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Assault vs Sexual Assault - a civilised debate

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Brock
1372532.  Fri Jan 22, 2021 8:08 am Reply with quote

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


I assume that's OK, but I really don't know.

The 2015 revision of the Juries Act 1974 says: “It is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before a court, or to solicit or obtain such information.”

(Taken from this article, which is worth reading.)

It's one big difference between the UK and the US, where jurors are free to talk about their deliberations after the trial.

 
dr.bob
1372541.  Fri Jan 22, 2021 9:46 am Reply with quote

Celebaelin wrote:
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.


There's an important difference that Jenny has raised that seems to have been overlooked in the subsequent discussion.

Celebaelin wrote:
Jenny wrote:
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.


This is the key, and massively important, difference between physical assault and sexual assault.

As Jenny points out, the idea that a physical assault would be the result of a consensual encounter is so highly unlikely that most people wouldn't even give it a second thought. I won't try and argue that 100% of physical assaults are non-consensual because there are always a few weird outliers, but generally if someone sees a person who's been the victim of a physical assault, their default assumption will be that it was a non-consensual experience for the victim.

By contrast, sexual encounters happen very widely and the vast majority of them (thankfully) are consensual.

There's been a lot of talk upthread about women going to nightclubs and dressing in a certain way. It can't be denied that a certain proportion (not all) of those women will head out in the evening with the express intention of finding someone to have consensual sex with. No doubt a certain proportion (not all) of those women will choose to dress in a certain way because they know that it will make it easier for them to find someone to have consensual sex with. If that's what they want to do with their lives, then all power to them. I'm not going to suggest that women should lock themselves away in a nunnery and never partake in physical pleasure.

In the psychological study of rape, there has emerged something called the "Illinois Rape Myth Acceptance scale" for gauging how much people agree with certain rape myths. These myths have been distilled down into a few statements ranging from victim blaming ("she asked for it", "she lied") to excusing the attacker ("it wasn’t really rape", "he didn’t mean to").

These kinds of myths have never been used to explain physical assault in the same way. Nobody has tried to excuse a physical assault by claiming that men have a biological need to punch someone in the face that should be accounted for. Nobody has ever claimed that the victim of a physical assault had clearly gone to a nightclub with the express intention of finding someone to beat them up.

These myths and attitudes mean that victims of rape and sexual assault will be treated very differently by the criminal justice system than victims of physical assault. Sadly it also means that many victims of rape and sexual assault are put off going through the criminal justice system resulting in the majority of cases going unreported.

 
barbados
1372546.  Fri Jan 22, 2021 10:07 am Reply with quote

CB27 wrote:
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.

That is the problem when you look at such an emotive subject as one of the examples.
Cel tried to steer it away from the subject of rape against assault, but it kept ending up back there and however hard he tried.
The truth of the matter is when you question a victim of a rape, it will always sound like the questions are suggesting the victim was at fault, where the purpose of the question is to cast doubt over whether the accused carried out the act. What should really be done is for the victim to be coached in such a way that those questions are not an accusation, but designed to cast doubt over the accused’s guilt, and if they were not asked then that would be a miscarriage of justice - which is a issue bigger than the one the victim has - because if the defence does not ask those particular questions an innocent person could go to jail for something they had no part of

 
Jenny
1372565.  Fri Jan 22, 2021 12:13 pm Reply with quote

post 1372541 Thank you dr.bob - that sums it up admirably.

barbados wrote:
Cel tried to steer it away from the subject of rape against assault, but it kept ending up back there and however hard he tried.


Barb - of course it ends up there, for exactly the reasons dr.bob lays out in his post, which in my opinion Celebaelin has essentially glossed over in all his posts.

 
barbados
1372570.  Fri Jan 22, 2021 12:27 pm Reply with quote

There is a valid reason why the consent is brought up.
It has nothing to do with victim blaming, and everything to do with protecting the accused from false allegations, which is (and hast to be) the way the law works.

 
Jenny
1372635.  Sat Jan 23, 2021 4:22 pm Reply with quote

Protecting the innocent by letting off most of the guilty?

Or do you seriously believe that 99.3% of accusations are false? I'll remind you of the section I posted from the Washington Post article:

Quote:
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 organization’s website notes these figures are approximations, not scientific estimates, because their analysis “combines data from studies with different methodologies.”


And on that basis you would also seem to be regarding as unimportant the consequences reported by 89% of victims. Though of course you don't regard them as victims because you don't believe them.

 
barbados
1372636.  Sat Jan 23, 2021 4:48 pm Reply with quote

Jenny wrote:
Protecting the innocent by letting off most of the guilty?



Do you suggest we change the burden of proof in rape cases then?
And if we do it for rape, why not shoplifting? or murder?

 
Brock
1372637.  Sat Jan 23, 2021 4:52 pm Reply with quote

Jenny wrote:

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


The consequences of all crimes fall on the victims, don't they? Isn't that the definition of "victim"?

Quote:
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.


