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.

A distant but relevant memory

Strange how seemingly unrelated events can remind you of things you hadn't thought of for years, isn't it.

Back in the mid-90s, there was a computer game called Frontier: First Encounters, an approximate sequel to the old Elite. It was set in 3250, with humanity spread across over hundreds of light years of space and 3 major political alliances.

Anyway, one of the side plots related to a legal dispute. An influential person had arranged the assassination of an opponent, whose family tries to have him brought to trial. He hires a bunch of lawyers who advance the following argument:

1. Our client is "innocent until proven guilty"
2. He hasn't been proven guilty, so therefore he is innocent
3. Since he's innocent, the accusation of murder is libellous, and so we're suing you.

(The dispute is only resolved when the lawyers are bombed from orbit.)

There's a bit of text explaining why their legal strategy works - the influential person had spent years lobbying for the law in the relevant star system to be rewritten in his favour. There seem to be a lot of people who think that's how "innocent until proven guilty" already works, which just shows the difficulty of developing sufficiently implausible satire.

Review: "Yes, Prime Minister"

"Yes, Minister" and "Yes, Prime Minister" were among my favourite TV shows when I was younger, and have continued to be so. When I heard that there was a stage play being produced, again written by Anthony Jay and Jonathan Lynn, I knew I had to make an effort to see it.

After all, what could go wrong?

Quite a lot, as it happens...

[trigger warning: child sexual abuse]

The play is in 2 acts and lasts approximately 2 hours. There are approximately four scenes (or three scenes, one cut in half by the interval), all set at the PM's office at Chequers. The programme talks about the changes in the process of government since the original series was written, and the decline in the power of the civil service due partly to MPs bringing in special advisors - SPADs - represented in the play by the character of Claire Sutton, and partly to the efforts of Thatcher and later Blair to break their entrenched power.

The first scene sets up a typical situation, easily recognisable in the style of the original series. Hacker has organised a conference between EU states to discuss the economic crisis, and it's not going well. However, help is at hand, as the oil-rich fictional former Soviet state of Kulmenistan is offering a multi-trillion Euro loan, in exchange for the construction of an oil pipeline and the future purchase of their oil.

The conflict between Sir Humphrey and Jim Hacker appears out of this - Sir Humphrey has tried to hide in the loan terms British entry into the Euro, which Hacker strongly opposes. Bernard's conflicted loyalties to his two bosses are well characterised, and Claire's entry as the special advisor helping Jim get the better of both Humphrey and the press seems to be setting up further inter-character conflict, and introduce a new source of humour.

In the second scene - and the third scene which continues it after the interval - however, things take a very different turn. This is the "darker and edgier" Yes, Prime Minister ... and it all goes very wrong.

As the conflict between Jim and Humphrey grows, and the BBC phone with requests for Hacker to appear on a "Government in crisis" TV programme, Bernard rushes in with bad news - the Kulmenistan foreign minister, staying overnight at Chequers, has demanded [trigger warning] to be given an underage girl to rape¹, with the strong implication that the loan deal - and with it the European economy - will be dead if he doesn't get his way.

So ... the next hour or so is mostly jokes that are either directly or indirectly about rape. That - as well as being generally unpleasant - distracts from the satirising of political life. There were plenty of other issues the writers could have used to convey the moral dilemma - can you secretly and illegally sacrifice an unwilling individual to save a country - which would have fitted more closely into the atmosphere of the first scene.

It's at this point that the characterisation falls apart. Bernard - having been established to be torn between his loyalties to his bosses - never has to make that decision again in the entire play. Claire's antagonism with the civil servants, too, is forgotten, and her brief appearances in the first scene have to suffice for her character development. Since even long-term fans of the series will never have met her before, she ends up unable to rely on merely re-establishing an existing character, and becomes rather 1-dimensional as a result.

Hacker - portrayed in the TV series as well-meaning, but rather out of his depth at times among the civil servants and press - is exposed in the play as solely concerned for his career, and incredibly misanthropic. The original Hacker was trying to do the best for the country - the Freedom of Information Act, for instance - and the corruption of power, and trying to avoid press scrutiny, came with that. He was naive and frequently outclassed, but not incompetent. The new Hacker is solely interested in being Prime Minister so that he can be Prime Minister - he appears to have no particular goals in mind other than that. He's arrogant and ruthless - but also incompetent: the complete opposite of the old Hacker. Is this complete personality reversal Claire's doing? If so, that didn't really come across.

