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Assault vs Sexual Assault - a civilised debate

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CB27
1372294.  Wed Jan 20, 2021 9:31 am Reply with quote

You automatically added "mugging" as an excuse for why someone might attack a man equally. I'm talking about assault.

I was actually talking about physical assault, although verbal assault should also be considered, but that's not what was in the discussion.

Also, you talk of the laws regarding assault, but I'm talking of experience and attitudes. There are many things that are illegal, but people still do them, that's why we have crime.

Looking at back at some of the previous comments in the discussion, and why there was a certain reaction, I think the issue is you're saying that assault and treatment of assault is legally bound regardless of sex, which is not what everyone else is talking about.

 
Celebaelin
1372321.  Wed Jan 20, 2021 12:15 pm Reply with quote

CB27 wrote:
You automatically added "mugging" as an excuse for why someone might attack a man equally. I'm talking about assault.

Automatically? It is in no way an excuse it is a word choice and that is wrong because...? Whilst not a legal term its meaning is not unclear and is entirely consistent with the general notion of assault. If your intention is to stand on the precept that Sexual Assault and Rape are special cases because the statistics on reported crime indicate a preponderance of female victims then in what way does that not in and of itself display a sexist bias?

Quote:
Males experienced higher victimization rates than females for all types of violent crime except rape/sexual assault.

https://www.bjs.gov/index.cfm?ty=tp&tid=955

Quote:
In 2018/19, 671 homicides took place; 64% of victims were male and 36% were female.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/938360/statistics-on-women-and-the-criminal-justice-system-2019.pdf

I can find no figures for non-sexual violent assaults but the above intimates that there would be a weighting towards male victims. Is that the fault of the male victims? Should the possibility of mitigating circumstance for the attackers be removed for those crimes too?

CB27 wrote:
I was actually talking about physical assault, although verbal assault should also be considered, but that's not what was in the discussion.

So you agree with me that all forms of assault as they are legally termed (in ascending order of severity of sentence Common Assault, Actual Bodily Harm, Aggravated Assault, Unlawful Wounding, Grievous Bodily Harm, Sexual Assault and Rape) should be considered? 'Verbal assault' would at worst be Threatening Behaviour (Section 4 of the Public Order Act 1986) I think and is not an actual assault.

CB27 wrote:
Also, you talk of the laws regarding assault, but I'm talking of experience and attitudes.

What point are you trying to make? I've cited instances of my experience during the course of this debate and coherent communication of attitudes is the entire purpose of this thread.

CB27 wrote:
There are many things that are illegal, but people still do them, that's why we have crime.

Not exactly - actually it's why we have punishments.

CB27 wrote:
Looking at back at some of the previous comments in the discussion, and why there was a certain reaction, I think the issue is you're saying that assault and treatment of assault is legally bound regardless of sex,

I don't know what you mean by 'legally bound' but my point is certainly that for laws to be fair they must be consistent. The argument presented has been that mitigation of the offence is considered for factors such as attire (provocative in some way), alcohol consumption on the part of the victim (implying ill-considered behaviour through impaired judgement) and physical location (deliberately confrontational in some manner). My assertion is that these mitigating factors may, at the court's discretion, be applied in cases of assault of all severities. They are brought up by defence lawyers because it is their job to do so and Rape is not, and should not be, an exception in this regard. It is also important to not that the court does not have to accept these suggestions of mitigating circumstance - only to consider them. The offence of Rape is a part of a group of similar offences against the person; in fact it is potentially the most serious of those offences excluding murder and some rarer crimes e.g. torture (Criminal Justice Act 1988 (6)); all carry a maximum sentence of life imprisonment.

CB27 wrote:
...which is not what everyone else is talking about.

What is everyone else talking about then and where are they talking about it? It's certainly not on this thread.

Referring to some unspecified current trend in feminist didactics occurring elsewhere does not inform or address this issue and provides no tangible reason why it is appropriate to treat different forms of assault as disparate in principle when brought to court.


Last edited by Celebaelin on Thu Jan 21, 2021 1:24 am; edited 1 time in total

 
CB27
1372342.  Wed Jan 20, 2021 2:07 pm Reply with quote

Celebaelin wrote:
... If your intention is to stand on the precept that Sexual Assault and Rape are special cases...

NO, I meant assault that didn't have mugging (theft or whichever word needs to be used) as a driving force behind the assualt. I suppose you can include in that gang related assaults as well. I am talking about assaulting someone for the sole purpose of assaulting them.

Celebaelin wrote:
CB27 wrote:
There are many things that are illegal, but people still do them, that's why we have crime.

Not exactly - actually it's why we have punishments.

