The burden of proof in rape cases

I had an interesting discussion - well, more of a row, really - with my girlfriend yesterday following last night's episode of Silk on BBC 1. This featured a rape case in which - as is usually the case - the conviction or not of the defendant came down purely to the question of who the jury believes. In this instance, the defendant was acquitted, although the programme provided additional information to the audience compared with what was available to the jury so as to suggest that a guilty verdict would have been more reasonable.

The argument with my girlfriend was sparked off by my observing that, as far as I am aware, the guidance that is now given to boys in English schools is that they have to obtain definite, positive consent to sex in order to be sure that they are not committing a rape, rather than just the absence of a 'no'. In other words, it's no longer an excuse to assume that, if the woman does not say no, she is giving her consent: she has to provide a clear and unambiguous 'yes'. I then went on to say to my girlfriend that, in the rape case on the TV drama, this had not been reflected in the interrogations in court of the victim and defendant: the victim confirmed she had not said 'no', but this was allowed to be construed as a potential 'yes'; whereas if the man had been under an obligation to obtain a positive 'yes' (not just the absence of a 'no'), then the incident in question would much more likely have been interpreted as a rape. In other words, if a man does not obtain unambiguous consent, then consent should not be assumed, either by the man or by a court. I observed that the trial in the drama did not seem to reflect this shifting of the burden of proof in favour of the woman.

The row that ensued owed more to my girlfriend's own personal experiences than to the merits or otherwise of the technical point I was making, and my girlfriend argued that distinctions of the kind I was making changed nothing about the basic dilemma that it still comes down to who the jury believes. This is true. But it's equally true that the change in emphasis to which I was referring is not insignificant: while it doesn't affect the fact that rape cases hinge on who the jury believes, it does affect what they are required to believe; i.e. whether explicit verbal consent is given or not, rather than just implicit, tacit consent.

This distinction can be brought to bear on one of the drama's pivotal moments, where the council for the defence (a woman who has strong reservations, to say the least, about the merits of her own case) asks the defendant to look her, the jury and the victim in the eye and state that he didn't commit a rape. With the change in emphasis from tacit to explicit consent, the prosecution would have been able to ask the defendant not whether he had committed rape but whether at the time he was absolutely sure that he wasn't committing rape. Any hesitation or uncertainty on the defendant's part could then have been construed as implying that the defendant wasn't completely sure. In other words, even if, in his own mind, what he was doing didn't constitute rape, if there was any doubt about the consent of the woman at the time of the incident, then this is tantamount to rape: having sex without obtaining the explicit consent of the woman.

Of course, it is always possible that a man can have sex with a woman without being completely sure he has obtained her consent, and that the woman is in fact consenting but subsequently decides to accuse the man of rape. This is not a rape but the man is on one level just as 'guilty' as if it were: whether the woman was actually willing or not, the man did not fulfil his moral or legal obligation to obtain explicit consent.

If this principle were reflected in law, and not just in English school class rooms, then women would in fact be much more likely to be given the benefit of the doubt by juries; and it would make it easier to obtain convictions in rape cases.

However, if this principle were indeed incorporated into English law, would it mean that, in every single instance, consent could not be assumed and would have to be explicitly requested, thereby destroying the magic of intimate moments between loving couples slipping wordlessly into passionate love making, to say nothing of eroding the bonds of absolute trust that should exist between, say, a husband and wife?

And is a man making love to a woman without being 100% sure he has obtained consent - but where that consent is both apparent and actual - really effectively guilty of rape?

Civil Partnerships Are the Best Way To Protect the Rights Of Unmarried Couples

The proposals on new measures to protect the legal rights of co-habiting couples, published today by the Law Commission, constitute a valuable, well thought-out contribution to the debate on the rights, responsibilities, legal status and social provisions relating to couples, whether married or not.

However, the proposals stop short of recommending any formal legal status for co-habiting couples, such as a registered or civil partnership - for straight couples as well as gay. The primary justification for not making such a recommendation appears to be that this would be viewed by some organisations, such as the Church, as undermining the marriage institution; and that this might undermine support for the new regulations the Law Commission is recommending.

An alternative view, set out in my blog entry on civil partnerships of 10 July and in a supporting article on new principles for marriage, is that civil partnerships are necessary and desirable for a number of reasons. The proposals made by the Law Commission today are complementary to my own proposals on civil partnerships. Indeed, the Law Commission's recommendations provide a useful regulatory framework for the resolution of financial issues resulting from the break up of a partnership, which was an issue for which I did not make any specific proposals (see items 3 and 4 in the table of differences in the provisions for separating married and unmarried couples in the 10 July post).