Now, admittedly, there are quite a few professional politicians whose sole goal seems to be self-perpetuating electability - it's not unrealistic as such - but it doesn't work here. Unless you can sympathise with Hacker, and view him as someone who is trying to do good despite the situation he's in, then why should you care when Humphrey foils him, or cheer on the rare occasions he gets a small victory?

Humphrey himself seems hopelessly outclassed by this new ruthless Jim Hacker, and unable to defend himself against Hacker's repeated - and monotonous - threats of bringing in a Civil Service Bill. Surely after the first time he'd have started considering ways to counter this "ultimate weapon" of Hacker's? Why does he even continue helping Hacker at this point, rather than taking the rather obvious opportunity to rid himself not only of Hacker but of Claire Sutton too, in exchange for a more pliable PM?

Meanwhile, the focus of the show shifts from character-driven conflict between the four principal characters, to them working together to decide whether or not to provide the foreign minister's victim, and having decided fairly quickly to do so, considering the logistics of doing so and getting away with it. In the end, the foreign minister gives up on them and goes to sleep long before they themselves give up on the idea.

Then, of course, there's Kumranistan itself. You keep hoping for some kind of twist ending, where the foreign minister and ambassador were testing their host's moral courage - but no, everything is exactly as it originally seemed in that regard. The country could easily have been called Generistan (they're all interchangeable anyway, right?) - it's a simple caricature of an eastern Islamic dictatorship.

Where the characters - mainly Hacker - used racist slurs, they were generally called out on it by the other characters. Unfortunately the same can't be said about the setting details and plot, or the rest of the character's interactions. The inconsistency of calling out slurs but condoning treating foreigners lives' as worthless² may theoretically have been an intentional point - but given how unsubtly most of the other hypocrises and moral issues the play raised were highlighted, that seems unlikely.

The eventual solution to the original problem of the failing conference - distract the press from it with an unrelated policy announcement - does return to the show's roots quite well, in a short few minutes in the final scene, but this could have happened at the end of the first scene with no real loss of continuity. It's as if the writers, having written a good 40-minute show, that would have made an excellent start to a new TV series, realised that they needed to fill in an extra 80 minutes of play, and lacking any better ideas filled the majority of it with rape jokes that went precisely nowhere.

Near the end, Bernard laments that he thinks he has lost his moral compass. The play's problem is that it does the same. A promising start very quickly hit the bottom and kept digging.

Footnote

¹ The characters, despite spending most of the play talking about or around the topic, of course never use the 'r'-word. Not even Bernard, who is the most uncomfortable of the four with the idea, and attempts to discourage it, will call it what it is.

² Hacker's remaining moral issues with providing the foreign minister's rape victim are resolved when he realises that she doesn't have to be British, and suggests finding a trafficked foreign prostitute instead. He then without a second thought or a hint of moral conflict has the girl he was considering sending to the foreign minister arrested by the military police as a terrorist suspect, solely to save his own career.

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.

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.

Rape prevention: reply from Ofcom

[trigger warning]

Here's the answer I received from Ofcom regarding the Broadcasting Code. It's good enough on paper, but how it gets applied in practice is the key.

After confirming that "violence" in section 2 did include "sexual violence", despite a distinction being drawn between the two earlier in the document, I got this answer to my question on section 3.

The application of Rule 3.1 is essentially concerned with incitement, that is - very broadly speaking - the active encouragement of crime or disorder. Were a broadcaster to include material that actively encouraged or procured the commission of sexual offences it would be in breach of the rule. I think the prospect of such material being screened is remote.

Our application of the Code to the portrayal of sexual violence is strict. We recognise it as an especially sensitive area - from the point of view of offence as well as of harm (particularly in respect of its possible effect on those (few) men with violent sexual impulses towards women) - and regulate it accordingly.

From that answer it seems most likely that challenges to Ofcom regarding the screening of sexual violence portrayed as legitimate sexual behaviour are more likely to succeed under Rule 2.4 than Rule 3.1. I watch very little Ofcom-regulated broadcast material myself, so I expect that I won't personally be putting in any complaints - but if you do, drop a note in comments to say how it went.

