Back in the 1980s I read a brilliant article by Conor Cruise O’Brien, arguing that the then much-ridiculed words “I’m not a racist, but…” or “I hate apartheid, but…” actually indicated that an opinion consisting of important, mainstream good sense might well follow. I’m tempted to begin this piece by saying: I’m not a rapist, but…
Last night I watched part 1 of BBC2’s programme The Verdict, a kind of “reality” TV show consisting of a fictional rape trial played out by actors (playing witnesses and defendants) and lawyers, in front of a jury of celebs including her off Brooky, him out of So Solid, her off Eastenders, Stan bloody Collymore and Honor Blackman, plus Michael Portillo and “Lord” Archer. I quite liked the show: it seems to me a http://www.gooakley.com/ pretty serious attempt to show what a trial is like, and how a jury works, and in the process make us realise what complex problems any trial, but especially a rape trial, gives rise to. I’m a bit miffed the writers felt they had to “celeb up” the fictional trial by making it about a fictional footballer and by having the alleged victim’s best friend sell details to the tabloids. But otherwise I’m happy with what seems to me a reasonably realistic version of what happens in Crown Courts.
It’s also a fascinating insight both into how level-headed an average jury is (and yes, I do think this is an average jury, with a pretty mixed range of intelligence, information and social awareness between them – watch the show and make up your own mind) and into jury dynamics. It is entirely unsurprising that the jury should be as unconvinced as they are by the prosecution case so far, given that the complainant admits having lied to the police, since her friend has been paid for tipping off the papers about the alleged rape, and given that they’ve heard no scientific evidence at all about any injuries to her. I’d be worried if they were clear at this stage they they wanted to convict. As for dynamics: my prediction is that this jury will convict. I think Stan Collymore is a brilliantly unwitting prosecution counsel – a kind of Lee J. Cobb in reverse – whose apparent bias in favour of the defendant may well, by the end, make the prosecution case seem eminently reasonable.
What’s really got me writing, though, is
Of course he’s right that the low rate of convictions for rape, compared to the statistics on reported rape and studies on the true incidence of rape, is a real problem. I, too, wish more rapes were prosecuted and more convictions obtained. I’d feel better about it. So would Ray Ban outlet most of us. But look at the way he ends his third paragraph, and begins his fourth:
“Jeffrey Archer, Honour Blackman, Patsy Palmer and a slew of refugees from Liverpool FC and Brookside Close have to stand in judgement over a rape case that is performed before them by real defence and prosecution QCs, and presided over by a real judge. The rape victim and the accused are played by actors.
As we watch a rape victim being picked to pieces by a lawyer who jeers at her sexual history and jabs that her friend behaved “provocatively” …”
The emphasis, obviously, is mine.
However much we agree about this problem – and I might well agree with some of Johann Hari’s proposals for change – the one attitude I find difficult to accept is that which assumes that all those accused of rape are guilty because they’ve been accused, and regardless of the evidence. That is real prejudice, and Johann Hari seems dangerously close to it in his article. It’s wrong, it shows a thin commitment to freedom, and it’s dangerous because it may lead people with good motivations to go badly morally astray, and seek convictions in rape cases at all costs, and by any means.
Look at the way he describes the defence barrister “jeering” at the complainant’s sexual history. I saw no jeering; I think it shows a Ray Ban outlet Prezzi prejudiced, partisan opposition to the defence to describe it in that way. His view seems to be that her lie to the police is irrelevant. I suppose it is, if you think juries should not weigh a witness’s credibility, but should feel obliged to believe her on principle.
Johann Hari’s actual proposals for change are quite sensible: he says we should allow expert evidence to explain why a genuine rape victim might well behave in ways that seem counter to common sense but that traditionally are thought indicative of unreliability. I agree with that, so long as the defence is allowed to bring expert evidence on the issue, too, if it wants. Some of those who propose this think only the prosecution should have the right to do so – a position that in my view would breach the right to a fair hearing. He also suggests a “ban” on questioning about the complainant’s (he says “the victim’s”) sexual history. Well, further restrictions, I might agree with, though a total ban so obviously risks miscarriages of justice that I can’t go with him that far. Finally, he proposes screening juries to weed out people who think rape is a woman’s fault. I’m afraid I absolutely disagree with him on this.
The democratic system involves allowing rapists, racists, satanists, child abusers, porn addicts, heroin dealers, football hooligans and wife beaters to help decide who should govern the country. I believe in it, and I believe in the jury system, too, because most voters and most jurors are reassuringly ordinary. Where would it end, if we tested jurors to make sure they held only attitudes approved by The Independent? It never would end, because the categories of prejudice aren’t closed. Presumably Johann Hari’s jury testing would would involve weeding out the belief that black men are inclined to rape white women – or does he not think racism is a potential problem in the criminal justice system? It would also have to weed out the prejudiced belief that women who allege they have been raped are always telling the truth.
This whole thing reminds me of some of my fellow students at bar school, who proudly said they’d never prosecute crime at all, or defend in a rape case. In that moral universe, the whole system of the state is biased (often against the working class or black people, according to this world view) and determined to lock people up on the flimsiest evidence… except in rape cases when apparently all the power of the state lines up with the defence.
I’m sorry, but we need a much more grown-up attitude than this. One that recognises that, while the low risk of a rapist’s being convicted is a real problem, and one we should do something about, ditching the presumption of innocence is not a sound basis on which to do so.
Oh, and an afterthought: Johann Hari blames the CPS for not having prosecuted Ian Huntley for rape in 1998. Of course he knows nothing about the evidence that led the CPS to that decision, and relies simply on hindsight. Easy, since what we now know about Huntley makes us think he almost certainly did commit rape before. But he quite wrongly – insultingly, in fact, to prosecutors who may be as committed to bringing rapists to justice as he is and who have almost certainly done much more to achieve that goal than he ever will – ignores the possibility that the CPS’s judgment about the evidence, which obviously was based on considerations other than hindsight, may have been correct.
Leave a comment