05 April, 2009

What law would you change, and why?

Traditionally, I've gone for my 'change maternity leave into parental leave' rant. Then there are all sorts of laws which are great to change in debate world, but less suitable to discuss in an interview.

Now, I think I might opt for anonymity for people accused, but not yet convicted, of serious sex offences.

I think that rape is a very serious accusation to make, one of the most serious after murder. Why, therefore, would I argue to grant anonymity for rape and not for murder? Well, it's because the accusation of rape is far easier to make.

With murder, you need a body, for starters, and then there needs to be a plausible explaination as to how you saw the murder occur (you being the accuser in this case). Murder is a crime of action, more than anything else. If you kill a person, if you don't have the requisite mens rea, it is still considered a very serious crime indeed.

With rape, every part of the act is legal, providing it is done with consent. Rape, as a crime, therefore depends on the 'more difficult to prove' issue of consent. The complainant and the accused can both agree that they had sex, the only fact in issue is whether she said 'no' or not and the evidence for that is almost certainly going to be less cogent than a dead body.

I also wonder whether treating a person accused of rape with more sympathy may improve the conviction rate. There can be no doubt that some women 'cry rape' and are lying, however, my gut feeling is that this is a very rare phenomenon which is exaggerated when discussing conviction rates. However, the perception that it is frequent does create a certain amount of sympathy for those accused of rape 'perhaps she's just being nasty - it'll destroy his reputation whether or not he is convicted'. I wonder if a jury, who are perhaps sure that he did it, but only by a narrow margin, might sometimes think that the accusation means that he has suffered enough, and acquit on that basis.

What are you views? And what law would you change, if you had the chance?


Anonymous said...

So you don't agree with the 'enthusiastic consent' model?

nought.point.zero said...

I’m pretty sure I agree about the anonymity thing, though I concede that it’s not an issue that I have incredibly strong feelings about. I would probably repeal the ban on foxhunting (though again it’s a minor issue, it’s just one that pops into my head) and I would probably repeal a lot of ‘hate speech’ legislation too. If it counts, I would also repeal the 28 days without charge thing. I would also downgrade the classification of almost all drugs (I guess I’m moving outside of ‘removing laws’ territory here though). I’d also get rid of a lot of the extra police powers that have been given via certain anti-terror acts, and liberalise protest laws.
Sorry, I know I was only supposed to pick one.

Miss Middle of Manchester said...

Mr Zero, I agree, so many laws, so little time. The drugs one I definitely like, but you really need a good hour debate to get even part way into that one.

the reason I ask specifically at this time is because it is on an app form I am filling in.

I agree with the list of laws you would remove - I'm just worried that I'll either sounds like a right wing nut job (repealing hate speech without context can give that impression) or a crazy hippy (drugs) whereas I'm aiming for middle ground more or less.

I also want to try and keep it more legal than social policy.

Marc_Newcomb said...

How I long for the day when all British laws will be made by the commenters on this blog. I agree with Zero's ideas except I'd fully legalise almost all drugs, although with restrictions on how/where/to whom they could be provided. Mandatory religious worship in schools would be out too. Not that bothered about fox hunting either way.

Also it would be legal to shoot anyone who let their pets defecate in a public area without cleaning it, or who parked badly.

Miss Middle of Manchester said...

Marc - be careful what you wish for! :)

Completely agree about selective application of death penalty though!

Pupilpedia said...

I think I'd legalise all drugs as well, but it's a bit of a cliche. What about some of the ridiculous land law formulas? Like the passing of covenenants in equity and at law. Crazy. You could very easily just gather all that up into a statute. Although I do like case law, it's much more interesting. Speaking of anonymity has Parliament passed that Bill about giving anonymity to witnesses in various cases? That needs stopping. Then there is the provocation thing, and also some bits on aiding and abetting which need changing, along with something to do with burglary (which I can't remember). Or just the whole of criminal law. Perhaps we bloggers should start to codify it into one big statute?

Miss Middle of Manchester said...

The anonymity of witnesses is a good one - and I had it in the last pupillage interview I had, so it's been 'practised'!

m Andrea said...

Just read about your post, and your reply at Marcella's.

I am wondering what you are using as evidence for your belief that the number of false allegations is sufficiently high enough to warrant changing the UK laws favoring the accused?

Surely your evidence is not "oh, just because she can" make false allegations, is it? Because "oh, just because he can" is an equally valid reason if not more so for why the accused probably did in fact commit rape.

The benefit of specifying the accused's name is that other previous victims who had not reported may then have an opportunity to come forward. And where is the evidence that the accused is "shamed" by having his name published? It appears frequently that most assume the female is a lying whore, and it is the accused who receives sympathy.

And of course the basic, implicit premise of your argument as I understand it is that the estimated number of unreported rapes is completely irrelevant... which is where your misogyny rears it's ugly head -- for in reality a multitude of studies have indicated THAT number to occur in far greater purportion than the number of false allegations. A human who doesn't hate females would be more interested in increasing the number of police reports for rapes which do occur -- which means making it easier for the victims to come forward by correcting societal bias.

" In the UK there is a perception amongst the Daily Mail reading public that there is a lack of parity in rape cases and that proceedings are biased toward the complainant. [...] If a change can be implemented that causes no harm to the case, but could easily have a wider social benefit, it is surely incumbent to consider the issue."

A human who is interested in true justice would be more interested in correcting societal bias instead of coddling that bias.

I also think your argument is worried about the process rather than the outcome, which interests me greatly at this time. Does the law in the UK recognize that which works in theory sometimes falls down in practice, and makes allowances accordingly? I'm really curious about that one.

I'm not here to argue, I'm here to argue. lol

Miss Middle of Manchester said...

Deeply annoying, my first response was wiped out by a firefox error. Let me assure you it was Shakespearean in its eloquence, but you'll just have to deal with the second version!

I agree under reporting of rape is still a problem. I don't think it can easily be solved by a law and I do think MASSIVE progress has been made over the past 20 years or so - as evidenced by the huge upsurge in the number of reported rapes. However, I think the far bigger problem now is the under conviction of rape. If numbers in some areas stay at c.2% then women are going to start being deterred again on the 'nothing will happen' approach.

Actions that therefore address the under conviction of rape are therefore what are needed in this time, if it is a 'game' where only one solution can be chosen.

There are three levels to the udner convicting: Firstly, the police, who are still frequently telling complainants that no one will believe them so there's no point taking it further. Secondly, the CPS, who have a 'reasonable prospect of success' test and understandably have reservations about the quality of evidence on a he said, she said case. That is not to deny that there is still a large degree of bias there too. Thirdly, the jury.

The proposed model is targeted towards changing the attitude of the jury with the hope that this will trickle down. If juries start convicting more, the definition of reasonable prospect of success starts to shift which means the CPS will allow more cases to continue. This may alter police perceptions, but if I am honest, I think that probably needs new training more than anything. Again, the police are better, but often still far from good.

I think it would be great if social bias could be corrected, I'm not sure it easily can. I think changing perceptions of 'unfairness' in the SR will benefit by changing this in the LR.