Sex education and rape prevention: consultation response

[trigger warning]

Earlier, the Department of Education recommended this new consultation regarding the department's work on rape prevention.

Here's my response - if you have any opinions on this issue, or additional evidence for them to consider, I strongly recommend that you send a response to them as well (the consultation is open until the end of November). Many of the questions relate to details of the curriculum or teaching process, or request case studies for best practice, neither of which I'm able or qualified to provide. There were a few more general questions as well, though.

I am responding to the consultation Review of Personal, Social, Health and Economics (PSHE) Education. This is a response to question 2, though elements of this answer have relevance to questions 1 and 6c as well.

I believe that the teaching of sexual consent needs to be significantly extended, and begin (in age-appropriate terms and levels of detail) at a young age. A discussion and debunking of the various common myths around sexual consent should take place before any of the children are likely to become sexually active with their peers, and this should be reinforced throughout the PSHE curriculum.

The current guidance, while covering the concept of consent, does so only in broad terms. Discussion of sexual violence is largely limited to that perpetrated by adults against children, with sexual violence perpetrated by children against each other ignored.

Children should be encouraged to see consent as an active rather than a passive state ("Yes means yes" rather than "No means no", colloquially) and to avoid tolerating a disrespect for consent by their peers.

Research supporting this view:

Lisak and Ivan found that sexually aggressive men were considerably more likely to believe the various myths about rape and consent (e.g. that flirting indicates consent to sex). By making sure that these myths are firmly and consistently counter-acted throughout schooling, the number of people believing in them could be reduced, thereby reducing the numbers of rapists and potential rapists in the population.

Weinrott and Saylor found that the vast majority of convicted rapists were serial rapists with an average of around 10 victims. Studies on undetected rapists (e.g. Lisak and Miller or McWhorter et. al.) show a similar pattern, though with a lower average. Many of these rapists had begun their offending during adolescence. It is therefore important to begin education about consent early, before the idea that sexually aggressive behaviour is normal takes hold.

Lisak goes on to say:

the research on undetected rapists tells us that actually a very small percentage of men - serial sexual predators - are responsible for a vastly disproportionate amount of the sexual violence in any community. These men cannot be reached or educated. They must be identified and removed from our communities. Our prevention and education efforts must be focused on the vast majority of men who will never themselves cross the line into criminal behavior, but who by their participation in peer groups and activities either actively or passively provide support or camouflage for the sexual predators in their midst. By laughing at their jokes, by listening uncritically to their stories of “conquests” and “scores,” men become facilitators or passive bystanders of criminal behavior.

Educating children early enough that they do not become serial sexual predators themselves, and have the confidence to avoid creating a supportive environment for those that do, is therefore vital in reducing the current high levels of sexual violence among adolescents and young adults.

Rape prevention: trying hard to avoid giving out useful information

[trigger warning]

So, here's the second reply on rape prevention from the Equalities Office / Home Office.

Thank you for your interest in the Home Office’s work on sexual violence. We are happy to confirm that the Home Office is currently planning a new communications campaign on sexual violence; work on this will begin in November.

I suppose "will begin in November" is more information than I previously had.

The Home Office collaborates with a number of other government departments on the issue of rape and sexual violence. In particular, but not exclusively, we work closely with the Department of Health, the Ministry of Justice, the Crown Prosecution Service, the Department for Education, and the Department for Communities and Local Government.

Home Office officials have regular contact with the academic community on a variety of issues relating to sexual violence policy. These contacts form a useful part of the policy development process. Officials are always happy to take into consideration any useful research and would actively encourage discourse with anyone who has a research interest which is aligned with the policy area.

I had asked what research they were currently using, of course. Such a vague answer - the second time I've got that sort of vague answer to a fairly specific question - suggests that they may not actually be using any.

I might try using FOI requests instead. (I prefer not to, since they're inconvenient to be on the receiving end of, so I try to make informal requests first)

Anyone else know what this campaign in November is going to be about? Other than somehow about rape and other sexual violence?

Rape prevention: response from Education

[trigger warning]

Here's the reply from the Department of Education, which I received yesterday, on rape prevention (with minor edits for readability on the web, that do not affect meaning, and contact details removed)

Thank you for your email dated 4 July 2011 asking for information about the department's role in safeguarding teenagers from abuse. I have been asked to reply.

