If you’re a woman and you’re raped in the UK, chances are your rapist will get away with it. Nationally, on average only 5.6% of reported rapes result in convictions. While more rape survivors are reporting their rapes than in previous decades, far fewer rapists are successfully prosecuted.
This morning, this state of affairs reached an all new low. A gang rape case in Manchester was dropped when it was revealed that the 24 year old complainant had previously talked online about having group sex fantasies. Judge Robert Brown ruled that “her credibility was shot to pieces” and ordered the jury to return a verdict of not guilty.
The story doesn’t contain much detail, but it seems to me that this is what happened: a 24 year old woman talked to Olatunji Owolabi, an internet friend, about her sexual fantasies, during which she admitted that she had fantasised about group sex. She speculated that if she found herself in a group sex situation “her morals would go out of the window” (her words). She arranged to visit Owolabi with the intention of hooking up with him. Without her consent or knowledge, he arranged a group of mates to come round. When she arrived at his house, they raped her. The judge ruled that it was not rape because of its similarity to her expressed fantasies.
Penny Red eloquently explains exactly why this is total bullshit:
Let’s say, just for example, that my boyfriend is a little bit of a masochist. Let’s say the idea of being smacked, spanked and hurt in a sexual context excites him; that we’ve discussed his fantasies and even acted some of them out in bed. Does that, then, mean that I’m entitled to beat him up in the kitchen whenever he annoys me? Can I punch him, cut him, smash his head into the cooker, and know that a jury will acquit me? Does the fact that he has kinky fantasies make it okay for me to physically abuse him in any context, with or without his consent?No, of course it doesn’t make it okay, and because he’s a man and it’s not a rape case, we all understand that that kind of response is never even close to okay.
Desire is not consent. Consent is consent. You and I know this, because we fantasise about situations which would constitute traumatic assault or torture if they were actually carried out without our consent by people we didn’t know or like. Thinking about something, fantasising about something, getting turned on by the idea of it, is not consent. Only consent is consent. Someone who enjoys thinking about sex, and having sex at certain times and with certain people, may not want to enjoy it right this second, right now, with this particular person. That person forcing them to endure it anyway is rape.
This doesn’t change when the activity is group sex. It doesn’t change when the activity is spanking or punching or kidnap. I am amazed that someone could have the education, intelligence and experience necessary to become a judge without this simple truth being perfectly obvious. Unless, I suppose, they were a woman-hating bigot.
–
Meredith Chivers, a 36-year-old psychology professor at Queen’s University, Ontario, and editor of a highly regarded journal of sexual research, has been making this point for the last ten years. According to a 2008 article in the Journal of Sex Research, 1 in 10 women enjoy pleasurable fantasies of sexual rape or assault at least once a month. Chivers told the NY Times,
“I walk a fine line, politically and personally, talking frankly about this subject. I would never, never want to deliver the message to anyone that they have the right to take away a woman’s autonomy over her body. I hammer home with my students, ‘Arousal is not consent.’ ”
We spoke, then, about the way sexual fantasies strip away the prospect of repercussions, of physical or psychological harm, and allow for unencumbered excitement, about the way they offer, in this sense, a pure glimpse into desire, without meaning — especially in the case of sexual assault — that the actual experiences are wanted.
“It’s the wish to be beyond will, beyond thought,” Chivers said about rape fantasies. “To be all in the midbrain.”
Jezebel magazine followed up the NY Times article with an interesting discussion of the issues. One writer, Anna, asked:
Can we [...] cease to use the phrase “rape fantasy”? The underlying definition of the word “rape” implies not only a lack of power but lack of choice, and for those who fantasize about being dominated, to me [...] there is a lot of power and choice inherent in that fantasy: you get to pick the time, the place, the person.
The other, Megan, replied:
Actual rape isn’t about losing control or about giving up control or, one might say, if one were more versed in the language of the BDSM scene, topping from the bottom. Rape fantasies are, as you say, fantasies about submitting to a supposed aggressor with full consent and knowledge that you can be the one ending it. It’s a fantasy of domination even as it’s a fantasy about what rape really is. But [...] I don’t have a problem with the term: unlike one of the commenters on the article, I have no illusions that either of the men that sexually assaulted me did so because they thought I “wanted” it. They might have chosen to justify their actions to themselves or others in that way afterwards, but there was no mistaking what was going on either time.
