“Is This Rape? Sex on Trial” – a critique
The programme “Is This Rape? Sex on Trial” could have been brilliant, albeit with a different title. Here was an opportunity to educate around the law on rape. Yet the legal definition was given briefly at the end. It’s taken that everyone knows what rape means, yet this programme, for one thing, demonstrates that it is completely misunderstood, with rape myths being prolific.
The offence of rape comes under section 1 of the Sexual Offences Act 2003.
It states: A person (A) commits the offences of rape if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
(b) B does not consent to the penetration; and
(c) A does not reasonably believe that B consents.
It then states that “Whether a belief is reasonable is to be determined by having regard to all the circumstances, including any steps A has taken to ascertain whether B consents” (my emphasis).
Consent is explained further at sections 74: “…a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.
See the part I’ve emphasised: the onus is on the man to take steps to ensure he has consent. The onus is not on the potential rape victim to express their lack of consent.
A group of young people, separated by gender, viewed a video and were then asked about their opinions as to what had taken place between a young man named Tom and a girl named Gemma. In my opinion it was clearly a rape, with a man penetrating a girl’s mouth with his penis. The legal definition was not given but the boys first were asked “What happened?” and a boy replied “He put his dick in her mouth”. They were then asked about whether Gemma had said no and if she’d pushed him away. Why? Given the definition above, why were they asked this? That a victim should have vocalised no or pushed their rapist away are rape myths. Why highlight rape myths if you’re not going to highlight that’s exactly what they are – myths. The host then asked “Did Gemma consent?” and, reassuringly, the first responses were that it was rape. Comments included “She was unconscious”, “unresponsive” and “Just because someone hasn’t said no, it doesn’t mean they’ve said yes”.
However, we then moved on to a laughing young man who commented that the others had “assumed he [Tom, the boy in the video] was some weird psycho predator”. This highlights one of the biggest rape myths of all. That it’s obvious who a rapist is. He’s not a “normal bloke” you could be friends with. He’s a horrible, nasty stranger who practically has a sign on his head labelling him a “rapist”. This theme continued when the group discussion carried on, with comments along the lines of “rapist is too strong a word”. Tom was said by one to seem “like a normal guy at a party”. Well, they are. Rapists are your average, normal man, they’re more often than not known to their victim and this is something that could have been explained.
Victim blaming language continued in the boys’ group discussion with comments that Gemma could have pushed him away and she was “not completely innocent”. The laughing boy from earlier even stated it was 80% to 20% (what does that even mean?). He had also referred to Gemma agreeing to Tom getting into the same bed as her “in the end”, allowing him to kiss her “in the end” and allowing him to put his penis in her mouth “in the end”. Does he really think that’s ok? Tom pressured Gemma to allow him to get into the same bed and she gave in. She was clearly reluctant. How on earth is that seeking consent for anything further?
As one of the boys rightly stated “It either is rape or it isn’t”, following the host asking “Is rape too strong a word?” Why was this asked? Rape is a horrible word, but that’s because it’s a horrible act. How about if you don’t want the label rapist you just don’t rape? Do what the law says and ascertain you have consent.
Following this discussion one of the boys said he’d thought the incident had definitely been a rape but having heard everyone else’s opinions he now wasn’t sure. Well done BBC3. Someone appeared to have a good grasp of the law but following hearing other’s stating rape myths and the host “playing Devil’s advocate” he now had doubts.
The discussion amongst the girls’ group was then shown and again the host asked “What happened?” and the first reaction was that it had been a rape. Again though, there followed a discussion where rape myths played out with comments like “She didn’t say anything like she wanted it but she didn’t stop it either”. There was even a remark that he was “semi-raping her”. Disturbingly there was a comment from one woman that the other girls were “throwing these horrible accusations around” about Tom. She had also said there are times you do things you don’t want as “you can’t be arsed to say no” and worryingly said “we’ve all been in a situation with a boy trying to force himself on us and in the end you just go ‘oh, fine, whatever’”. Another girl said similar and said it was wrong but then equally seemed to excuse a man for going ahead anyway. These women were potentially making disclosures of rape, even if they did not consider that had happened to them.
