down)

I would, however, recommend that he does a lot more reading of the research on rape and rapists, until it starts to sink in at an instinctive level. It would - as well as the general benefits to society of having a Justice Minister who got this - make it less likely his verbal slip-ups would be in the pro-rape direction.

One of the exchanges in the transcript that hasn't yet been widely picked up on is this one:

Derbyshire (interviewer): Have you met women who've been raped?

Clarke: I've taken part in rape trials. I was a lawyer, sort of, yes I've met women who've been raped.

Derbyshire: And have you put this idea to women who've been raped?

Clarke: No I haven't put this idea to women who've been raped because I haven't met one recently. My experience of rape trials….

Now, the idea of halving sentences for guilty pleas has been around for a while. I can find news reports from late 2010 that talk about it as a policy proposal that had already been introduced by the coalition.

Quite evidently the chances that Clarke has met no women who have been raped since then are zero. He might not have sat down with anyone to ask "as a rape victim, how do you feel about this plan?" (though, one might think that asking the people a policy will supposedly benefit might be a good start) - but that's not quite the same thing. (Derbyshire's first question from the exchange isn't useful for much the same reason)

Intellectually, but not instinctively.¹

On the policy

It all comes down to the details, of course, but I think the policy in general is fairly good - and it would be a shame if it was lost because Blunt and Clarke can't keep their feet out of their respective mouths.

Prison - in contradiction to former MP Michael Howard (Conservative, Lords) and current MP Jack Straw (Labour, Blackburn) - does not work all that well. For crimes so severe that life imprisonment is appropriate for the protection of society, it's necessary.

For other crimes, society - those parts of society living outside the prison walls, at least - may be temporarily protected while the offender is in prison, but unless successful work is done on rehabilitation, that often stops when they're released again.

We don't know anything like as much about rehabilitation as we should - because it's been far easier for politicians to go for a populist "lock 'em up" approach. So keeping people on average in prison for less time, and using the significant savings to fund more and better rehabilitation programs, seems an excellent idea in general.

What about for rape?

From what we know about rapists, any rapist who actually gets caught has probably committed several rapes that most people don't know about. (Weinrott and Saylor's research, for instance, estimates an average of 10, though with significant variance). Numerous studies into undetected rapists have shown that they will readily admit to raping people - provided they're asked "did you do action X?" not "did you do action X which is rape?".

The likelihood of a released rapist reoffending is therefore almost certainly really high. Effective intervention and rehabilitation - given that we don't give most rapists a life sentence - would therefore significantly reduce the number of rapes. Letting a rapist out after two years, with effective rehabilitation so that they don't reoffend, is far better than letting them out after four years without that and having them continue their crimes (I'm assuming an average 8-year basic sentence, halved for general parole, halved again for an early guilty plea).

(Starting early on the rehabilitation might also prevent them committing more rapes while in prison, which is an aspect of the crime and punishment debate which gets swept under the carpet rather too often)

Can two years of prison costs, targeted on someone who entered a very early guilty plea and so is perhaps more likely to be reformable, deliver a highly effective rehabilitation programme? I've absolutely no idea. That's for government researchers to figure out, and as I said, it all comes down to the details.

It seems, to me, that if after doing that research it looks feasible, that it's got to be worth trying. We can't end rape by locking up all the rapists - there's just too many of them by several orders of magnitude. That's not to say that temporary imprisonment of the ones we catch won't help, but it can't solve the problem.

Prevention of rapes, by preventing people from becoming rapists, and convincing existing rapists to stop, is the only way that rape will stop being such a major problem. Imprisonment is a fairly ineffective way to convince rapists to stop - we need something better. If Labour and the Conservatives are going to unite behind a "tough on crime" populist stance every time alternatives are suggested, this won't happen soon.

Footnote

¹As an aside, this is yet another problem with having MPs and senior civil servants mainly come from the most multiply-privileged section of society (which is unsurprisingly also the section least likely to be raped). A government and civil service that more reflected who actually lives in society would notice these things before the public mistakes.

