This post was prompted by an episode of Panorama (shown on the BBC) entitled Rape on trial.

I've never quite been comfortable with the way the rape as a crime is set up. After a good discussion with Miss John, my perspective stems from imagining the following scenarios.

Imagine the situation given that all of the following are true:

1. Alex wishes to have sex with Chris
2. Alex and Chris have sex
3. By some magical mechanism, we can clearly see what is going on inside Alex's and Chris' head

Given these, I can see 4 outcomes:

A

This is a disturbing situation. However, even though we can detect Alex's thoughts Chris can't. Also, Chris is not materially hurt by this.

B

Two people having consentual sex (and hopefully a good time)

C

This is clearly rape. Alex believes that constent has not been given but continues to the detriment of Chris.

D

Alex essentially has a catastrophic misunderstanding of Chris's wishes. This is not a deliberate misunderstanding, we would be able to detect that. However, while this might be seriously negligent, I would be very uncomfortable convicting Alex of rape. I would suggest some extensive education for both Alex and Chris to make sure that in future, they both read and given out the correct signals.

My problem here is that the above analysis raises more questions than answers:

• What qualifies as consent? Can consent be withdrawn, and if so, at what point?
• The definition of rape states that because Chris did not consent, Alex was guilty of rape even in case D. Really?
• Because we can't in fact read peoples minds, how as jurors do we work out who consented, and to what?

Legally, we are forced to make judgements the whole time about things we can't know for sure, about what's going on in peoples heads - it's not just rape that produces this problem. Murder, manslaughter and attempted murder, are distinguished partly by the intent. Often there is enough surrounding evidence to be sure enough of intent. The point here is that needing to know someones thoughts may make something difficult, but pragmatically, we can work under that basis, it doesn't nullify the point or need for the rule.

The main problem with rape (as opposed to killing) is that it normally takes place away from witnesses, and often comes down to the assumed victims word against the assumed perpetrator. You may be surprised to know just how often courts side with the assumed perpetrator. However violence and resistence often can be established forensically.

My view on a couple of your points:

Situation A is not just disturbing - to my mind it is attempted rape and should be prosecuted as such when it can be reasonably demonstrated.

Situation D should almost never happen. Sex isn't something that one person does to another, it's something two people do together and there should usually be active involvement from both parties. I would say that the absence of active involvement should be considered to be withholding of consent, except under specialised circumstances (role-play), and people should realise that if they are going to do role play that might be dangerous or could conceivably be misconstrued as rape, they should have a written agreement first. Someone was strangled to death recently in what looked exactly like rape, and the killer argued that they had been roleplaying. This is sufficently unusual, that if I was the judge I would assume this is a lie, and make sure that people know that if they do this sort of thing they need to take precautions beforehand. For other situations, the court can operate on whether a reasonable person would believe the other parties actions and words constitued consent or not. It's not a perfect legal principal, but it's one that we use a lot and works pretty well.

Can consent be withdrawn? If the man decides to, he can withdraw consent at any time. The woman should have the same right. Or perhaps you think the woman should be able to sue the man if he withdraws consent after some legally agreed point?

Of course D is rape - in most cases, it should be punished as rape, because it should have been obvious to anyone showing a small amount of care that there was no consent, in cases where it really wasn't obvious then I'd let the court decide what is appropriate.

As to jurors - we just do the best we can. Sadly on sexual matters that probably isn't very good. A prostitute, or even someone who has had many sexual partners will almost never persuade a jury that rape took place without very good extra evidence. Under our legal system, where you assume innocence, I would operate on the basis that no crime has been committed unless there are wittnesses or evidence of struggle. Whenever there is evidence of struggle, I would assume rape unless there is a very good explanation (with evidence to support it). This of course means that some people would have to take more care (and genuinely make written agreements before some sexual behaviour), and I would miss lots of occurences of rape, but given the principle of innocent until proven guilty, I think this is the best we can do.

I would not be surprised at all that courts often side with the alleged perpetrator. This assertion is based on my belief that all alleged crimes have two factors:

1. Did the event actually take place?
2. What was the intent of the parties concerned?

Murder, burglary and ABH (actual bodily harm) are all classified as crimes if the mere event takes place; the intent is only taken into account during sentencing. This is in total contrast to rape where the event (sexual intercourse) is not in itself illegal; the crime is all in the intent.

I would argue from the previous paragraph that it would be unwise to view all the crimes in this comment as the same. A mistake at this low level would lead to bad judgments and be a disservice to the victims of these crimes.

Also, note that at no point did the article state the gender of the parties involved; it simply wasn't required for the thought experiment. I therefore have no opinion on whether certain groups have differing rights, or on what basis such rights could be conferred.