The Department for Education is committed to making a strong contribution to the cross government Action Plan on Violence Against Women and Girls which is led by the Home Office. This reflects our responsibility for safeguarding young people and our strategic leadership of the education system.

The Department`s actions include:

• Taking forward recommendations from the independent Reg Bailey report on sexualisation and commercialisation of young people.
• Considering the teaching of sexual consent within the Personal Social and Health Education Review. The issue of consent is already covered within the Department's guidance on sex and relationships education (SRE) which can be viewed from our website.
• Anti bullying and behaviour - every school must have measures to encourage good behaviour, respect, and to prevent all forms of bullying amongst pupils. These measures must be part of the school's behaviour policy. Following consultation a final version of guidance for school leaders and governors will be published at the end of July 2011.

They also suggested I contacted the Ministry of Justice, which I'd already done.

The guidance is fairly sparse on consent, as it happens. There's a couple of bullet points on helping people 'avoid being abused' (which is not great wording), half a bullet point on "avoiding [...] exploiting others".

The concept that school children might be committing rape is entirely ignored, though the document does contain a fair amount of information on the possibility of them being victims.

The guidance (2000) predates the repeal of the heterosexist "Section 28" (2000 in Scotland, 2003 elsewhere), so contains the bizarre phrase "There should be no direct promotion of sexual orientation." which I'm fairly sure is universally interpreted as "only directly promote monogamous heterosexuality".

There's also a note about what the National Curriculum contains on the subject, which is mainly about the biology of sexual reproduction, and the enforced requirement to learn some oversimplified rubbish about "sex determination" in humans that very harmfully erases the existence of trans and intersex people (and so makes it harder for people to accept their existence later on). I understand why topics need to be simplified for school, but there's "simplified" and there's "outright wrong".

It'll certainly be better than whatever it replaced - I went through SRE well before this guidance was introduced, and I don't recall consent being mentioned at all. (In fact, they tried very hard to avoid mentioning that sex might involve people¹) - but it definitely needs some significant updating.

Here's the review they mentioned - they opened a consultation on it on the 21 July. I strongly recommend that anyone with an interest in improving teaching about consent replies to the review (which will be open until the end of November 2011) to make their points. If you have relevant evidence and research papers, especially recent ones, make sure that you include them in your response (and share them here, too, if you like, so that other people can use them too).

Many of the questions in the consultation are asking about case studies from schools, but they explicitly say you don't need to answer every question - many of them are more general and can be answered by people other than PSHE teachers.

I'll post my own response to the consultation once I've written it.

Footnote

¹ Not in a pro-masturbation way (that wasn't mentioned at all), in a "this is an abstract rather than physical activity" way.

Rape prevention: next stop, Ofcom

[trigger warning]

So, following up on the advice from the Department of Culture, Media and Sport to contact Ofcom, I've sent them the following message:

I am writing to ask for more information about two aspects of the Broadcasting Code.

Section 2.4 reads "Programmes must not include material (whether in individual programmes or in programmes taken together) which, taking into account the context, condones or glamorises violent, dangerous or seriously antisocial behaviour and is likely to encourage others to copy such behaviour."

In Section 2.3 a distinction is drawn between "violence" and "sexual violence". Does Section 2.4 also forbid material which condones or glamorises sexually violent behaviour? If it does, would you consider making this explicit in the text the next time that the Code is revised, for the avoidance of doubt. If it does not, could you give me more information on the reasoning behind making this distinction in Section 2.4.

Section 3.1 reads "Material likely to encourage or incite the commission of crime or to lead to disorder must not be included in television or radio services."

Could you please give me more information about how Ofcom applies this section of the Code concerning crimes of sexual violence (rape, sexual assault, etc.) and what research on the psychology of sexual offenders and potential sexual offenders is used to inform Ofcom's policy in this area.

Thank you for your time

I'm going to try to suggest that section 3.1 should include rape-culture-promoting materials to a greater extent than it currently does, because of the encouragement and enabling environment they provide for rapists.