"Intellectually, but not instinctively" is the reason why well-meaning privileged allies are no substitute for people with lived experience, and that includes in Parliament. The counter-argument that MPs have to represent all their constituents really misses the difference. I've written about this before.

False allegations - response to CPS consultation

[trigger warning]

The Crown Prosecution Service are holding a consultation on the prosecution of false allegations of rape. My own response is copied below - Laura Woodhouse at The F-Word has more background information and Women Against Rape have a response to which they are inviting additional signatures.

The deadline for consultation submissions is tomorrow (6 May) so there's not a lot of time if this is the first you heard about the consultation. (Government consultations such as this are not well publicised, and this isn't the first time I've missed or nearly missed something I wanted to comment on)

Here's my response. Most of it covers the 'public interest' criteria for prosecution. Quick summary if you don't want to read the lot - I believe it's basically never in the broader public interest to prosecute, even if it appear to be in the narrow public interest when only looking at a particular case.

I had [stronger trigger warning] this Shakesville post about a recent US case in mind for a lot of what I wrote, and one of the references is taken from comments there.

Question 1

The description of perverting the course of justice is clear.

Question 2

In paragraph 15 - for reasons I discuss more fully in my answer to the following question, I believe that for there to be evidence of a false allegation there needs to be far more than simply a lack of evidence of a rape.

To have victims of rape who are considering reporting second-guessing themselves as to whether the evidence they have is strong enough to prevent a charge being placed against them is fundamentally unjust, and as paragraph 13, and the recent Home Office study on attrition [1] point out, there are many reasons that a victim might later decide that they do not wish a prosecution to proceed.

Since a retracted allegation is not therefore sufficient evidence in this case of the initial allegation being false, I believe that prosecutors would need to look for affirmative evidence that no rape occurred, rather than for a lack of sufficient evidence that a rape occurred - the latter, of course, being all too common for true reports of rape for it to be used as evidence of falsity.

Question 3

Regarding the public interest factors set out in the consultation document, I believe that there is a major factor missing for consideration, under which a prosecution would only rarely be within the public interest.

Rape and sexual offences, as is known from the British Crime Survey and many other sources, are rarely reported to the police in the first place. Distrust of the police and/or courts is cited as a common reason for not reporting.

Kelly's 2001 literature review for the CPS [2] refers to research by Jordan into recorded false allegations, which found that:

[...] within the file analysis were three cases that were designated false reports which subsequently turned out be assaults by serial offenders. Additional analysis of one serial rapist case showed that an early report by a young woman who named her attacker had been discounted as a false report; the man was convicted of 24 rapes eight years later.

Prosecuting a suspect who has been deemed to have made a false allegation is therefore extremely risky. Should the allegation be true, and have been retracted under duress, or - as has led to prosecutions recently - been deemed false by the police or CPS without a retraction, then to prosecute that suspect firstly revictimises them again, and secondly leaves a rapist free to rape again.

Furthermore, the idea that a victim can report rape - as victims are encouraged to do by the police - and then end up facing trial herself, is utterly abhorrent, and serves as a severe deterrent to reporting. There are very few other crimes - including those where false reports are more common - where people would find themselves scared away from reporting the crime for this reason.

The public interest test therefore needs to be considered more generally. The ultimate public interest of prosecuting crimes is that future crime is deterred and reduced. Rape is a far more common crime than perverting the course of justice through false allegations of rape. It is also - despite the maximum sentences being identical - a more serious crime.

It might be possible, taking a single case in isolation, to conclude that it is in the public interest to prosecute someone for making a false allegation. However, because of the particular contexts in which rape occurs and in which accusations of rape are investigated and prosecuted, it is not sufficient to consider that case in isolation.

If by prosecuting a case, one successfully punishes the maker of a false report - but by doing so, deters even one other person from reporting their own rape, and so leaves a serial rapist free to commit several further crimes - Weinrott and Saylor [3] found that convicted rapists on average had committed ten times as many rapes as they were eventually prosecuted for, as well as numerous lesser violent crimes.

It would therefore be very hard indeed to argue that the prosecution was in the interests of the public as a whole.