Whatever, that's semantics, crimes exist because people break a law, punishments exist because crimes are committed, the end point is still the same.

Celebaelin wrote:
I don't know what you mean by 'legally bound' but my point is certainly that for laws to be fair they must be consistent.

Slightly bad wording on my part, I noticed it after I posted, but couldn't work out how to say it. The issue for is that I'm not arguing that most laws are not fair or consistent in the UK (I'm sure someone else might find some examples), the argument is about how victims are treated differently, and that either laws need to be introduced to mitigate this or guidelines drawn up for police and courts.

Quoting official crime figures also doesn't help, because if you look at crime figures, then look at surveys of women who admit they have been either raped, sexually assaulted, or physically assaulted, the numbers are very different. I would say part of this is the attitude of the police and courts which put people off from reporting crime.

A shocking similar example is from France last weekend, where people started talking about incest (in France it's usually taken more to mean forced or coerced assaults on related minors rather than the English understanding of the word). In less than 3 days more than 80,000 signed up to say they'd suffered from incest, which was a shocking number to everyone, compared to official crime stats.

 
Jenny
1372349.  Wed Jan 20, 2021 2:42 pm Reply with quote

Cele I think one of the issues you're overlooking is that you are putting sexual assault and physical assault on the same basis, and I don't think they are.

That is not to denigrate or discount the consequences of physical assault, which can indeed be worse than the consequences of sexual assault (though not always). The problem is that there is never a question about whether somebody gave consent to be physically assaulted. Their word that no, they didn't want the other guy to give them a good kicking is generally held to be good enough.

If a woman is raped, whether by acquaintance or stranger, and she had no serious physical injuries that might well be caused by strenuous resistance (and is a reason why a woman who is physically weaker than her assailant might not resist, for fear of serious physical harm) then there is always a question of whether she consented, or even invited the sexual assault. There is, in fact, the kind of victim blaming that you consistently overlook. She can say until she's blue in the face that she neither invited nor wanted this, but there will still be those who say "well she shouldn't have... (insert reason)".

So should a woman who is undergoing rape resist until she has physical damage to 'prove' that she didn't invite it or consent?

 
Celebaelin
1372353.  Wed Jan 20, 2021 3:12 pm Reply with quote

CB27 wrote:
NO, I meant assault that didn't have mugging (theft or whichever word needs to be used) as a driving force behind the assualt.

Okey dokey - I get what you mean. I find that difficult to answer because I don't understand that sort of motiveless crime so I can't speculate on the probability that it will occur. That's quite a specific example and I would imagine those incidents to be quite unusual without any previous social interaction.

CB27 wrote:
Whatever, that's semantics, crimes exist because people break a law, punishments exist because crimes are committed, the end point is still the same.

No, crimes exist because people make a law, crimes are committed because people break a law and punishments exist to deter people from breaking laws.

That's not semantics its an understanding of the origin of laws and legal process. Anything can be illegal if the state deems it so and laws are not always fair, equitable or even sensible (beards were illegal in Enver Hoxha's Albania and given the nature of the regime the punishments, while not set out that I can find, were likely extreme - forced labour, execution, something of that sort).

CB27 wrote:
...the argument is about how victims are treated differently, and that either laws need to be introduced to mitigate this or guidelines drawn up for police and courts.

I'm pretty sure such guidelines exist and breaches of same could and would be raised. I think you need to be specific as regards how the differences in treatment manifest themselves.

I assume you don't mean the matter of mitigating circumstance again since my point in all this is that appeals for mitigating circumstance apply across the board and ergo are not discriminatory. Incidentally because of the possibility of life imprisonment for Rape raising mitigating circumstances where there is any room for the suggestion that they might exist is practically mandatory in Rape cases.

CB27 wrote:
Quoting official crime figures also doesn't help, because if you look at crime figures, then look at surveys of women who admit they have been either raped, sexually assaulted, or physically assaulted, the numbers are very different.

Just as they are for men as has already been mentioned.

CB27 wrote:
I would say part of this is the attitude of the police and courts which put people off from reporting crime.

I'd say you're right, at least in part. Another part is an element of social stigma attached to being involved in a crime even as a victim and the feeling that the whole process is just too much of an ordeal to make pursuing it worthwhile. That would be amplified in the example of incest which you raise - such behaviour within a family is assuredly not 'normal' but just how unusual it is for such things to occur we don't as yet know. This is not because lawyers and lawmakers are lounging around with thumbs up their arses; or at least not entirely so. It is partially the element of not wishing to publicise family matters that makes these crimes perpetrated by parents on their own children so rarely mentioned but there is also the fact that a child's experience at home forms the basis of what, at least initially, they come to consider normal.