The Law Commission's proposals essentially give co-habiting couples the right to opt out of the regulations assuring an equitable resolution of financial and property claims resulting from a separation. The existence of formal (straight as well as gay) civil partnerships would effectively provide the opportunity for couples to opt in to a similar but more extensive set of regulations, whether or not they would otherwise have been eligible to apply for the support envisaged by the Law Commission for couples who have not opted out from it.

This might appear to be merely a technical distinction. However, it relates to more fundamental questions about why civil partnerships for straight couples may still be required even if satisfactory regulations - such as those suggested by the Law Commission - are brought in to protect the rights of separating co-habiting couples and their dependents. These reasons are set out below:

1) Civil partnerships such as those I recommend would not undermine marriage because they would be part of a more comprehensive, 360-degrees reform of the legislation and regulations governing marriage and partnerships. These would be designed to greatly strengthen marriage, and ensure that the commitments made by marrying persons are more far-reaching, strict and enforceable in law. A registered / civil partnership, in this context, would be similar to current civil marriage in terms of the degree and scope of commitment that was being made - less than the full commitment of a marriage, which would be greater than that which is formally prescribed for civil marriage in the present.

2) The full set of proposals I make involve the legalisation of marriage for gay couples, which would involve exactly the same set of rights and responsibilities as those applying to straight couples. Religious marriage would be preserved as a heterosexual-only institution - unless the Church or other religious body decided otherwise. But the civil law regulating marriages consecrated in a formal religious context would be the same as that which applied to marriages - gay or straight - formalised in a civil ceremony.

If gay marriage were introduced, there would be a need to consider whether the existing regulations governing (gay) civil partnerships should be retained or modified. Having created the legal entity of civil partnerships, it could be considered unjust to expect gay civil partners to be legally obliged to 'upgrade' their status to that of married partners if they did not choose to do so - especially if marriage implied a stricter set of rights and responsibilities than do civil partnerships and marriages today. However, if gay persons were allowed to remain civil partners even if gay marriage were legalised, it would seem discriminatory to deny the same set of options to straight couples: marriage, civil partnership or co-habitation (governed by regulations such as those recommended by the Law Commission).

Clearly, gay marriage is not immediately on the agenda, and the Law Commission's proposals do at least represent a sensible option for improving the protection afforded to co-habiting couples that currently choose not to marry. However, in my view at least, it is inevitable that gay marriage will eventually be introduced. This is because, in a civil context, it is discriminatory that gay persons cannot marry but straight persons can. People of a conventional religious conviction are entitled to hold the belief that gay marriage is an invalid concept. But then equally, if gay marriage were legalised, religious institutions would still be under no obligation to accept them as valid - just as, for instance, the Catholic Church does not accept that a civil marriage entered into by a Catholic without the consent of the Church is valid; or the Church of England does not necessarily accept the validity of second marriages. The fact that the Church holds a particular opinion about gay marriage should not prevent secular society from reforming the civil marriage institution so that it is not discriminatory.

However, even if gay marriage is never legalised, there is still an argument to be made that denying civil partnerships to straight couples is discriminatory under current legislation. This is for two related reasons: a) it involves denying to straight couples the rights and responsibilities bestowed on gay civil partners; b) as part of this, straight couples are denied the possibility to opt in to a particular set of regulations (those applying to civil partnerships), which is not denied to gay couples.

Any set of regulations designed to protect the rights of co-habiting / unmarried couples must surely apply equally to straight and gay couples, including the measures being proposed by the Law Commission. So if co-habiting couples - gay or straight - are allowed to opt out of the minimal set of supportive legal regulations advocated by the Law Commission, they should also be allowed to opt in to the more maximal set of regulations involved in civil partnerships.

But ultimately, only the legalisation of gay civil marriage will enable full equality and a balanced set of regulations, in which gay and straight couples will be allowed the same set of options: marriage, civil partnership and legally protected co-habitation.

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New Principles For Marriages and Partnerships (Part Two)

2 Civil partnerships (gay and straight)

If civil marriages were redefined and reformed in the manner outlined in part one of this essay, then there would be a corresponding need to revise the thinking and legislation regarding civil partnerships. This would be the case for a number of reasons:

1. As marriages, under my proposed set up, would be more strict in terms of the legal and social obligations placed upon them, this could leave a vacuum, whereby the looser commitments many people make today when getting married would no longer have any formal framework within which they could be expressed.