Rape and sexual assault victims understand very well the difference between fantasy and reality. You and I understand it as well, because our fantasies would usually be violent crimes if they were non-consensually carried out. We understand that fantasies do not diminish our autonomy: that enjoying our own imagined version of an event does not automatically give anyone else permission to forcibly inflict a similar event on us at any time. Unfortunately, that understanding is not yet as widespread as it should be.
Sexual research is still a male-dominated field, and clearly not one that Judge Brown is particularly familiar with. Chivers’ analysis might sound like common sense to us, but we have long a way to go before its truth results in cultural change. Until our judges and prosecutors are educated to understand that arousal is not consent, rapes will continue to go unchallenged and unpunished.
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Oh my GOD this type of thing makes me so angry! I'd really, really like to torture some people, sometimes. Ugh. I don't even have words.
Eek!
In moments like that I like recalling the old case I heard of when a guys was convicted of raping a women who was a prostitute.
Because no means no, no matter what you do for living, fun etc.
How they can make laws like the one about extreme photography and fail to protect women from abuse, rape etc?
Thanks Pandora for the post, it's good to know what's going on even if it's not so rosy at all.
What a horrible injustice. The judge in this case should be required to read what you've written here.
A friend of mine is a barrister, and he's been talking about this case. His view is that the problem here is not judges, or prosecutors, but juries. Now, I doubt anyone reading this blog will think that having fantasies of rape is the same as automatically giving consent to actually being raped. But if you asked a cross-section of the population, I suspect that you would find at least a quarter of people who thought (wrongly) that those chat transcripts demonstrated that the victim was "asking for it". Translate that to a jury trial, and it becomes impossible to get the 10-2 minimum required for a majority verdict. That seems to be what has happened – once this evidence was entered into the case, the CPS decided that they wouldn't get a conviction, and so it was no longer worth continuing the case. The judge then directed the jury to return a "Not Guilty" verdict, because some verdict has to be returned.
This is clearly an injustice – but my friend says that it's hard to see a solution that doesn't involve either removing juries from rape cases, or shifting the burden of proof in all rape cases from the prosecution to the defence. Both of those run counter to what are widely seen as basic principles of the British legal system, and so such moves would face serious opposition.
Hey,
I only know what I read in the BBC article, but my understanding was that it wasn't the judge who halted the trial, but the prosecution, who "formally offered no evidence". So the judge directed the jury to find the accused innocent, and commented "her credibility was shot to pieces" for good measure.
Not really contradicting you, just observing that this is less a case of one ignorant judge, but the prosecutor AND the judge. That's a courtroom you'd love to walk into as a complainant, right? It's completely vile.
This is shocking. I think it's important to point out that the prosecutor is to blame more than the judge. It was his decision to offer no evidence because he felt after the computer evidence emerged that he couldn't make a case against the defendant. One hopes that his bosses at the CPS will take note. This is incompetence on a criminally negligent scale. The judge didn't really have much choice; he could hardly direct the jury to consider convicting someone on a charge for which no evidence had been offered.
Napoleon – I would have more sympathy for that view if the prosecutor had not said:
""It is right to say that there is material in the chatlogs from the complainant, who is prepared to entertain ideas of group sex with strangers, where to use her words 'her morals go out of the window'.
"This material does paint a wholly different light as far as this case is concerned."
and the judge had not said:
"This case depended on the complainant's credibility.
"Not to put too fine a point on it, her credibility was shot to pieces." (both quotations from the BBC article, linked in my comment above.)
These may have been quoted out of context, of course, but they do not sound to me like the comments of men who are informed about sexual consent and frustrated by the conservatism of juries.
Very sad day when this is what the courts deliver by way of justice, very sad indeed.
Napoleon Craig makes a good point (three of us were obviously posting simultaneously – and we probably all are again now!). I still think the CPS/prosecution is at fault though. It's a bit different from deciding there is no chance of securing a conviction in a case with insufficient evidence, because the case obviously had already passed that test to have been brought at all. In the first case it is the police who are at fault for not providing the CPS with the means to do their job. In the second, the police have done their bit and it the job of the CPS to convince the jury. The CPS shouldn't bring cases they can't win to start with, but they shouldn't back out of cases once they start them just because they are going to have difficulty making the jury see sense.
One also wonders what kind of a prosecution lawyer hadn't thought to dig around a bit for this kind of thing himself and be a bit better prepared.
