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Wednesday, 5 August 2009

Harman's foul and illiberal skewing of justice

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.


Nick von Mises said...

Harperson is pretty silent on cuckolding, which is basically the female version of rape.

Nick Drew said...

good argument, R, but set against is the following:

I did jury service recently, and tried a robbery case. We found him guilty (excellent CCTV evidence, hard not to really) but en passant had all assumed the sentence would not be custodial

prior to sentencing it turned out that matey had a string of convictions for violence, and was on remand for 5 additional charges of robbery with violence - so down he went for the (non-violent) case we'd tried.

even after having heard his record, three of the jurors afterwards agreed that they'd have acquitted if they'd known he was otherwise going to be gaoled

I conclude that the 12 good persons and true are not at all minded to punish anyone for anything short of ... well, who can tell ?

JuliaM said...

"So perhaps a new offence, a lesser offence to rape, is needed. Careless Intercourse, perhaps."

No, no - Intercourse Without Due Care and Attention...

Or we could just expand the car theft crime of 'Taking Without Owner's Consent'.

Anonymous said...

Rape is a terrible thing. Unfortunately, when rape occurs, it mostly occurs in private with only two witnesses - the accuser and the accused.

Absent hard physical evidence that rape, rather than consensual sex, has taken place (e.g., bruises, cuts, etc), a jury is left with two contradictory accounts and zero hard evidence to support either side.

Juries are regularly instructed that, when faced with two unsupported statements - a negative and a positive - they must default to the negative. The accuser must prove his or her accusations; the defendant need not prove anything. This is the very foundation of the Presumption of Innocence in British Law. To achieve what Harman demands, we must reverse this: we must presume that, in rape cases alone, an accusation is innately truthful and need not be proved.

The low rape conviction rate is is not the consequence phallocratic anti-womyn discrimination but simply the function of a judicial system that presumes innocence and demands proof. Harman's demands require that an accusation is proof enough - a repulsive suggestion more appropriate for the Soviet Union of the 1930s than for this country in the twenty-first century.

Anonymous said...

"Harman's demands require that an accusation is proof enough - a repulsive suggestion more appropriate for the Soviet Union of the 1930s than for this country in the twenty-first century."

Yes. And...? Hatemen and her male cronies have done their level best to turn Britain into the United Soviet Socialist Kingdom over the past 12 years.

Raedwald said...

Julia - I love the idea of TWOCing. Sort of "Well, I might not have minded if I'd been awake ..."

And a £500 fine and his name in the local papers would do the trick.

Peter said...

Your idea of a lesser crime is a good one and it has been discussed a number of times. However, the idea will never find universal acceptance - particularly amongst women - unless it is proposed by women. I can hear only too clearly that all too familiar cry "Rape is a male-defined crime".

This statement, that the crime is male-defined, is calculated to undermine any contribution that men might make in formulating any law that affects women and plays straight into the hands of strident feminists like Harriet Harman.

Thank God she is likely to be booted out next year. The prospect of another five years of Labour - particularly with Harman waging war against men - is a prospect too bleak to contemplate.

Anonymous said...

Harriot Harmmen isn`t to blame, she`s just being what she always was. I detest the woman and if I saw her injured on the street I`d spit on her and walk on but men voted her in alongside women, men helped her get into a position of power and a man made her his deputy. I`m ashamed of being a man sometimes, most are so stupid they deserve this bitch and others like her.

JuliaM said...

"However, the idea will never find universal acceptance - particularly amongst women - unless it is proposed by women."

Even then, if the 'wrong' women dare to suggest it, the backlash against them will make men feel they got off lightly!

Just check out this thread on domestic violence at CiF and see the vitriol reserved by some ultra-feminists for Erin Pizzey, who had the nerve to go 'off the reservation' over the issue of domestic violence directed at men...