Monday, 16 March 2009

Mens Rea

I have often argued that in rape cases (and only rape cases) if it comes to court, the burden of proof should be on the Defense.

My main reasoning for this being it's much easier to prove that something did happen than it didn't - ie in cases when it's already been established that sexual intercourse did take place, it's easier for the defense to prove that the woman did give consent than it is for the woman to prove that she didn't.

The whine then comes from every section of male society (even some of the nice ones) "but if we actually make it easier for women to secure a conviction after they've been raped, then what's to stop all women who've had a one-night-stand and regretted it the next morning from hauling that poor little innocent man in front of the judges and ruining his life?" (I paraphrase, obviously.)

There seems to be this paranoia from men that if female consent is not presumed whenever they have sex, and must explicitly be given, then women in their thousands will start vindictively ruining men's lives on trumped up charges of rape. Guilty conscience/ fear of revenge much?

Why is it so hard for men to just suck it up and deal with the fact that women are not just there as something to stick the vagina to? What is so hard about treating women with respect, and making sure that sex is something she actually wants before you do it with her? Apparently it "kills the mood" - well sod that! Any man who puts "the mood" ( ie his pleasure) before a woman's safety and/or wellbeing isn't worth the time of day (I have a similar argument for men who won't use condoms). Similarly, if a woman's obviously drunk - what is wrong with, I dunno, not taking advantage of her?? Is a man getting his jollies really that important?

Presume non-consent until proven otherwise, and no-one's going to try and convict you for rape. It's that simple. The onus should NOT be on a woman to stop herself getting into a situation where she might be raped, it should be on the man to not create such a situation in the first place.

And even if a change in the system would lead to abuse - and I don't believe it would - I don't care. That is a problem for another day, and not an excuse to not change the system which is already open to horrific abuse, only the other way around. It is vanishingly rare these days to get a conviction on a rape case. Go look at the stats if you like, they're not hard to find. Sorry, guys, but with a system as crappy as this, you have no right to whinge that a positive change for women "might possibly be open to abuse". Boo fricken hoo.

But here I have it, the one piece of evidence that should finally shut men up about this "open to abuse" "problem": Mens Rea.

It means "guilty mind" (and not "men's excuse", as I would love to joke...) and means, in British Law, that if a man honestly believes that the woman was consenting, he is not guilty of rape. Seriously. Check it out on the 2003 sexual offenses act.

Now stop whining.


  1. Follow-up:

    With regards to "active consent" (ie consent not presumed) this is already the case under Scottish Law. Yet another reason why I'd like to move there.

  2. Sorry to be pedantic, but that isn't quite right. The Sexual Offences Act 2003 changed the mens rea for rape so that belief in consent has to be reasonable as opposed to honest:

    The Act also brought in evidential presumtions that consent was not given in certain circumstances:

    We have a long way to go, but the Act has definitely helped things.

    I am in favour of having more help centres for women (and men) who have been the victims of rape, where they can be given first aid, emotional support, the police can come to them and evidence can be taken ASAP. If these places were widely available, it would provide invaluable support to the victims and would send out am message to would-be rapists that there are whole teams of people ready to help catch them if they commit the crime.