This does not really have much bearing on the subject of the debate however.


Last edited by Celebaelin on Wed Jan 20, 2021 7:47 pm; edited 1 time in total

 
CB27
1372357.  Wed Jan 20, 2021 3:50 pm Reply with quote

Celebaelin wrote:
CB27 wrote:
NO, I meant assault that didn't have mugging (theft or whichever word needs to be used) as a driving force behind the assualt.

Okey dokey - I get what you mean. I find that difficult to answer because I don't understand that sort of motiveless crime so I can't speculate on the probability that it will occur. That's quite a specific example and I would imagine those incidents to be quite unusual without any previous social interaction.

That's the whole point, it's not unusual at all, certainly not in heavily populated areas.

 
Celebaelin
1372362.  Wed Jan 20, 2021 5:21 pm Reply with quote

I don't really see that you've made a point but I'm mystified by turf wars and the like so I still can't answer your question about extent of risk.

 
Celebaelin
1372363.  Wed Jan 20, 2021 5:27 pm Reply with quote

Jenny wrote:
...you are putting sexual assault and physical assault on the same basis

Not the same but of a similar nature, yes; physical abuse inflicted by one party on another contrary to the will of the victim.

Jenny wrote:
...and I don't think they are.

I do think that they are broadly comparable however as implied by the above clarification; the parallels are precisely what we've been debating - how can you think that I've overlooked that? My opinion is that an assault causing e.g. a broken leg is somewhat comparable with a rape (one is the offence of GBH the other the more serious crime of Rape).

Jenny wrote:
That is not to denigrate or discount the consequences of physical assault, which can indeed be worse than the consequences of sexual assault (though not always). The problem is that there is never a question about whether somebody gave consent to be physically assaulted. Their word that no, they didn't want the other guy to give them a good kicking is generally held to be good enough.

With inevitable rare exceptions in reported crime but as you say generally yes.

Jenny wrote:
There is, in fact, the kind of victim blaming that you consistently overlook.

I was, in fact, waiting for you to give your interpretation of that particular aspect of Sexual Assault and Rape on which we have both been silent so far; you have now done so, or started to at least, by giving your opinion that

Jenny wrote:
She can say until she's blue in the face that she neither invited nor wanted this, but there will still be those who say "well she shouldn't have... (insert reason)".

And worse - the 'she says that now' defence which insiduously suggests that a woman's prerogative to change her mind does not apply retroactively to consent to physical congress.

Jenny wrote:
So should a woman who is undergoing rape resist until she has physical damage to 'prove' that she didn't invite it or consent?

I suspect that in the absence of evidence that a weapon was used to serious effect a story could still be concocted about 'sex games' or the like. It may however not be leant much credence depending on other factors (e.g. no known history of sado-masochistic activity). I've not read 50 Shades of Grey or its sequels so I don't know what acts they describe but sadly their popularity with women in particular somewhat undermines the ridicule often applied to this kind of defence. In case I need to make it clear I do not regard that as a good thing and neither I imagine do the courts.

While we're on the subject of proof of guilt there is also the defence of malicious false accusation. I don't have much to say about that at this juncture but I'd hate to be accused of overlooking something again.

These are cliches certainly but as you noted earlier through one of your links these are some of the tools available to defence lawyers as an alternative to not presenting any sort of argument at all to accompany a not guilty plea. It cannot be enough that an accusation of Rape merely reach the courts for a conviction to be delivered - guilt must be proven to the satisfaction of a jury through due process because the system is designed to favour protection of the innocent from unjust imprisonment rather than punishment of the guilty at any cost irrespective of those wrongly convicted as a result. Even so wrongful convictions do still happen alongside mistaken acquittals and examples of insufficient evidence.

A paucity of evidence is not a good place from which to start a criminal prosecution but in Rape cases that can go with the territory. We must conclude that successfully prosecuting a Rape is not easy I suppose simply because a lot of consensual sex does happen out there and determining when it definitively did not happen is problematic. Should a woman resist rape so that she has physical signs of an assault? If she wants to see justice done on the rapist then probably, yes, but that must of course be tempered by weighing the risk of provoking further and/or excessive harm to her own person. It's a hell of a decision to have to make but incidentally it also applies broadly in claims of self-defence where an over-zealous response to an attack can land the victim in the dock while the court deliberates on what constitutes 'reasonable force' in that particular instance. The alternative is to suffer a beating with no control over the ultimate extent of damage inflicted.