That prosecutions relating to false allegations of rape (but not false allegations of other crimes) are regularly reported in the press means that the likelihood of such a prosecution having a deterrent effect are extremely high.

Hundreds of thousands of rapes occur in the UK each year. Mere hundreds of false allegations are made, and those in which a suspect is named by the accuser are much rarer - arrest or charge of a suspect based on a false allegation is rarer still. Even a tiny deterrent effect could therefore let a significant number of rapists go undetected.

In addition to this, of course, the high-profile reporting that false allegations receive feeds in to the common belief among many members of the public that false allegations are commonplace. This attitude and culture is something that the CPS already have to work against. By prosecuting a false allegation case, prosecutors may be directly increasing the difficulty of the - already difficult - task their fellow prosecutors have in prosecuting rape cases. Again, this is difficult to justify as being in the broader public interest.

A consideration of whether prosecuting the case could increase the likelihood of other rapes being committed, other rapes remaining undetected, and rapists being difficult to prosecute successfuly - causing great harm to the general public interest - should therefore be weighed against the local public interest served by prosecution of an individual case.

Question 4

The explanation of "double retraction" is clear. However, under the circumstances described in paragraph 26, I am unable to think of a situation in which a prosecution would be in the public interest, for the reasons of the matter of logic stated within that paragraph.

An example of a case where prosecution might be in the public interest is perhaps needed here.

Question 5

Given the likelihood of a prosecution having wider repercussions beyond the narrow public interest of prosecuting a particular case, and the difficulties therefore caused in achieving justice for future victims of rape, I believe that the interim measures described in paragraphs 29 and 30 (referral to the Director of Public Prosecutions) should be made permanent.

These cases are extremely rare, but the need for oversight at the highest level is clear.

References

1. A gap or a chasm? Attrition in reported rape cases. Kelly, Lovett and Regan, 2005.
2. Routes to (in)justice: a research review on the reporting, investigation and prosecution of rape cases. Kelly, 2001
3. Self-Report of Crimes Committed by Sex Offenders. Weinrott and Sayler, 1991

Coda

[trigger warning]

Parliament recently discussed Anna Soubry MP's (Conservative, Broxtowe) Anonymity (arrested persons) Bill, which would have made it a fairly serious offence to report in the press on the arrest of a person who had not yet been charged, except where a court order allowed this.

Various points were raised in the debate, including:

• the possibility of abuse of this by making it difficult to discover patterns in arrests, or making it difficult to discover that a politically-sensitive arrest had been made;
• practical difficulties of enforcing this form of reporting when news travels rapidly on the internet, and by gossip within geographic communities, outside of the scope of the press;
• the risk of legislating in general to cover a problem that affects only a tiny minority of cases;
• that a token fine is unlikely to dissuade a newspaper, but a custodial sentence for the editor is conversely rather harsh;
• that it would be difficult to bind foreign media available in the UK, of which there are many.

All relevant points, of course, on both the undesirability and the impracticality of a general ban on this sort of reporting.

Other than the Bill's sponsor, and the Minister (Crispin Blunt MP) responsible for this area of legislation, though, I'm not sure that a single one of the (mostly-male, mostly-coalition) MPs speaking in this debate raised any of those points in any of the previous debates on reporting restrictions in rape cases.

(A pattern mirrored in the internet debate of those proposals, where the usual "free speech"/"freedom of the press" advocates were largely absent from the discussion when it was only about rape cases.)

Collecting and interpreting rape statistics

[trigger warning]

Since some of this isn't completely obvious, and so I want to write this down for my own use later if nothing else, here's a post on the difficulties of collecting statistics on the prevalence of rape. A lot of this applies, in other forms, to collecting statistics on just about anything that happens to humans, but because it's working against privileged structures, statistics about rape get criticised more for the same inevitable problems.

A lot of the problems aren't as important as they're made out to be, though, from the point of view of having useful statistics. (Furthermore, despite the problems, the statistics are all relatively consistent to within an order of magnitude)

I'm discussing the problems here from the perspective of statistics on victims; statistics on perpetrators have basically the same sort of problems.