If true, that means that criminal penalties for rape and attempted rape have almost no deterrent effect. What's the point of having a criminal penalty for something if it doesn't prevent the crime in the first place?

Quote:
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....


What do the other 11 per cent report?

 
CB27
1372740.  Sun Jan 24, 2021 4:43 pm Reply with quote

Brock wrote:
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.

You're really asking this?

You might as well ask how a lawyer knows how to appeal to juries on any case of any type of crime, it's got nothing to do with knowing what jurors discuss and all to do with success and failure in court rooms. It's all to do with understanding what appeals to people in court rooms.

 
Brock
1372745.  Sun Jan 24, 2021 5:21 pm Reply with quote

CB27 wrote:
Brock wrote:
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.

You're really asking this?


Yes, obviously.

Quote:
You might as well ask how a lawyer knows how to appeal to juries on any case of any type of crime


That's precisely what I am asking. How do they know? They can't possibly know who's going to be on the jury for that particular case, or anything about any of them.

Quote:
it's got nothing to do with knowing what jurors discuss and all to do with success and failure in court rooms. It's all to do with understanding what appeals to people in court rooms.


And how do they know that? It's got to be guesswork, because they're not allowed to ask any jury how they came to their decision.

The jury system in this country is completely opaque. I imagine there are some juries that do their duty very diligently and address the facts of the case and nothing else. I imagine there are others whose decision is based entirely on prejudice, and everything in between. There may well be juries that decide by tossing a coin.

It is completely impossible to know, or to assume that any one jury will behave like any other jury, or to do any research on the matter. It's all speculation.

I've been a defendant in a criminal trial. Both sides put their cases to the jury, but neither of them had a clue what the result would be. I thought it was the simplest case imaginable and yet the jury couldn't come to a decision, even when they were allowed to come to a majority verdict. The judge had to dismiss them. I was lucky that it didn't end up with a retrial.

God knows what they were talking about in there. They kept coming back with notes for the judge, asking this, that and the other. It wasn't a very nice situation to be in at all. I asked my lawyer what he thought the delay was due to and he didn't have a clue. They can't know. They just have to accept the verdict, whatever it is.

I think the system is in dire need of reform. For a while I thought I was in danger of being convicted for a crime I hadn't committed, simply because the jury was incompetent. Luckily that didn't happen.

 
crissdee
1372775.  Mon Jan 25, 2021 6:54 am Reply with quote

Obviously, no one can know for sure what any given jury might do, but after practicing law for a few years and representing people in court a few dozen times, surely a barrister would start to get a general idea of what tends to appeal to juries and what tends to put them off. Far from an exact science I grant you, but enough for someone to work with.

 
franticllama
1372777.  Mon Jan 25, 2021 7:35 am Reply with quote

Also, mock juries and experimental research on their decision making is a thing. Here's a starter link to a number of different articles. A few minutes on google brought up an awful lot more.

 
dr.bob
1372786.  Mon Jan 25, 2021 9:19 am Reply with quote

barbados wrote:
There is a valid reason why the consent is brought up.
It has nothing to do with victim blaming, and everything to do with protecting the accused from false allegations, which is (and hast to be) the way the law works.


In this post and your previous one, you seem to be specifically referring to cross-examination of the victim by defence lawyers during court proceedings. I think you're probably right that this specific behaviour could arguably be labelled as something other than "victim blaming".

I'm not sure what point you're trying to make, though. Victim blaming occurs at every level of the justice system, from the reaction of the police to a report of an attack deciding whether to investigate properly and refer it on to the CPS, to the reaction of CPS lawyers in deciding whether the case is worth taking to court, to the reaction of jurors in deciding whether what the attacker did "really counts as rape".

It can also occur within the social circle of the victim, if both the victim and attacker are known to the same people.

There are lots of different circumstances in which victim blaming occurs in response to rape or sexual assault. I'm not sure how pointing to one very specific behaviour and saying "well, that isn't victim blaming" is really contributing anything meaningful to the conversation.

 
barbados
1372791.  Mon Jan 25, 2021 9:47 am Reply with quote

I honestly do not believe that the CPS and the police do nothing other than take the victim f a sexual assault extremely seriously.
I may be wrong, it is the job of the CPS to bring the case to court, it is the job of the prosecution team (as I the lawyers rather than the admin side of the cps) to prove beyond a reasonable doubt that the alleged culprit(s) is(are) found guilty, and it is the responsibility of the police to investigate without any preconceptions as to whether the allegations are factual - and to proceed according to their findings.
Which of these are not carrying out their duties? If it is anywhere prior to court, then how are some cases getting to court? If it is in the court, then the prosecution would be failing in their duty.

 
dr.bob
1372798.  Mon Jan 25, 2021 10:11 am Reply with quote

barbados wrote:
I honestly do not believe that the CPS and the police do nothing other than take the victim f a sexual assault extremely seriously.


Is that belief based on anything other than a personal conviction that everyone acts exactly as they should in the best of all possible perfect worlds?

 

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