The question to my mind is 'would the account of a man be treated with the same degree of skepticism' and I believe the answer is yes. If not then that is certainly an injustice that needs to be addressed. The fact that the occasions on which the rape of a man is brought to court are very rare is not ultimately the point as regards unbiased treatment.

I still maintain that rape is properly handled as a specific instance of assault and that certain common principles can be, should be and are applied to the legal handling of all such cases. In support of any contrary suggestion legislation must be drafted that satisfies the condition of not itself being inherently sexist and that would be, was, is and it appears that it will continue to be... shall we say 'challenging'.

 
Jenny
1372469.  Thu Jan 21, 2021 4:02 pm Reply with quote

Celebaelin wrote:
The question to my mind is 'would the account of a man be treated with the same degree of skepticism' and I believe the answer is yes.


Frankly, I think your statement is absurd. Please note this Washington Post article, based on DOJ figures.

WaPo wrote:
The consequences of sexual assault fall overwhelmingly on the victims.

About 0.7 percent of rapes and attempted rapes end with a felony conviction for the perpetrator, according to an estimate based on the best of the imperfect measures available.

On the other side of the incident, at least 89 percent of victims report some level of distress, including high rates of physical injury, post-traumatic stress disorder, depression, anxiety and substance abuse....

...Less than a third of rape incidents are reported to the police, according to an analysis by the nonprofit advocacy group RAINN (the Rape, Abuse and Incest National Network), which combined Justice Department National Crime Victimization Surveys from 2010 to 2014 with other federal data to track what happened to perpetrators.

Just 5.7 percent of incidents end in arrest, 0.7 percent result in a felony conviction and 0.6 percent result in incarceration, RAINN found. The organizationís website notes these figures are approximations, not scientific estimates, because their analysis ďcombines data from studies with different methodologies.Ē


For your statement to be true, the overwhelming majority of rape reports would have to be false, and yet almost nine out of ten of the women reporting rape would have to have serious emotional and physical consequences.

Note that I am not claiming that all accusations are true, but my contention is that it is overwhelmingly likely, in view of the consequences to those reporting rape, that nine out of ten of them are. And the consequences to women of simply reporting a rape and having it dragged through the courts, inevitable as that is, add such an additional layer of pain that fewer than a third of them are even reported to the police.

 
barbados
1372476.  Thu Jan 21, 2021 4:34 pm Reply with quote

Jenny wrote:


If a woman is raped, whether by acquaintance or stranger, and she had no serious physical injuries that might well be caused by strenuous resistance (and is a reason why a woman who is physically weaker than her assailant might not resist, for fear of serious physical harm) then there is always a question of whether she consented, or even invited the sexual assault. There is, in fact, the kind of victim blaming that you consistently overlook. She can say until she's blue in the face that she neither invited nor wanted this, but there will still be those who say "well she shouldn't have... (insert reason)".


I am pretty sure that the police take the crime of rape very seriously indeed, and I doubt there are many police officers, both in the UK and the US who would suggest that the victim had it coming. There are probably some, because there are rotten eggs in every group.
That would leave two other groups that may be of the opinion "well she shouldn't have.... They are MOTP - and quite frankly their opinion doesn't count for squat, the only members of that group who have a relevant opinion are those serving on the jury, and they should start from the position that the accused did not carry out the act. The only other people that could offer the opinion "well she shouldn't..." are the lawyers, the defence have one job - to provide doubt that any offence took place, and the prosecution - who would not usually offer that opinion, what with having the job of securing a prosecution.
So where do you suggest this inappropriate "victim blaming" occurs?

 
Celebaelin
1372482.  Thu Jan 21, 2021 5:53 pm Reply with quote

Jenny wrote:
Celebaelin wrote:
The question to my mind is 'would the account of a man be treated with the same degree of skepticism' and I believe the answer is yes.

Frankly, I think your statement is absurd.

Those sections from The Washington Post have no bearing whatsoever on what you say or provide as a quote.

The above quote and the current area of dispute is not about numbers it is about the equality of treatment in the trial of comparable individual cases. Specifically if the victim is a man is he subjected to the same level and nature of examination as a woman would be?

As I previously wrote my belief* is that in those cases where a man alleges he has been raped the defence council will be just as rigorous in his attempts to see his client acquitted of the crime as said council would be if the victim were a woman.

This has nothing at all to do with the number of cases or their outcome and everything to do with the attempts of defence council to place sufficient doubt in the minds of the jury and offer a plea of mitigation in the event of a guilty verdict.