Miss B, I don't wish to defend the comments of the judge and the prosecutor (at least not as reported – it is possible that a lot of qualification has been omitted). I would certainly have been happier if the judge had said "Regrettably, her credibility in the eyes of some of the jury would be irreparably damaged by this evidence." But in the end, however enlightened judges and prosecutors might be (and I concede that sometimes they aren't very), there would almost certainly be enough ignorant people on the jury to make conviction impossible.
Jon, I assume that when this case was initiated by the CPS, either this evidence had not been turned up, or they were arguing that it should not be admitted in court. One point that I've seen made is that, once this evidence was judged admissible, the victim would almost certainly have been cross-examined on it. It could be argued that it was kinder to her not to put her through such an experience if the was only a slim chance of getting a conviction.
Thank you so much for writing this, Pandora.
I've been unable to find any words for describing how appalled and sickened I am by this injustice. I'm very grateful to you and Penny Red for managing to say some of the things I want to.
These are views that need to be heard; we live in a culture whose attitude towards women is absolutely vile and sick. And people think *we're* the perverts. :-/
This raises another issue about privacy and what one puts online.
If the victim had not expressed her fantasy online then the trial may have had a very different outcome.
Be very careful online, the internet is FOREVER.
This kind of thing sickens me beyond being able to express it. I have served on the kind of jury which held idiots who believed that women asked to be raped, so I know there is a lot of ignorance out there. But that doesn't excuse the actions of the prosecutor and judge — their behavior guaranteed the case was dead in the water, without even trying.
This was so wrong on so many levels.
The only thing I can think is how come her lawyer hadn't seen the chatlogs already? It seems pretty clear he was surprised to learn of them and on the spur of the moment he made a bad decision.
As for masochism, how long before someone is acquitted because he raped someone to cure them of masochism? Same way that men in some countries consider rape to be a cure for lesbianism.
Napoleon is right, in practical terms, that (given the way these things tend to play out) it's rather unlikely that this case would have resulted in a conviction. The defence would have had a field day with the woman's online fantasies, and portrayed her as a witness having no credibility.
That's not the point though. From what I understand, the prosecution withdrew the case, and the judge agreed, on the basis that there was no longer a credible case. On what basis did they make this determination? Did they consult the woman? Did they give her the opportunity to advance arguments like the ones put so powerfully by Pandora here?
Obviously, none of us know the facts, but at first sight it's outrageous that the judge and prosecutors (really, it was the prosecutors, although the judge certainly didn't help) took this unilateral decision. If the woman, even given these "revelations", was prepared to take the stand and tell her story, she should have been allowed to do so, and the CPS should have brought forward expert witnesses to make these very points. Simply abandoning the case seems indefensible. Pandora is quite right to be angry about it.
That said, the issue of gaining convictions in circumstances like this is unlikely ever to go away, I'm afraid – at least until the day when mind-reading devices are implanted in everyone's brains. And I doubt either of us would be thrilled at that prospect.
"One also wonders what kind of a prosecution lawyer hadn't thought to dig around a bit for this kind of thing himself and be a bit better prepared."
The barrister who leads the case for the prosecution in a crown court does not "dig around". He is briefed by the CPS, often at the last minute, and can only use what he has been given.
The barrister for the defence likewise is briefed by the solicitors for the defence, who in many cases will have done a much more thorough job of selecting and preparing their evidence than the police and the CPS.
This type a "ambush" by the defence on a pooly prepared prosecution is the reason for the failure of many such cases.
I don't agree with every single thing that everyone has said, but gosh, the standard of debate here is much higher than on the messageboards of the national newspapers.
Please do not think that I am criticizing this post, I thought that this was a well constructed and informative post on a very important subject. But the comments have provided a lot of useful information and have been what opened my eyes to the "nuts and bolts" of how this whole fiasco worked.
Although it is too late to help in this case, it appears that the fault lies with the CPS and the police, for not investigating the case thoroughly and not briefing the prosecution properly. In an ideal world pressure should be put on the police and CPS to improve their performance. I wonder if, in the real world, this will happen?
This was a terrible example of how the law can be a total ass. It is time that we all start learning from incidences like this and putting pressure on authorities, that are failing us, to get their thumbs from up their arses and earn the tax money that they take from the population, that they are supposed to be protecting.
Prefectdt
We have the opposite situation here in the U.S.. Regardless of what the law says, a man accused of rape or child molestation is very much viewed as guilty until he proves beyond any doubt that he's innocent. We've learned since the introduction of DNA evidence, that a hell of a lot of men have spent a lot of time in prison because they were wrongfully accused and convicted of rape. Until people learn to think with their brains instead of their emotions this will continue to be a problem, one way or the other for the legal system.
