The Ministry of Justice is now seeking comment on the idea that those charged with rape should have to prove consent as well as on proposals to create a legal definition of consent to remove ambiguity and to ban questioning complainants about their sexual history with the alleged attacker. (Discussion document here, or here for the 672KB pdf file).
I posted last month on the Law Commission’s comments on the need to reform court processes in sexual offence trials. As retired Appeal Court Justice Ted Thomas rightly put it:
“the nature and impact of the trial in sexual cases on complainants is a brutalising and distressing experience in which the complainant is effectively put on trial.”
Something needs to be done to ensure that justice is done and that sexual violence is taken seriously and some of the proposals in the Ministry’s paper look promising on the face of it.
But doing away with the presumption of innocence and requiring a higher standard of proof from defendants is another matter. There are flaws with “innocent until proven guilty”, but it is generally thought that it is better to let a few guilty go unpunished then to punish the innocent. Last month Inventory2 condemned the idea as “a piece of liberal lunacy”, saying “(it) goes too far, and should be quickly condemned to the dusbin.”
How about we look at all the other alternatives, implement those that look like they will make a difference, and then revisit the issue of proving consent if we consider this necessary. There is a great deal to gain, but also a great deal to lose.
[Update: MacDoc makes some constructive suggestions about how to improve the trial process.
And in his typically thoughtful way, Bomber at TUMEKE! crows that, "... gone are the days a rape suspect could claim consent from the sparkle in the victims eye." Some will be surprised to hear that this is what rape suspects argue.]