After the initial stages in this thread where my suggestion was that the perception of assault should not divided on a sex basis this topic has become increasingly about the handing of rape. OK, that's a related issue and in spite of the fact that it carries with it an inherent sex bias because of the nature of the crime and its reporting@ which brings the focus around to a picture of (bad) men physically oppressing women rather than including all forms of assault where a picture of (bad) men physically oppressing men emerges@ such that overall

Quote:
Males maintain higher risk of personal crime than females.
In 2019/20, 3.9% of males were victim to personal crime, compared to 3.4% of
females.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/938360/statistics-on-women-and-the-criminal-justice-system-2019.pdf

But again this is not my main thrust it is a by nature of an aside.

My current assertion is that trials for rape are both prosecuted and defended with equal vigour for either sex and if numbers indicate anything it is that for reasons of lack of incidence, social stigma, the tacit implication that it is a societal norm or a stoic acceptance of the lack of available proof men seek to bring about massively fewer prosecutions for Rape than women NOT that those prosecutions are handled any differently when they reach the courts. Neither of us have much in the way of material to back our opinions on this (are such male Rape trials as do reach the courts generally held in camera?) but I did find this:

Quote:
The treatment of male rape complainants by the criminal justice system has received very little attention in the legal literature in this country. This article begins to fill this gap by analysing the cross-examination of complainants in a small number of cases involving allegations of male rape or sexual assault. In particular, it identifies several common themes in defence questioning of complainants. The article concludes that there appear to be significant similarities in the treatment of male and female rape complainants and that the experiences of male complainants should be taken into account when considering reforms to the criminal justice process.

Male rape in the courtroom: Issues and concerns
Criminal law review (London, England) March 2001

If you think itís necessary to bring up a new line of reasoning of some variety then obviously youíre free to do so but donít try and inaccurately belittle or dismiss the argument Iím making by linking your new direction to a quote from me which was not, in fact, either i) a statement at all other than a statement of belief (a belief that has been supported by a peer reviewed published article btw) or ii) of any relevance to your new direction. Iím still not sure what it is you think I wrote but I urge you not to so lightly bring these terminological inexactitudes and errors of comprehension into this debate as I am then obliged to waste my time refuting them.

* and therefore not a statement btw

@ women are undeniably far more likely to report being raped than men are and most people, myself included, would say that this is at least in part because women are much more likely to be raped than men; I do not contest that although some would as we have seen in linked articles in this thread.

Now that really is all I have time for until at least Monday afternoon and possibly beyond so if you post a withering reply and I don't respond don't get frustrated it merely means that I'm unable to get back to you.

 
CB27
1372524.  Fri Jan 22, 2021 7:36 am Reply with quote

barbados wrote:
...The only other people that could offer the opinion "well she shouldn't..." are the lawyers, the defence have one job - to provide doubt that any offence took place...

And there lies the issue.

Granted, my experience of courts (outside eviction hearings as part a previous job) is very limited to two jury services and three witness appearances (I seem to have picked up a habit of knowing people that are part of a trial...).

From that limited experience I've seen victims accused of either making things up or getting details wrong, but the only time I've seen a someone blaming a victim was when there was an assault and the victim was blamed for starting the fight. I don't recall seeing victims blamed for being the victims by simply wearing certain clothes - though I'm sure there are cases where this exists to prove the general rule.

We still live in a society where lawyers know they can still appeal to a sufficient number of people to victim blame women in assault cases simply on what they wore, or where they walked. I think if asked a general hypothetical question most people might say they won't blame the victim, but when faced directly with a lawyer who is able to paint the victim as less than innocent it seems the number of people suddenly willing to agree goes up.

This is why I wrote earlier that this is about attitudes as much as it is about the law.

 
crissdee
1372527.  Fri Jan 22, 2021 7:50 am Reply with quote

I have stayed out of this up till now, because I didn't really have a strong opinion either way (and still don't tbh) but I would like to say that, when I did my jury service, one of the cases I sat on was of a relatively minor sexual assault (a "groping" in a secluded alleyway iirc) and at no time during the hearing was any doubt whatsoever cast on the young lady in question's story. The only point we discussed was to what extent the man in question should be punished. I don't even recall the defence seeking to claim that the offence did not take place, rather that it was a misguided attempt at seduction.

He was found guilty and sent for psychiatric evaluation iirc.

 
Brock
1372529.  Fri Jan 22, 2021 7:53 am Reply with quote

CB27 wrote:

We still live in a society where lawyers know they can still appeal to a sufficient number of people to victim blame women in assault cases simply on what they wore, or where they walked.


How do they know that? It's a criminal offence for jurors to discuss what happened in the deliberation room.

 
crissdee
1372530.  Fri Jan 22, 2021 7:56 am Reply with quote

I trust my comment above was sufficiently vague to avoid such a problem. If not, I shall edit it as necessary.

 

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