'The barrister who leads the case for the prosecution in a crown court does not "dig around". He is briefed by the CPS, often at the last minute, and can only use what he has been given.'
Sure. Careless of me to make it ad hominem. I guess we're agreed though that which particular employee(s) of the CPS was/were at fault doesn't excuse the lack of preparation on the part of the organisation.
Thank you also to the last, anon poster for making a very important point. The law and legal process should NEVER assume, de jure or de facto, that the defendant is guilty. We've seen how awful this is and how it ruins lives before a word is spoken in court in too many cases of malicious, ill-informed or plain wrong accusation – child molestation being an obvious example.
The process here is to my mind basically right – I would not change the presumption, get rid of the jury or make any other such fundamental change – it just requires everyone involved (in and out of court) to do their jobs properly in order to function.
I am going to say something unpleasant now but it has to be said.
Doesn't anyone think that maybe she avoided letting her counsel find out about the chatlogs because she was embarrassed and hoped that the defendants hadn't logged it?
We can argue about why she would do such a thing, whether it's her fault etc etc but the important thing is that if you're being represented by a lawyer in court tell them what they need to know. A surprised lawyer is a bad thing to have on your side.
Michael, if that is the case, I assume your conclusion would be that the prosecution should have worked harder to reassure her that being honest about her chats would not prejudice her case?
After all, given the fact that the judge and the prosecutor commented that her "credibility was shot to pieces", it would appear that if she did conceal information, she made exactly the right decision. And both the judge's and the prosecutor's decision have made damn sure that any other women faced with such a decision will err on the side of caution.
You surely wouldn't be suggesting that she is to blame for the case failing?
Michael –
I think you do not quite understand how a prosecution case works.
What happens is this – a complainant (victim) makes a complaint to the police that a crime haas been committed against them. The police take statements, gather forensic evidence, interview witnesses etc, and then hand all the material to the CPS, who decide if there is a viable case for a criminal prosecution.
Once the CPS adopt a case the complainant has no further influence over the conduct of the case – they simply become a witness. Counsel for the Prosecution is not the complainant's Counsel, he is employed by the CPS, and does not usually get the opportunity to talk to the complainant, except during cross-examination in court, unlike Counsel for the Defence, who is able to liase with and take instruction from the defendant at any time during the case.
So you see she would have had no opportunity to either allow or prevent the Counsel for Defence finding out about the chatlogs. You may of course say that she should have told the police about them in the first place, but it is reasonable to assume that she was traumatised at this stage in the proceedings and maybe not thinking as clearly as the lawyers in a courtroom months after the event.
Thank you Pandora for this post and your twitter posts linking to the Guardian.
I know some have touched on this but it still bothers me – the comments made by the judge "her credibility was shot to pieces" –
I have found this from the Manchester Evening News
It looks for all the world, as Ms Bias said, that she concealed the evidence of the web chats from the Police / CPS – and it is for that reason the prosecution concluded "her credibility was shot to pieces".
I do hope that lessons are learnt from this both for men and women.
"Now, I doubt anyone reading this blog will think that having fantasies of rape is the same as automatically giving consent to actually being raped. But if you asked a cross-section of the population, I suspect that you would find at least a quarter of people who thought (wrongly) that those chat transcripts demonstrated that the victim was "asking for it"."
This quote in an early comment by Napoleon is the real crux of the problem. There is a big educational problem with the public at large, which has (I suspect) made enormous strides in the last fifty years, but which has an enormous way still to go. Ultimately, you cannot expect the courts or the legal system to be more enlightened than society at large. It is even possible (probable?) that the defendant was himself was genuinely in error on this point (though one would hope that ANYONE would use their common sense when she reacted badly, as she must have done, some people are very lacking in it). And in that case, is the correct response for him punishment in the accepted sense, or education?
Ernest
It looks for all the world, as Ms Bias said, that she concealed the evidence of the web chats from the Police / CPS
I'm going to bow out of this now, as I don't want to get too ranty on Pandora's blog, but just before I go, I have to point out that that really, really isn't what I said!
I'm not even sure what "concealed" would mean in this case. How are victims of rape supposed to guess how many details about their sexual past will be used against them?
I have to point out that that really, really isn't what I said!