If you have any papers, studies, books, research, etc. that they should be taking into consideration on this, let me know and I'll add them to my next message to them. So far (and many thanks to commenter Glauke at Shakesville for pointing me at these) I have a few of papers and reports by the long-standing researcher of serial rapists, David Lisak, and a lot of references to look up:

• Lisak and Ivan 1995: Deficits in Intimacy and Empathy in Sexually Aggressive Men, J Interpers Violence (subscription required)
• A summary of existing research by Lisak for the New England board of higher education
• Understanding the Predatory Nature of Sexual Violence: Another Lisak summary, with lots of references I haven't had time to look up yet

If you have suggestions for other papers I should read or that Ofcom should be using in its judgements, especially in the area of the effect of rape-culture-supporting material on the behaviour and prevalence of serial rapists, that would be very useful - please leave ideas in comments.

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.

Rape prevention: Culture, media and sport

[trigger warning]

So, the first department to reply to my messages about rape prevention policy is the Department of Culture, Media and Sport, who sent me a reply on Thursday.

(This was actually quite a surprise - I was expecting them to be overwhelmed with all the messages they were getting recently about News International and so take longer to reply)

As I'm now coming to find is usual for government departments, it doesn't quite answer the question I asked.

Thank you for your recent email about media regulation.

I appreciate your concerns on this matter, but must emphasise that under current broadcasting arrangements, responsibility for what is broadcast on television and radio rests with the broadcasters and the organisations that regulate broadcasting - the Office of Communications (Ofcom), the BBC Trust and the Welsh Fourth Channel Authority (S4C) - within the overall framework set by the Communications Act 2003 and the BBC Charter and Agreement.

It is a long-standing principle that the Government does not interfere in programme matters, either on arrangements for scheduling or on content. It is important to maintain the principle of freedom of expression which political interference could undermine.

Ofcom, the BBC Trust and S4C are independent of the Government and responsible for safeguarding the public interest in broadcasting. They set out the rules and guidance with which broadcasters must comply. Within this framework, it is the broadcasters' job to make judgments about what individual programmes should contain and the time at which they are broadcast.

You may like to raise your concerns by writing to Ofcom at Riverside House, 2a Southwark Bridge Road, London SE1 9HA.

For printed media, the Government is likewise committed to the effective self-regulation of the press, and believes that maintaining the principle of freedom of expression is fundamental to our democracy. Therefore the Government does not - and cannot - interfere in what a newspaper or magazine chooses to publish. With this freedom, however, comes great responsibility. Newspapers must, of course, abide by the law, but they also sign up to a Code of Practice, overseen by the independent Press Complaints Commission (PCC). The Editor's Code of Practice sets a benchmark for the standards the press is expected to maintain. More information on the PCC and the Editors' Code of Practice, including details of how to make a complaint about a particular article, can be found on their website at: www.pcc.org.uk.

Whilst at present we do not believe that there is a convincing case for further Government intervention in media regulation, we recognise that for the public to have confidence in a system of self-regulation it must be effective and robust. We therefore continue to monitor the behaviour of the press and their compliance with the Code.

Let's leave aside the difference from the normal definitions of "effective" and "robust" required to apply them to the PCC's "regulation" of the press.

Anyway, my reply:

Thank you for your reply to my earlier message.

I agree that the responsibility for what is broadcast or reported in the press rests with the broadcasters and the media, and that the government is rightly cautious about taking actions which could limit freedom of expression. I will contact Ofcom as you suggest regarding these matters.

However, there seem to be some areas in which the DCMS could take action without interfering with commercial and individual freedom of expression.

1. The government - along with other public bodies such as police forces and local government - are major advertisers and producers of media content in their own right. Are there any relevant guidelines for this content and advertising to ensure that it fits in with government rape prevention strategies?
2. In its role as a funder (directly or indirectly) of individuals or organisations media and arts projects, the government could encourage the recipients of this funding to avoid inaccurate portrayals of rape and sexual assault, that condone or glamourise the crimes. This would not be a restriction on freedom of expression - people wishing to condone or glamourise rape would have many non-governmental funding sources still willing to fund them - but would ensure that public money is spent in the public interest, rather than counter to it. Are there any policies of this nature within the department, or in its agreements with the bodies the department commissions to indirectly fund cultural activities?

Again, thank you for your time, and for your prompt response to my initial query at what must be a busy time for your department.

I'll write the letter to Ofcom soon. Here's the Broadcasting Code, which is the guidance that would apply.

