When buggery was a capital offence there came a time when juries became reluctant to convict; if the ratepayers in the jury box didn't actually approve of it, they didn't think it deserved hanging for either. Eventually the law fell into desuetude in the 1800s, and buggery ceased to be a criminal offence altogether in 2005. I'm quite sure there were plenty of bigots and zealots about in the late eighteenth and early nineteenth centuries who excoriated the juries for their refusals to convict, and who wanted to see buggers hanging from Tyburn gallows in their scores. We've usually managed to keep such lunatics away from power, and so does the law evolve.
Magistrates have done much the same thing for petty laws. Riding a bicycle without lights, or a bell, continues to be an offence - yet the fines imposed are so derisory that the police have simply given up bringing cases. Fifteen hours of a constable's time, and five grand's worth of CPS lawyer for a £5 fine just isn't worth it. And so does the law evolve.
Now Harman is upset at the low conviction rate in rape cases - the suggestion being that guilty men are walking free - and wants to change the law to convict more men. Well, if men are walking free, it's generally because juries find them not guilty. And what Harman wants to do is to overide juries, who hear the actual evidence and watch both accused and defendant in person. Perhaps she wants to set up special Rape Tribunals, with a single female judge hearing cases without a jury. Whatever, it's an illiberal and foul interference with justice.
If we accept (and it's not hard to do) that juries will be more representative of the view of the public than Harriet Harman on this issue, then perhaps it's not the conviction rate that's the problem, but the offence.
And just as our forebears didn't reckon it just to hang a man for buggery, so juries now may not reckon it just to bang a man up in prison and put him on the sex offenders register for having what he may have imagined at the time was consensual sex with a drunken ladette wearing six ounces of clothes.
So perhaps a new offence, a lesser offence to rape, is needed. Careless Intercourse, perhaps. Non-indictable and triable only in a magistrates court. And let's save the rape charge and its consequences for the offence that juries recognise as rape.