Definitions

The first difficulty is that the colloquial and legal definitions of rape vary considerably. Colloquially rape is sex without consent. Legally, this could be any of "rape", "assault by penetration", "sexual assault" or "legal". Furthermore, the same sexual activity could be rape if A does not consent, but "only" sexual assault if A consents and B does not, because of the asymmetry in the law discussing penetration.

This is to an extent an inevitable problem with the law. The Sexual Offences Act 2003 defines "rape" and "assault by penetration" very precisely. Everything else, whether it would generally be considered rape or not, is "sexual assault". This matters, because the maximum sentence for sexual assault is ten years, whereas rape and assault by penetration have life sentences. Providing a loophole-free legal definition of rape is the same problem as providing a loophole-free definition of sex and adding "without consent" to the end of it.

Add to this the "reasonable belief" exemption in law that means many things that the victim will call rape the law will call "legal" or "no crime".

The problem comes, then, when you try to do any sort of measures of prevalence. People will correctly say that they were raped when it wasn't rape in legal terms. There seems to be some attempt to deal with this in the British Crime Survey's figures on sexual assault, which split "serious sexual assaults" (which include rape and assault by penetration) away from "less serious" (indecent exposure, sexual touching, sexual threats, etc: note that "sexual touching" is in law the same crime as raping someone by forcing them to penetrate you)

If you classify according to the strict legal definition, then you inevitably lose quite a few rapes in there buried in the sexual assault and no crime categories. If you classify according to the colloquial definition, then it becomes much harder to do comparisions with the statistics produced by the criminal justice system (and apologists will claim that your statistics are worthless because they don't only include government-approved rapes)

There's also a question of whether to include the "attempted" types of crimes within the statistics. I think that one should, because the difference between the two is largely down to random circumstances, and either way there's a rapist to apprehend: that they didn't get quite as far as raping this victim (but far enough to make it clear that they were going to try) shouldn't be considered.

Reporting

The second problem is that being a victim of rape has an extremely strong stigma associated with it, and even if it didn't, as a traumatic act it's something that some victims block out of their minds. (Associated with this, misconceptions about consent aren't just confined to rapists, so it's common for people not to define what was done to them as rape until much later, even though they're dealing with the psychological consequences immediately)

So it becomes very difficult to find out if people have been raped by surveying them. The British Crime Survey tries to do this by asking questions about actions rather than about legal definitions, and this does help - around twice as many people will say that someone did [action(s) constituting rape] to them than will say that someone raped them. However, you then inevitably have the situation that the survey is only as good as the questions are exhaustive (and even then despite good methodology people may decline to answer).

We can use the surveys to establish some upper and lower bounds, at least. The 2009/10 BCS data gives 0.4% of women and 0.1% of men, in the preceding year, have been subject to rape, assault by penetration, "serious sexual assault" and/or an attempt at either. We can't necessarily scale up from this to a lifetime prevalence (if we for simplicity assume the likelihood of being raped doesn't change with age¹ it gives a likelihood of 17.6% of women and 4.4% of men, not all of whom will be raped in the legal sense).

The NSPCC survey (page 66 onwards) gives figures for sexual violence of around 27% for girls, 16% reporting that they were pressured into intercourse (6% with physical force). There's no particular attempt to match these up to legal categories, but it's obvious here that the risk to 13-16 year old girls (not varying much by age within that) is considerably higher than the average risk for the 16-59 year old adults covered by the BCS. The NSPCC survey notes that figures between 4% and 78% have been found by other surveys of children, with - as with adults - there being a significant gender split in perpetrators and victims.

Meanwhile the Havens survey says that 41% of 18-25 year old Londoners have felt pressured into unwanted sex. 9% of women in the sample had said no and been ignored, and 25% of women (almost certainly a strongly overlapping set) had said nothing and been ignored².

Measuring the legal system

It's relatively easy, within the provisos of the definition problems, to get statistics on the legal process - convictions, prosecutions, arrests, reports. Relying solely on those statistics is a mistake: the attrition rate from report to conviction has worsened considerably since the 1970s, while the number of convictions has increased. What's happening is that rapes that wouldn't previously have been reported - and marital rapes that were legal until 1991, for that matter - are now being reported ... and the justice system hasn't caught up.

