Why is rape special?

Help me out here, because I think I must be missing something.

I ask because of this:


Now, I’m not a lawyer (as should be obvious, really), and I labour under the (possibly false) assumption that those accused of a crime are, before the law, innocent until proven guilty.

This is why, in criminal cases, there is a burden of proof placed upon the prosecution – the defendant must be found guilty beyond reasonable doubt.

Blackstone’s formulation says that "It is better that ten guilty persons escape than that one innocent suffer".

There are a number of things that I don’t understand about the claim that this new initiative represents “a move into the 21st century”:

The naive interpretation of this “move into the 21st century” would be that this is “progress”. I don’t see the voilation of Blackstone’s formulation as progress. Perhaps this “move into the 21st century” is just that. The direction in which this move takes us seems not to be forward to a more just system, but backwards into a less just one. Have I got this wrong?

More widely, and to come back to my titular question, why is rape special?

I’m not trying to trivialise rape – it’s is an incredibly serious offence, with potentially lifelong effects on the victim, depending on the nature of the event and the demeanour, resources and resilience or otherwise of the victim.

But I am questioning whether it’s special in so far as the victims of this crime are entitled to any rights which are not afforded to victims of a burglary, mugging, serious assault or other life changing infringements on the person or their property.

More importantly, in recognition of Blackstone, I question whether those accused of rape are to be stripped of the rights and protections afforded to those accused of burglary, mugging, serious assaults or murder?

Consider the person facially disfigured by a knife attack, rendering them unattractive and more limited in their opportunities to find as good a quality of life partner as previously. Or an assault rendering a person unable to start a family should they wish to. Or someone whose arm, leg, neck or back is broken by criminal act whose career and/or hobbies are curtailed.

Consider the physical, emotional, financial and social costs of these consequences of violent crimes.

Then I ask if this is the thin end of the wedge of justice denied. After all, if the undermining of hundreds of years of principles of criminal jurisprudence yields perceived benefits for the victims of rape, why would those benefits not be extended to the victims of the other crimes I mention above?

What are the chances that this special privilege will only ever be afforded to the victims of rape?

I can only see this whole thing as a terribly retrograde step away from true justice, and I hope it is duly dismissed as utterly incompatible with the principles of a free and fair society.

Any thoughts?


UPDATE: Words elsewhere

Breitbart.com: The New Rape Rules Which Will Infantilise Women and Criminalise Men

Imagur: UK: if you act “normal and reasonable” after a sexual encounter, it could be used against you as evidence of rape.

Guardian: Rapists use social media to cover their tracks, police warned


5 thoughts on “Why is rape special?

  1. Swap the gender, and what is different to the law of a certain hobby group who demend a woman must produce four members of the opposite sex to prove she said “No?”

    This is no advance, it is taking the rules of a near bronze-age cult into the legal system of a so called advanced country.

    Are men now meant to take a defence lawyer, a contract lawyer, a Notary public to write up the contracrt, and an independent witness on every date now?

  2. Dear Al Jahom

    Like the imposition of double jeopardy, erosion of habeas corpus and restrictions on trial by jury, this is a further stripping away of our Common Law heritage and its replacement with a more continental way of doing things: guilty until proven innocent.

    These are instituted on emotive issues, but set a precedent for more general use in a few years’ time.

    Time we ditched the lot of our current politicians and started afresh.


  3. Al Jahom:

    Shut up! Shut up! Shut up! Shut up! Shut up! Shut up! Shut up! Shut up! Shut up!

    You are speaking common sense, and this is sooooo wrong! Shut up!

    First, you are insulting women… well, you must be, as ONLY women can be raped, so you obviously hate, hate, hate them to suggest that they should offer PROOF that rape has occurred. Any fool knows that, if a woman claims she has been raped, she has been raped; that she might have said, “Okay, let’s go,” beforehand is utterly, utterly irrelevant.

    Men are, as a matter of course, guilty of whatever they might be accused of, so SHUT UP!

  4. Hey there. Interesting post, and good analysis.

    Before I give any thoughts, let me say that I agree with you. Sexual crimes are complex and difficult to deal with in the evidentiary sense, but I don’t believe that having to prove consent in order to establish rape has occurred should, on its own, be sufficient to find someone guilty of the crime. That said, I haven’t seen the proposed changes to the law, so curious to find out the context surrounding this, and the other factors that may be involved.

    Now, whilst I agree that this is not an approach I would wish to see taken, I do have some thoughts on why rape is distinguishable from assault, murder, etc. These are off the top of my head and typed out on my phone, so bear with me!

    Unlike assault, or other crimes against the person, rape stands out because of its nature. The act itself could well be perfectly legal in of itself, but it is on the ‘active consent’ that the criminality hangs. In contrast, it would not be a defence to show that an attack with a knife was consented to by the other party. (There are exceptions here obviously, such as boxing, but the general principle remains). Because of this conceptual difference, the law has often tried to deal with rape in a sort of quasi-contractual way.

    The truth is that nobody really knows how to handle rape in legal terms, and the law is struggling to adapt to cover it adequately. The problem is that it doesn’t fit into any of the established norms, and at present boils down to whether somebody said yes or no… Not just at the start, but the whole way through. Naturally, there aren’t often witnesses to the events either, so a whole different set of evidentiary requirements have to be considered.

    As I said, I am not trying to defend these moves at all, but rather offer some insight into why rape is treated differently by the law.

    Disclaimer: I am a lawyer, though Scots law (which treats sexual offences differently), and not practicing in the criminal field.

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