A few relevant pieces seem to be:

• Section 2 - I am concerned that "violence" and "sexual violence" are listed as separate categories in paragraph 2.3, but only the condoning and glamourising of "violent [...] behaviour" is restricted under paragraph 2.4.
• Section 3 bans material "likely to encourage or incite the commission of crime". Can they be convinced that material supporting rape culture counts? - there's plenty of research to suggest it should.

The rest of it seems less relevant at an initial glance - are there any bits I've missed?

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."

Someone in government must be trying to prevent rape, right?

[trigger warning]

As I mentioned earlier, the letter from the Equalities Office regarding the government's rape prevention strategy had several areas I was going to follow up.

I've now sent messages to the various departments I'd earlier identified as potentially relevant, and I'll post again as and when I get replies.

The full text of the letters is below, for reference (long!)

I've gone for writing the letters with the assumption that there is a cross-departmental rape prevention strategy which covers a wide range of areas, informed by the substantial volume of published research on rapists, and treated as a high priority by ministers.¹

If you think I've missed an area of rape prevention that a department should be responsible for - or an entire department - then please let me know and I'll ask them. If you've asked any government departments about rape prevention yourself, could you let me know which ones, and how useful their answer was?

Home Office / Equalities Office

This is a follow-up to their earlier reply.

Thank you for your recent response to my questions. There are a few questions arising from that for which I would like more information.

• You said that "The Home Office is planning a new campaign which will raise awareness of elements of the Sexual Offences Act". Are more details about this planned campaign currently available?
• You said that the Home Office is the lead department regarding rape prevention. Could you tell me which other departments are currently involved in the government's rape prevention strategy?
• With regard to research into the prevalence and taxonomy of perpetrators of rape, you said that the Home Office currently has no plans to commission research in this area. Could you tell me what pieces of existing research in this area the Home Office is using to inform its rape prevention strategies?

Education

I am following up a conversation with a representative of the Home Office on the topic of the prevention of rape. While the Home Office has lead responsibility for this, there seem to be several areas within your department that would be covered by a governmental rape prevention strategy, and I would like to know more about the specific actions being taken by the Department of Education on this issue.

As you will be aware, numerous surveys have found that teenagers are at high risk of sexual assault and rape perpetrated by other teenagers. Could you please tell me what actions the department has taken to ensure that:

1. All children receive appropriate teaching in consent and related issues (not necessarily solely as relates to sexual activity), to reduce the likelihood that they will commit rape or other sexual offences either as a teenager or as an adult, and to reduce the prevalence of common myths about rape among children and young adults.
2. Teenage perpetrators of sexual offences are dealt with as befits the seriousness of the offence, and the urgent need to prevent reoffending.

In addition, could you tell me what research the department uses to inform its policy regarding the prevention of rape and effective education on consent issues, and if applicable what additional research the department has commissioned or intends to commission.

Culture, Media and Sport

I am following up a conversation with a representative of the Home Office on the topic of the prevention of rape. While the Home Office has lead responsibility for this, there seem to be several areas within your department that would be covered by a governmental rape prevention strategy, and I would like to know more about the specific actions being taken by the Department on this issue.

As Lord McNally stated (Hansard HL Deb, 24 May 2011, c1682)

"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 [...] 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."

As the department responsible for many of the areas mentioned in Lord McNally's speech, could you please tell me what steps the department is taking in the following areas:

1. Encouraging private media and creative industries to refrain from producing or distributing creative works which condone, normalise or minimise rape and sexual assault, promote myths about rape, or otherwise work against the government's strategy of rape prevention.
2. Ensuring that publicly-funded media, advertising, and creative works do not condone, normalise or minimise rape and sexual assault, promote myths about rape, or otherwise work against the government's strategy of rape prevention.
3. Encouraging accurate and myth-free reporting of both specific rape and sexual assault trials and the general prevalence of rape and sexual assault, and discouraging the sensationalising of this reporting.

Defence

I am following up a conversation with a representative of the Home Office on the topic of the prevention of rape. While the Home Office has lead responsibility for this, there seem to be several areas within your department that would be covered by a governmental rape prevention strategy, and I would like to know more about the specific actions being taken by the Ministry of Defence on this issue.