There isn't any comparable prevalence survey going back that far - the BCS only started asking about sexual violence in 2004 - but despite everything, and despite appearances, the justice system is probably better now (with its 90%+ attrition rate, and widely reported failings) than it was in the 1970s with a much lower attrition rate - because most of the attrition was occuring before reporting.

Measures from the justice system aren't useful for measuring incidence of rape, but they are useful for measuring the (in)effectiveness of the justice system (and hopefully improving it). It's important, however, to note that the definitions problem makes it very difficult to compare prevalence statistics with justice system statistics (which makes getting meaningful figures about reporting rates - beyond "very low" - very difficult indeed).

Another problem is that the categorisations used for reporting and police activity - the report to charge stage - use one set of categories (managed by the Home Office), but the categories at the charge to conviction stages use a different set (managed by the Ministry of Justice). This makes sense, because the police often won't know exactly what crime has occurred until after they've investigated, whereas the CPS and courts do know the details of the charges, but it makes comparisions tricky. Kelly, Lovett and Regan's attrition study dealt with this by following cases right through the report to conviction process (or as far through the process as they got, anyway).

The need for statistics

On the one hand, it doesn't really matter at this stage. It's very clear from the statistics that the (lifetime) chances of being raped (in the colloquial sense) are somewhere between 1 in 20 and 1 in 2 for women (and most probably around the 1 in 4 figure generally quoted), and lower (but still probably higher than most people would guess) for men. Wherever it falls within that range, it's still a massive problem (we view murder as a serious problem at the far lower 1 in 1000³ lifetime prevalence, and rape is sentenced similarly)

On the other hand, if it's not to remain a problem, there's a need for accurate statistics to monitor things over time, so that it's possible to tell if actions to deal with the problem (by bringing rapists to justice and more importantly because we don't have space for all of them by educating people so they don't become rapists).

Fortunately, for the purposes of accuracy, it doesn't matter than much exactly what definitions you use, as long as you're consistent over time. You'll always only be asking about - and being told about - a particular subset of sexual violence, but you should be able to measure trends in it. The way that rape culture works, it's vanishingly unlikely that one particular form of sexual violence that you're surveying will disappear or expand while the rest remain unchanged.

As long as you remember that changes in methodology are likely to give changes in result significantly larger than any change in the underlying facts, then changes can be seen (and yes, this means sticking with methodology you know is flawed, at least until you've run it in parallel with the improvements for a few survey cycles to see what difference it makes).

A final thing to note - and bear with me here - is that accuracy can be overrated. For year-to-year comparisions about the scale of the problem, a repeatable survey that's not too vulnerable to random noise is needed. For surveys to establish the existence of a problem within a particular context, it's not. There was a recent NUS Women's Campaign survey looking at female university students' experience of sexual violence, which gave the predictable results. It wasn't at all statistically sound: self-selected sample, no attempt to normalise it demographically, massive difference in response rates between universities, etc. but that doesn't actually matter for establishing the existence of the problem.

Now, if universities were to take the NUS survey seriously and start doing (actually useful⁴) things to reduce sexual violence on campus, then a survey less sensitive to random noise would be needed. But if they were going to take it seriously they'd fund their own surveys for that purpose, and if they're not going to take it seriously a "yes, this is still a problem, what did you expect?" survey is all that's needed.

Footnotes

¹ I believe it decreases with age, but I don't have the figures for that.

² This brings us back to definitions. Silence is not consent, but the law usually takes it as such. But you'd never find out about this set of colloquial rapes/sexual assaults if you didn't ask that specific question.

³ Massive variation with gender, cis/trans status, age, race, class, sexuality, disability, location, etc. As a society we don't view the elevated number of murders of certain non-default individuals as a problem, even if the murder rate as a whole is considered a problem.

⁴ Putting up "have you considered not getting raped?" posters, for instance, is fairly common and massively counter-productive.