Barrister’s Rape Blog Controversy

Last week, a barrister caused controversy by suggesting in a blog that if a woman complains about being raped while drunk, her complaint should be dismissed. Drunken consent is still consent, argued David Osborne, who one hopes is no relation to George Osborne.

His suggestion was indelicate, to put it mildly, but was clearly provoked by the ludicrous hysteria we are now facing on both sides of the Atlantic about certain kinds of rape. Not the unambiguous kind in which a victim is attacked in her own home or in the park by a masked assailant who often terrorises and brutalises her in addition to any sexual acts he performs or forces her to perform, but the she said/he said type known as date rape, acquaintance rape, and the like. Although his blog was removed PDQ – one suspects after a call from the Bar Council or some such – it has been captured by at least one newspaper. Outrage aside, one should ask, was he right? The unambiguous answer is of course yes and no.

Firstly there are cases – thankfully few and far between – like the outrageous and well-publicised Steubenville affair of 2012 in which a 16 year old girl got drunk at a party, and was then handed round like a piece of meat by other students who seemed to think their behaviour was hilarious. Then, at the other end of the spectrum there was the still albeit sordid Ched Evans case in which a young woman went to an hotel with the intent of having sex with one man, then woke up the next morning (claiming) she could not remember if she had engaged in sexual acts with one man or two or none.

Some cases are worse than that by far, a young woman may consume a great deal of alcohol then have sex with a man who is equally drunk. If she cannot remember – or claims she cannot remember – having sex, agreeing to have sex, or even if she initiates the act with a willing partner, can that really be classed as rape, or is it simply buyer’s remorse?

A woman who goes to bed with a prince and wakes up next to a frog has not been raped, rather she has had bad sex. This is something that cuts both ways.

David Osborne’s anger was directed at the insidious and dangerous attempts of the CPS to pander to anti-rape activists (so-called) who insist on no credible evidence that the vast majority of rapes go unreported, and that this is because of a culture of disbelief amongst the police. Furthermore, they claim, juries acquit defendants unjustly because they too have been taken in by rape myths, one of the most prevalent being that women seldom if ever lie about being raped. All the available credible evidence indicates otherwise. The fact is that when juries hear the evidence, so-called, they refuse to convict. Why should a jury convict on the evidence of a woman who claims to have been raped by a man, who admits dating him repeatedly afterwards, then weeks or months later accuses him of rape? That is what happened in the case of American student Landen Gambill, which did not involve either alcohol or the police.

A major false premise about most of these date rape cases is that any sex that takes place is initiated by the male, and that this is seen as some sort of reward, one which is always given reluctantly. The reality is that it is the woman who chooses to have sex, and with whom, including who takes her home, at least as far as young women are concerned, though as women grow older, men have more say and may even dictate terms.

We need to break away from this hysterical nonsense; convicting innocent men is an even greater injustice than allowing the innocent to walk free, although increasingly those who control our criminal justice system do not appear to believe so.