Could you please tell me what steps the Ministry is taking in the following areas:

1. Given the widespread use of rape as a weapon of war, what is being done to protect civilian populations in areas in which UK forces are involved?
2. Studies such as McWhorter 2009 [1] show that a significant proportion of military personnel have themselves committed rape. What steps does the MoD take to detect these people to reject them during recruitment and to protect fellow soldiers and civilians from them if they remain undetected at the recruitment stage?

Additionally, could you tell me if the MoD has any plans to commission research similar to McWhorter's, and what existing research in this area it already uses.

[1] Reports of Rape Reperpetration by Newly Enlisted Male Navy Personnel by Stephanie K. McWhorter, et al., published in Violence and Victims, Vol, 24, No. 2, 2009. The study found that around 13% of male new recruits to the US Navy had attempted or committed rape, many on multiple occasions.

Justice

I am following up a conversation with a representative of the Home Office on the topic of the prevention of rape. While the Home Office has lead responsibility for this, there seem to be several areas within your department that would be covered by a governmental rape prevention strategy, and I would like to know more about the specific actions being taken by the Ministry of Justice on this issue.

While, obviously, the Ministry has a major role to play in the conviction, imprisonment and possible rehabilitation of rapists and other sex offenders, to reduce the number of future offences that they commit, I am also interested in what steps the Ministry is taking in the following areas:

1. Ensuring that prisoner education and rehabilitation includes programs intended to reduce sexual offending, including those prisoners who were not arrested for a sexual offence.
2. 2) Preventing rape and sexual assault within the prison environment.
3. 3) Working to rehabilitate those sexual offenders whose detected offences do not merit a custodial sentence so that they do not commit more serious sexual offences later in life.

I would also be interested to know what research on the behaviour and taxonomy of rapists and other serious sexual offenders the Ministry uses to inform its policies in these areas.

Footnotes

¹ Also, a pony.

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."

Rape prevention and the government

[trigger warning]

Inspired by the recent exchange between Baroness Gale and Lord McNally to find out what the government is up to regarding rape prevention, I've sent this letter off to the Equalities Office.

Dear Government Equalities Office,

The response by the government to rape has been highlighted in the media again recently. On 24 May in the Lords (Hansard HL Deb, 24 May 2011, c1682) Baroness Gale asked Lord McNally

"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?"

Lord McNally replied

"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 [...] 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."

The exchange raises a very important point that is often overlooked: while there has been significant progress made in improving the justice system's response to rape in investigation and prosecution, and in providing more support for the victims of sexual violence, the sheer prevalence of the crime, and the vast number of people willing and able to commit rape, means that such strategies, no matter how effective, cannot alone solve the problem.

Could you please tell me:

• 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?

Thank you

Yours faithfully

[cim]

Other departments that I might expect¹ to be involved in rape prevention:

• Education: obviously good education on consent and respect in general, and in sexual behaviour more specifically, would be beneficial. But how to get around the attitudes normally associated with sex education?
• Culture, Media and Sport: as Lord McNally hinted at, advertising and "pop culture" play a large role in reinforcing rape culture. Most of this is privately-produced, so there are limits to the government's powers - but I certainly don't want my taxes going to promote rape apologism and to portray rape or sexual assault as normal sexual behaviour.
• Defence: Rape as a weapon of war is very common. There's a role here in both policing conflict areas that we're involved in, and in making sure that our own forces aren't committing rape.
• Justice: Beyond the obvious "locking up rapists so they don't do it again", prevention of prison rape and attempting rehabilitation of convicted rapists should be on their agenda. Education of people who were caught for something other than rape would also be beneficial, given the correlation between rape and other violent crimes

Those seem like the obvious ones - I may have missed some. It will be interesting to see what reply I get.

¹ "Expect" as in "this should", not "this is", probably

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.

Journalists downplay rape prevalence in DR Congo

[trigger warning]

Several news sources are reporting on this study on rape prevalence in the Democratic Republic of Congo. The headlines are all along the lines of "48 rapes per hour" or "1100 rapes a day". Here's the BBC article.

My first thought on reading the headline? "That's really low." Somewhere between study, press release and news article, they've lost some really important details.

The "shocking" figure they quote is - while absolutely terrible - only a fraction of the real problem.

