Monday 9 February 2015

How Not To Be Silly About the New DPP Guidance on Rape Investigation

Oh my, did the DPP’s new guidelines about rape investigations cause some ruckus. It’s easy to misread the guidance. In the Context section a casual glance will see the line "insincere compliments and/or kindness shown by the suspect” and indeed "any earlier provision by the suspect of any gifts, alcohol or drugs“ and shudder: what? I can’t flatter a girl anymore? Bring her flowers? We all have to be honest? I can’t cook her a meal or surprise her with a trip to the ballet? Now read carefully. This is preceded by the condition "and, especially for younger and/or vulnerable victims”.

”Vulnerable” is a code-word in the law: it means things like “doddering”, “simple”, “low-IQ”, “retarded”, “Downs Syndrome”, “child in sheltered accommodation" and a bunch of other stuff like that. Not a hard-faced late-20’s career girl who has recently sacked a couple of her staff or delayed payment on suppliers' bills. She’s not “younger” and certainly not “vulnerable”.

Remember that when looking at English, though not French or American, law, you have to bear in mind the intention of the legislature when framing the law. Sometimes it takes the House of Lords to divine it, but divine it we must.

The guidance itself says:
Victims of rape are often selected and targeted by offenders because of ease of access and opportunity - current partner, family, friend, someone who is vulnerable through mental health/ learning/physical difficulties, someone who sells sex, someone who is isolated or in an institution, has poor communication skills, is young, in a current or past relationship with the offender, or is compromised through drink/drugs. This list is not exhaustive. Victims may be chosen for grooming because of their vulnerabilities. The suspect/offender may hope that these vulnerabilities will limit belief in the complainant by authority and a court.
That doesn’t sound as if it’s about hard-faced late-20’s career girls earning top-decile salaries and dining out on the pretext of dating.

It’s clearly not, nor could it be, the intention of the law to make a rapist out of every husband (family member) who had sex with his SAHM wife (complainant dependent on the suspect financially) after a couple of glasses of wine (under the influence of drink). Nor is it the intention of the law to make a rapist out of a player who spits some Game on that same hard-faced 28-year old with a top-decile salary, and gets consensual, if slightly Merlot-tasting, sex as a result.

Look at the context. This guidance came out after Rotherham, Newcastle  Halifax, and heaven knows how many other places, where gangs of mostly ethnic men sexually exploited vulnerable mostly white, always under-aged girls. Then there is the low background rate of abuse by doctors, social workers, elderly carers and the like, some of which is sexual, though more is financial. This legislation is officialdom sending a warning to itself. It’s aimed at the exploiters in social services, the Police, the caring professions and others, and warning them that they won’t be able to hide behind their “status” and insinuations about the instability of their victims.

However, the journos and misandrists don’t really understand how British law and institutions work, so we had a lot of silly remarks about men needing a legal consent form and recorded evidence of ongoing sobriety and consent. Men are not supposed to have sex with women who are incapably drunk. Tipsy, yes, actually drunk, no. (Drunk women are best left alone: nobody held her down and poured the booze down her throat. She got that way, she can take the consequences.) A woman has always been able to change her mind at any point from the meet-cute to the short strokes, and the man has always had to stop and figure out whether she’s having an actual change of mind or a temporary hesitation. Female consent has always been temporary, contingent, revocable and generally unreliable.

Why the silly remarks if the DPP advice is simply stating what we accept is good behaviour anyway? Here’s a clue: it’s not the men who are worried. It’s the normal straight women. A lot of them can’t have sex unless they have had a couple of drinks or a puff or snort of something illegal. Sober, they are more or less incapable of arousal, or of acting on their arousal. The DPP guidance seems to say that if she has to have a couple of drinks to loosen up, it’s actually rape, because she wouldn’t do it sober. It says: have more than one drink, and one of your frenemies will cock-block you for the rest of the night with “Go away, she’s had too much to drink”. It says that the sex she has with her Beta provider whom she likes but doesn’t find arousing when sober, is actually rape, which is a nice thing to say about her marriage.

However, that too is a misinterpretation. It can’t be the intention of the UK legislature to make it impossible for women to have sex. So “under the influence” must, in this context, mean something north of “a couple of glasses of wine”. In practice, the legislators are not going to specify an amount of blood-alcohol that disqualifies a woman from sex. They will stick to some vague remark that could mean “was in the same room as an open bottle of wine” or “was falling over even when leaning against the wall”, and leave it to the jury to decide. (At least one activist group will adopt the line “too drunk to drive, too drunk to consent”.) All this does is shift the he-said, she-said from consent to sobriety, and that’s not a lot of progress. For regular people with jobs and functional lives, these new guidelines will make very little difference: rape investigations will be just as difficult, inconclusive and intrusive as they are now. The DPP is expecting an extra 300 or so cases, which doesn't sound like they are after, nor expect to be after, every husband or lad on the town in the country.

Finally, the idea that a woman would be ongoingly enthusiastically aroused if the man checked in on her consent every couple of minutes is laughable, and the law knows it. She wants to get lost in the moment as much as he does. The guidance says that investigators should ask if the man checked that consent was continuing, and since it cannot be the intention of the DPP to pour cold water over every steamy moment of passion, what counts as checking for consent must be broadly interpreted. Because female consent is temporary, contingent, revocable and generally unreliable, YES has always meant "Until I say NO", just as NO sometimes means "give me five minutes and try again, and don't take it personally."

Surely there will be misandrist groups who will interpret this guidance in line with their agendas. I can hear council for the prosecution asking the complainant if she had “been drinking”, as if one drink was all it took for a woman to lose her judgement. I can hear the divorce solicitors adding ‘marital rape’ to ‘child abuse’ in their armoury of nuisance tactics. All that will happen and more. And sensible judges and juries will shrug it off.

Of course the numerous unaccountable bureaucracies - social services, employers, newspapers, television, social media, universities, schools and local government - will add this to their list of legislation to be abused when needed and ignored otherwise. The media will print whatever will sell, or get clicks. The bureaucracies will use these guidelines to further their internal political agendas, and individual managers will use them to get rid of people they don’t want around. Thus has it always been and always will be.

But no, you're not going to need a signed consent form.

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