I am so sorry and whole heartedly apologise, I do sand corrected – I miss read what you said – I missed the if.
I do think that, and without wishing to defend the guys – that prior contact with someone who later goes onto rape you is relevant. If the girl had this web chat with someone not involved in the attack then you are correct, in that, it would be in no way relevant to the case. If the girl had made a full disclosure of the prior web chats then the CPS might have been better prepared for it in court and the case might have gone all the way to secure convictions of the guys.
Once again please accept my apologies for the miss quote.
If Pandora could please edit "as Ms Bias said, " out of my last comment I would be very grateful.
No worries, Charles – thank you for the gentlemanly apology!
I agree with Napoleon's assessment regarding the difficulty of getting a majority jury verdict. If the defence had ever gotten the chat transcript in front of the jury, let alone been allowed to cross-examine the victim, any jury, no matter how well instructed by the judge (and in this case it appears that such instruction would not have been particularly good), would have hung.
Juries are sometimes just dumb, and there are lots of examples, from the ongoing "CSI effect" in the US, where juries are increasingly demanding onerous and unnecessary forensic evidence, to the gang rape mistrial in Australia, where two jurors ignored their instructions and conducted their own independent investigations. This stupidity is often due to the fact that many juries end up being drawn from the people deemed by society as too unimportant to be excused from jury duty – often working class people with more prejudices than their better educated fellow citizens. Remember that if you're a doctor, lawyer, politician, or teacher (to name but a few professions) you're likely to be either automatically exempted or granted an excuse because you are needed much more urgently in your day job.
So although this case was particularly badly handled by the CPS, and the judge's comments were most definitely out of line, I'm not sure that the end result could have been much better under the circumstances.
Hi from Australia:
As a man, i find this totally disgusting, that a pack of animals could escape a long jail term for the rape of this young women, it shouldn't matter nor should her fantasy even come into question, when this has happened to her, this rape by all accounts was premedatated, and the animals responsable deserve the maximum jail time, along with the judge who basiclly threw out her case, one could almost suspect that the judge himself has a fantasy of raping a women, just lets hope that what goes around comes around.
James B
Australia
A friend of mine served in the Horse Guards. Here is a picture to show you the kind of uniform he wore: http://tinyurl.com/68h5n4h
(I do not mean to suggest that the man in the picture is in any way implicated in what is now recounted.)
After becoming a serving Horse Guard, my friend soon discovered that the unform made him an object of desire for some males and for some females. The money he made, pandering to individual fantasies, exceeeded his army pay.
One very lucrative scene involved the simulation of gang rape. Every year, for several years running, my friend would be contacted by a rich American visitor. This man, and his wife, had an apartment in one of those posh parts of London. What my friend, and his two fellow soldiers were asked to do was:
1) Crash into the couple's apartment, wearing their uniforms.
2) Beat up and tie the husband to a chair.
3) Simulate rape with the wife—ignoring her cries to her husband.
4) Share drinks and sandwiches with the happy couple afterwards.
At no time did the woman give verbal consent to the soldiers who were having sex with her. Their presumption was that the husband was conveying his wife's consent, when making the arrangement. Of course, they had no way of verifiying that that was the case; and a jury which went only on what the woman was saying during the scene would most probably have found the soldiers guilty of rape.
That is the hazard of our pristine kind of love. Group situations are especially dangerous. I feel very sorry for the woman who was raped; but I would feel sorry for young men jailed for rape, in that situation.
Regads
Jim
"chances are your rapist will get away with it. Nationally, on average only 5.6% of reported rapes result in convictions."
??
What percentage of alleged rapists would you like to see comvicted?
Perikles: an appropriate one, defined by evidence and rational consideration.
False accusations happen: I’ve had one made against me which was taken to the police, so I know that for a fact. [1]
However, given the percentage of real rape victims who never report, for many reasons, the idea that of those who *do* anything even remotely approaching 95% are lying fails Occam’s Razor.
Therefore, there is something wrong with the system. This particular case happens to provide evidence of what is wrong within the policing, prosecution and public discourse of rape, on a systemic level throughout the UK. It starts from the basic assumption of puritan values combined with congenital masculine entitlement combined with the myth that ‘no-one can know for sure’. This is crap. Precisely one person can know for sure.
[1] The accusation occurred because I refused to sleep with an underage girl whose business model was seducing adult men and then blackmailing them for money with threats of rape. When I refused the honey-trap, she simply went ahead with the accusation anyway.