2. As my proposals involve extending civil marriage to gay persons, it would be necessary to at least redefine the current rules relating to gay civil partnerships. If civil partnerships were retained, with or without a modification to the rules governing them, then it would be illogical if not discriminatory to limit them to gay couples.

3. Many people have already argued in favour of some form of official recognition of extra-marital straight relationships as a means of protecting the legal rights of those involved, and providing some means to celebrate and recognise those relationships that does not involve marriage. The current blog entry represents a proposal for precisely this sort of arrangement.

2.0 Guiding principles

2.0.1 Recognition of an existing status, not the start of a new one

Under my proposals, there would be a fundamental difference between a marriage (civil or religious) and a civil partnership. The beginning of a marriage would represent the start of a new condition of life: a new legal status pertaining to the relationship between spouses; formally becoming part of a new family; taking on rights and responsibilities towards the marriage partner and his / her extended family. A civil partnership, on the other hand, would be primarily the way in which society recognised the existence of a relationship outside of marriage, and conferred certain rights and responsibilities upon the individuals involved that were not identical to, or as extensive as, those of a marriage.

2.0.2 Table illustrating the differences and similarities, under my proposals, between marriages (gay and straight) and registered partnerships:

Marriages	Partnerships
1) While the actual sexual relationship is not inherently expected to be permanent and exclusive, there is an expectation of a life-long emotional and practical commitment to the spouse and his / her family	1) Neither the sexual relationship nor the emotional / practical commitment are inherently expected to be life-long. However, a registered partnership is still a serious social and moral statement of intent to care for one's partner and his / her dependants
2) A marriage is deemed to establish a permanent relationship between the spouses and their respective families: one doesn't just marry a husband or wife but marries into their whole family	2) A registered partnership is not deemed to establish extended family relationships other than those of genetic relatedness or those recognised by social convention. For instance, one's gay son's registered partner is not formally one's son-in-law, as his husband would be; but one is of course entitled to call him such. The establishment of a partnership would, however, confer the status of 'next of kin' on one's partner, unless this was explicitly rejected by mutual consent
3) There is a formal and enforceable process for dissolving marriages and for ensuring that the legal obligations of care for one's spouse, which one entered into on marrying them, continue to be fulfilled (albeit in a modified form) after the marriage	3) There is no formally prescribed process for dissolving registered partnerships, although best-practice recommendations are made about counselling and reconciliation services that are available. The process for determining the partners' financial and practical obligations towards one another and their dependants after the partnership has ended (which clearly would need to be worked out in much more detail than is presented here) is much more streamlined, with fewer possibilities for arbitration and appeal
4) The rights, needs and justifiable expectations of each spouse and of dependants, particularly children, are all given equal consideration in the event of a divorce. There is no inherent presumption of guilt for the marriage break down, and no automatic linkage of blame for this to the divorce settlement. This would be carried out purely on a basis of need, proportionality and justice – to be determined on the merits of each case	4) The rights, needs and justifiable expectations of all involved are also taken into consideration in the event of a partnership break up. However, there are fewer safeguards in place to ensure an equitable settlement: i.e. there is nothing such as a 'Statement of Expectations and Intentions' (a recommended formal document for before and after a marriage) or pro nuptial agreement to set the parameters, unless the partners informally agree to one. Similarly, the arbitration and settlement process is much more rudimentary: there is more of a straightforward equation, for instance, along the lines of 'father pays maintenance, inflation-linked, of £ x in exchange for y amount of access to the children whose custody is awarded to the mother'. There would also be fewer resources and tools made available for enforcing such decisions, meaning that abuses would inevitably arise
5) The tax and benefits system would be used to the advantage of married couples, especially those with children, in order to provide an extra incentive for married persons to stay together. The UK Conservative Party's proposals on marriage, published today (9 July), are compatible with this suggestion.	5) The assistance provided to registered partners and their families by the tax and benefits system would be awarded on a strict basis of needs, e.g. in line with the government's policies on reducing child poverty. There would not be any additional premium or separate benefits / tax breaks as there would be for married couples.

