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Men Behaving Badly

Periodically there is an outbreak of concern over the low conviction rate in Scotland for
the crime of rape. Investigations are conducted and consultations held into changes in the
law and procedure governing rape cases with a view to improving the success rate. The
assumption (not always unspoken) is that men who are in fact guilty are escaping
conviction because of defects in the law that impair a complainers prospects of seeing
her assailant convicted.
t one time! it was commonly asserted that the absence of women "udges was an
important factor. This meant that rape trials were conducted before male "udges who
were inevitably! albeit subconsciously! imbued with traditional male attitudes that
affected! against the interests of the complainer! their conduct of the proceedings. There
are now! of course! women who grace the #igh $ourt bench% and there will be lots more
of them in the not too distant future.
&ut the gender of the presiding "udge was always a red herring. fter all! it is the "ury!
not the "udge! who must decide whether the accused did indeed rape the complainer.
'hen I (ualified as an advocate! the defence could still make peremptory challenges to
"urors (ie ob"ect to the person balloted! without having to disclose any reason). In rape
trials it was conventional wisdom that these challenges (initially five! later reduced to
three) should be used in rape cases to ob"ect to males! with a view to securing the highest
possible proportion of women on the "ury. )specially where the defence was consent! it
was regarded as being very much in the accuseds interests to have the issue decided
predominantly by women.
'hat never seems to be considered! when concern is e*pressed over the very low
percentage of convictions in rape complaints in Scotland! is the possibility that the
outcome of the trials was in fact correct + that ac(uittal was the proper verdict + and that
the problem really resides in the $rown ,ffices raising rape indictments in cases where
there is (rightly) no hope of obtaining a guilty verdict.
In the old days it was possible to run a defence in rape cases along the lines of -it wisnae
me./ I dont know whether the complainer was raped or not but! if she was! it wasnt me
who did it. #owever! the advent of 01 profiling has rendered this stance obsolete.
2ape cases today turn on the issue of consent. It is entirely right that the law should have
been changed in recent years to secure that what matters is whether the complainer
consented on the occasion out of which the charge arises and that her having consented to
se*ual intercourse (with the now accused or with other men) on previous occasions is
irrelevant and is not a matter that can be e*plored in evidence. nd it is also entirely
right that corroboration of the fact that the complainer did not consent can be found! inter
alia! in the fact that she was observed to be in a distressed condition a short time after the
se*ual encounter.
&ut it is strongly arguable that the $rown ,ffice is proceeding with far too many cases in
which the evidence of lack of consent is non3e*istent or is far too weak to hold out any
realistic prospect of conviction.
'hat matters is whether the complainer consented to se*ual intercourse. If she did! but
that consent was obtained through deceit or false representations by the accused! then the
charge should be one of fraud! not rape. If she consented! but would not have done so
had her inhibitions not been lowered by alcohol or drugs% or if she consented! but later
regrets it because of the boorish! selfish or dismissive manner in which the accused
treated her after the event! then this is not rape. Indeed it is not a crime at all. 4ale
selfishness! boorishness and bad manners! before! during or after the act of se*ual
intercourse! are not criminal under the law of Scotland. 1or should they be! however
much one may reprehend such conduct.
1o matter how the law relating to rape or the evidential and procedural rules applicable
thereto may be tinkered with! "uries will not convict unless they are satisfied beyond
reasonable doubt that the complainer did not consent. This is precisely the sort of issue
that "uries are best suited to deciding. &efore we take seriously any complaint that there
are too few rape convictions in Scotland! some evidence should be produced that "uries
are systematically getting their decisions on the issue wrong. 5ntil then! the $rown
,ffice and the Scottish 6overnment 7ustice 0epartment would be better occupied in
ensuring that the $rown ,ffices procedures for identifying rape! and for differentiating
between rape and se*ual bad manners! are fit for purpose.
Professor 2obert &lack 8$