The UK is a similar size to the DRC, in terms of population (62 million and 67 million respectively). Going from British Crime Survey data, my low bound for the number of rapes annually in the UK is around 200,000. It's a low estimate because the BCS data doesn't cover children or people aged 60 or over, but it gives a rough estimate.

The reporting claims the figure for the DRC to be around 400,000. Worse, even accounting for the slightly higher population, but not much worse.

"UK: 20 rapes every hour, study finds" would be an equally accurate headline (and perhaps expressing it like that might shock a few people into action).

The figure for the DRC is considerably higher - not just twice as bad as the UK

1. The study, according to the article, only covers women and girls aged 15-49. Like the BCS, that misses out a lot of people (and, indeed, the authors of the study acknowledge this)
2. The figure of just over 400,000 is not how many rapes occurred, but how many women were raped in the last 12 months. Like the BCS, it doesn't measure multiple victimisation. Given that the lifetime estimate is only four times higher, there must be a lot of multiple victimisation going on.
3. They also note a figure of over 3 million women experiencing "intimate partner sexual violence", though the abstract doesn't say whether this is lifetime or annual. It's not quite clear how this figure relates to the initial count, but from the Guardian reporting it seems to be a separate figure, and includes yet more rapes. Not at all surprising - but imagine how much better the UK's figures would look if they only counted stranger rapes; now think about what that implies for the DRC figures.
4. Unlike the BCS, the figures this study were based on don't appear to have had the same effort put into avoiding reporting stigma (Dr Peterman explicitly mentions this as a cause of underestimation).

Add all that together and this study is still a massive underestimate.

It's also a big increase on previous estimates - which says a lot about those estimates.

That rate is significantly higher than the previous estimate of 16,000 rapes reported in one year by the UN.

If anyone at the UN actually believed that figure - again, only about twice the number reported in the UK - to be remotely accurate, they would have been congratulating the DRC on its successful strategies against sexual violence. Clearly, no-one actually did - the UN staff are not naive! But again, it's measuring something completely different - and the DRC government points out that the difference between the two figures is due to reporting and collection, not a change in the number of actual rapes.

But I don't think the journalists get just how high rape prevalence is in countries like the UK, or they wouldn't print things like (BBC):

The highest numbers of rapes were found in war-ravaged North Kivu, where an average of 67 women out of 1,000 have been raped at least once.

...which, back of envelope, makes North Kivu noticeably safer than the UK. Or it could be - as the authors of the study state - a severe underestimate.

If UK journalists - and the public as a whole - were actually aware how many rapes took place in their own country, then they might not have to have the obvious underestimates here pointed out to them - underestimates that make the DRC's problems with rape look nowhere near as bad as they actually are.

In an effort to get the reporting to be more accurate, here's the message I sent to BBC Complaints - I also sent a similar one to the Guardian regarding their article (to reader@guardian.co.uk). I didn't even get into the extra 3 million, since I wanted to keep the initial complaint short. I'll mention it if they get back to me.

Dear Editors,

Your article reported that "A study by US scientists has concluded that an average of 48 women and girls are raped every hour in the Democratic Republic of Congo.". The study actually concludes something far worse than this - the figure of 400,000 a year from which the hourly rate is derived is the number of women and girls raped at least once in the last twelve months. Dividing this into hours forgets that many will be raped far more than just once. Furthermore it ignores the statements made - and reported on - by Dr Amber Peterman that the estimate from their study is likely to be a significant underestimate.

This becomes obvious when you consider the comparable rate for the UK. The British Crime Survey finds that around 70,000 people between the ages of 16 and 59 have been raped at least once in the last twelve months. Studies on multiple victimisation suggest that many rape victims are raped more than once, for an estimate of around 200,000 rapes each year in the UK - or around 20 every hour.

Similarly, your article gives a lifetime victimisation rate for the worst area - North Kivu - of 67 in 1,000 - a rate that is actually somewhat less bad than the equivalent rate for women in the UK.

I'm not suggesting that rape in the UK is as prevalent as it is in the DRC - though "UK: 20 rapes every hour, studies show" is a horrifying statistic in its own right - but by doing a simple division your headline and article actually hides the true scale of the problem in the DRC.

Please correct the article - especially the headline and lede paragraph - to better reflect the original study.

Yours faithfully

[me]

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