2.0.3 Prioritising marriage but dignifying partnerships

The purpose of the benefits and tax measures outlined in point No. 5 in the table above would not be to privilege marriage unfairly over unmarried, registered partnerships. They are merely intended as an additional incentive for people to take the decision to get married and to stay married, given the immense social benefit to be gained from stable marriages and families. On the contrary, by creating an additional official legal status for unmarried partnerships, it would be intended to support and affirm these relationships and the important role they play within society and families.

It is often argued that giving unmarried partnerships a status equivalent or similar to that of marriage would only serve to undermine the institution of marriage. My proposals address this criticism by greatly reinforcing marriage; by giving it a new and clearly defined status within society and families; and by establishing stricter, enforceable rights and responsibilities for married and divorced persons.

Precisely because of this more rigorous marriage regime, there would be many couples who might otherwise have got married who would no longer be willing or able to marry, for one reason or another: problems with emotional commitment generally; fear or rejection of the obligations entailed; reluctance to consider themselves part of their spouse's family; family objections; etc. The new 'registered partnership' framework provides an alternative official recognition of such relationships; and it also provides a framework of civic law to support pre-existing relationships of this sort that have hitherto given rise to de facto legal loopholes whereby parents have been able to evade their financial and moral responsibilities for children, for instance, or inheritance and tax rights have not been recognised.

Control Orders: A Better Alternative

The trouble with Control Orders - the UK security measure whereby terror suspects against whom a conventional legal case cannot easily be built can effectively be placed under indefinite house arrest - is that in practice they embody a presumption of guilt. This is in contrast to the long-established British legal convention that a suspect is to be considered innocent until proven guilty. Yesterday, the government launched an appeal to the House of Lords against a legal ruling previously obtained by six Iraqi Control-Order detainees that their detention violated their rights to liberty and a fair trial.

As in all such cases, it is important to try to strike a balance between the legal and human rights of suspects, and the right of the public to be protected against potential murderers. But the de facto presumption of guilt is clear: if the police who press for a particular suspect to be controlled did not think that the evidence they had gathered strongly suggested the person in question was a terrorist, then there would be no point in the measures - other than the exercise of political coercion to try to intimidate radical groups and individuals into behaving in a more moderate manner. But while a sense of injustice persists about the way in which suspects’ guilt is accepted by the judges who ratify Control Orders, so the suspicion that these measures are just such a coercive political measure will linger, to the detriment of the so-called battle to win hearts and minds.

There is an alternative that would bring more fairness back into the legal process surrounding suspects of this sort. If indeed there is a presumption of guilt, why not formalise this and say that it is then down to the suspect to demonstrate his or her innocence through a fair, open judicial proceeding? The suspect would have the right to know on what basis their guilt was being presumed and could appoint a legal team to build a case in their defence. The issue could then be decided in an adversarial manner just like any other case (albeit that, for security purposes, this might not involve a jury). The difference from the assumption of innocence would be that if, on the balance of evidence, it was not conclusive whether the individual either was or was not a terrorist, the Control Order or other restrictive measure would remain in place - subject to fairly regular (e.g. six-monthly or annual) review. If the verdict was guilty, however, this would enable the suspect to be imprisoned, thus doing away with the anomalous legal no-man’s land of the current system. And obviously, a not-guilty verdict would allow the individuals affected to regain their rightful liberty.

Clearly, there are potential pitfalls behind this idea, and legal safeguards protecting both the rights of the individual and the prerogatives of the state would need to be put in place. The main issue would be whether society would be able to accept a derogation from the presumption of innocence and would be able to overcome concerns that this would lead to further erosion of this basic right. But under the present set up, the presumption of innocence is in fact not working either to protect the rights of suspects or the state’s duty of protection. It’s because the formal process of law demands that the accused be presumed innocent until proven guilty that the case against them can’t be taken to court and the suspects are left in a legal limbo. And because a democratic state can’t arbitrarily impose imprisonment without trial, it has had to come up with the Control Order compromise; but this is not secure, as recent evasions have demonstrated - so society is not being protected.

The limited admission of a formal presumption of guilt that I am advocating would recognise the realities of fighting terrorism, which are that absolute guilt is sometimes impossible to prove beyond all reasonable doubt and that therefore guilt is having to be presumed in certain cases. And, at the same time, this would allow suspects to be given a fair hearing and chance to exonerate themselves if indeed they are without blame. And this would also defuse the charge made in some quarters that Control Orders are politically motivated and are placing the legal system at the service of an oppressive, anti-Islamic state.

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