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  • Peter Francis Fenwick

The Trouble with Rape Trials

Brittany Higgins
Brittany Higgins

The Lehrmann-Higgins case has highlighted how ineffective the law is in sexual assault cases.

The law depends on evidence. Evidence is obtained from multiple sources and then subjected to rigorous scrutiny for accuracy and truthfulness. In sexual assault cases the necessary evidence may not be available.

There are often no witnesses to the event and there may be no physical or documentary evidence. The court must rely on the statements of the accuser and the accused. When these differ, how can a jury determine the truth?

It may well be, as some claim, that only 16% of rape cases are prosecuted and of these only 50% result in convictions. So 8 in every 100.

Clearly the legal system is ineffective and alternatives must be found. I propose that we look to improving cultural norms. We should be clear about what is and is not acceptable behaviour and we should encourage social practices that limit the opportunities for sexual assault. Rather than trying to convict more rapists, we should put our efforts into reducing the incidence of rape.

We no longer think young women should be chaperoned wherever they go. But this needs to be balanced with personal and group responsibility. For instance, it is sensible for young people, men and women, to avoid getting paralytically drunk. It is a good idea to be with friends who will look after you: friends who will say “I think you have had enough. It is time we took you home.” It is not prudent to be alone in a secluded place with some guy you do not know well, with whom you have not yet formed a loving relationship.

In most Western democracies, young men and women are much better informed about respectful practices and the need for consent than their grandparents were. Consequently, young women now have much more freedom, more agency than before. Also, nowadays, men are generally better behaved. However, when they are not, it is quite acceptable for young women to be more assertive in rejecting unwanted advances. For suggestions see Loretta Lockesmith's advice to her daughter - Get Your Hands out of my Knickers.

We may need to accept that there are systemic problems which make the law ineffective in sexual assault cases. Weakening our legal system to determine the truth by accusation or passion or narrative instead of relying on tested evidence is a retrograde step. See Chapter 10 of The Fortunate.

We need to put our efforts into encouraging better behaviour, improving cultural norms, agreeing what is acceptable and what is good practice. In The Better Angels of Our Nature, Stephen Pinker suggests that we may have made more progress than we realise.


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