Sexual Misadventure

Rape trials have been captured by sexual politics

A new category of sexual misadventure is needed for justice in the post-#MeToo world, argues Sean Bw Parker.

In the UK, the Sexual Offences Act 2003 divides the crime of rape into three category ranges for sentencing based upon perceptions of harm and culpability. Category One most closely corresponds with the public’s assumptions about rape: a premeditated and violent attack, sometimes involving the use of a weapon. Category Two recognises that the victim has suffered severe psychological or physical harm, perhaps as a result of pregnancy, abduction, violence or threats of violence. Category Three is often applied in situations where there is disagreement about consent, for example in cases where the defendant believed consent had been granted but the victim was intoxicated. The law goes on to recognise other categories such as unlawful sexual activity (often relating to the ages of victim and perpetrator) and assault by penetration; before detailing further ‘lesser’ offences. 

The nature of rape means it is an incredibly serious crime but one that often occurs in the absence of witnesses. Subjective, often highly emotive, personal testimonies sit alongside other forms of evidence. Judges and juries are expected to balance justice for complainants whose lives have been devastated by rape against the potentially life-destroying harm of a defendant being wrongfully convicted or facing false allegations. To complicate matters further, reports of rape can be made by third parties (friends and family members of a presumed-victim) or encouraged by therapists or other medical or social work professionals. The upshot is both widespread concern about low conviction rates for rape on one hand and growing awareness of the problem of false accusations on the other.

For over a decade, it has seemed as if both legal frameworks and the court of public opinion have erred on the side of ‘believe the victim’ or, more accurately, ‘believe the allegation’. The #MeToo movement, which took off on social media following high profile accusations made against Harvey Weinstein, went a step further and urged people to #BelieveAllWomen. The Johnny Depp vs Amber Heard trials led to some questioning of these assumptions. 

In the US, preconceived notions of guilt and innocence appeared to receive Presidential backing as first Barack Obama, and later Joe Biden, authorised college boards to prosecute campus rape allegations internally (under Title IX legislation) rather than turning to external police forces and law courts that would demand a higher standard of evidence. This prompted some to believe that male defendants and female complainants were being held to a differential standard and that the justice system might be prejudicial towards male defendants. 

Changes to Title IX legislation were undoubtedly driven by a desire to be progressive and to protect women on campus. However, by effectively removing the presumption of innocence from defendants, and assuming that allegations are to be believed without question, young men found themselves expelled from college and with their futures in jeopardy on what often seemed to be little more basis than the feelings of the complainant (or, sometimes, those around them, outraged on their behalf). Money was often made available to cover the fees of the complainant and this led to the suspicion that there were financial incentives to increase the numbers of those found guilty of sexual assault or rape on campus. 

Some have questioned whether a desire for political virtue-signalling has become more important than justice. Others ask who really suffers in an age when being a victim can be turned into a financially lucractive and career-enhancing mattress-carrying art project while the friends and family of defendants claiming to have been falsely accused struggle for exoneration. After more than two decades of he said/she said cases essentially being reduced to ‘believe her’, the mothers, sisters, friends and spouses of the accused are fighting back.

It is in the best interests of both victims and the accused, claimants and defendants, to ensure fairer outcomes when rape allegations are made. One solution might be to drop conviction targets for the police and judiciary and then to introduce a new category of no-fault ‘sexual misadventure’ as a part of community resolution practices. This would be based on the fact-finding inquiries utilised in some other countries, such as Germany, France and Greece, rather than the adversarial system we currently have in Britain which ensures people remain divided and antagonistic. 

All parties may benefit from losing the wigs, gowns, reporters and public galleries and, instead, sitting around a table with an adjudicator and a recorder. Truth may be more likely to emerge through calm and mature questioning, rather than exploiting legal loopholes, media narratives or ambiguous emotional responses.

In this context, theoretical ‘rape myths’ would be less of a concern. At present, a belief that ‘rape myths’ are widely held is used to deny the specific human context of a particular interaction and rob juries of the freedom to arrive at their own conclusions. Alarmingly, an unsubstantiated belief in the prevalence of rape myths is being used by the Law Commission to justify a consultation on juryless rape trials in England and Wales.

The aim of a ‘sexual misadventure’ category of offence would not be to find one party guilty, as is traditionally expected of juries. Rather it would be to construct as close a narrative to what happened as is possible when no other witnesses were present (which is usual). As most people know intuitively, relationships occur far beyond the ivory-towered imaginings of politicised academic activists and their research statistics. 

Ideology has been allowed to drive the production of stereotypes used to illustrate news stories and academic literature. But these stereotypes must not be allowed to continue existing in actual law, particularly when the consequences for those wrongfully accused can be as destructive and long-lasting as a sexual conviction. Sensible and fair solutions are urgently needed to restore justice to such a loaded term as the word 'rape'. 

A new category of sexual misadventure, dealt with in fact-finding, no-fault tribunals, is the only humane way to achieve sex-balanced fairness in the aftermath of a ‘believe the allegation’ judicial landscape.

Sean Bw Parker MA  is the editor of False Allegations Watch/Empowering the Innocent.

Photo by Saúl Bucio on Unsplash.