At the end of the conversation the host commented it was great there was a range of opinions. Again this was treated as something where rape and consent were open to a wide range of interpretation. Obviously at court each case is judged individually according to the evidence available and the issue of consent is a subjective test but this is done based on the law around rape and consent, not around individuals opinions coloured by their own ideas of rape (although granted their ideas will influence).
There was then a vote on whether Gemma had consented. The decisions were 13% stated yes, 54% no and 33% don’t know. If these people had been on a jury then this would have resulted in an acquittal.
The blonde girl who referred to “horrible accusations” previously said she’d voted that Gemma had given consent as she hadn’t done anything to stop it. She even stated that Gemma hadn’t given consent but then she hadn’t not given consent so came to the conclusion that she had to have consented. Had the law been explained properly to her would she have come to a different conclusion?
The next video the groups watched was Tom giving evidence in his trial for rape. Then Gemma being cross examined on the same parts. This is completely contrary to what would happen in a trial and again there was no attempt at all to explain the proper legal process. Gemma was faced with questioning that again tapped into rape myths. Now, admittedly that probably would happen as we so often hear of defence barristers referring to these, but it’s wrong and this was not balanced with her initial evidence while questioned by the prosecution barrister.
A further group discussion followed with the question being whether Tom believed he had consent. This time the blonde girl from earlier actually changed her mind and stated that she now believed that Gemma hadn’t consented, partly as she’d phoned the police. The host then pointed out this was done 2 weeks later but the girl said that didn’t matter. There then followed a disclosure of rape by another girl, who said she’d taken a year to report. She was then interviewed face to camera about this. With this BBC3 are identifying a victim of rape. Was the proper care and support put in place for this girl?
The next discussion moved onto compassion for the rapist with a comment that his life could be ruined over a misunderstanding and a girl who now believed that Gemma hadn’t consented actually saying she shouldn’t have taken it “this far when she could have stopped it”. Victim blaming that was not challenged apart from some of the other young people in the group.
Next a man who had previously been accused of rape was brought to talk to the group. One girl expressed her discomfort about this but this was challenged and her views appeared to have been dismissed. The host did then say false accusations are rare but did not highlight exactly how rare. Why did BBC3 not highlight the statistics on this? False accusations of rape are miniscule and smaller than false accusations of many other crimes. This man’s case was dismissed by a judge but we don’t know the reasons why. A case being dismissed by a judge does not necessarily mean the allegation was false. Again there was a failure to explain the law.
This led though to sympathy for a man accused of rape. And this was then a factor in their discussions on whether Tom believed he had consent, with one boy saying Tom had done something morally wrong but basically saying it wasn’t worth ruining his life over. The vote then took place as to whether Tom believed he had consent and this came out as 54% yes, 30% no and 16% don’t know.
One of the reasons given for voting that Tom believed he had consent was the fact that he and Gemma had been in a relationship previously (although it would appear that full sex, either oral or vaginal had never happened) and that she allowed him into the bed.
The next video shown was the prosecution case, with Tom being cross examined. Again completely out of synch from a real trial. Tom accepted under cross examination that Gemma hadn’t responded to his advances. He admitted being drunk. He also answered that Gemma’s hands were flat and his held the back of her neck. Gemma’s questioning was shown and she said she had frozen. Text messages were referred to that Tom had sent admitting Gemma hadn’t done anything in response or “been into it”.
There then followed a further group discussion where the question under discussion was “Is this rape?” and the host stated that the group think “miscommunication lies at the heart of this story”. One boy then said how Tom had referred to Gemma being “into it” and he’s heard friends say the same where the girl has said he was all over her and she didn’t like it. A girl then said all the girls in the group had either had it happen to them or someone they knew. The blonde girl stated that having watched the video now she would not report if something happened to her as the girl is blamed. Yet, she was the one earlier blaming Gemma.
A rape victim was then brought in to talk to the group. With her, the host stated “she says she was raped”, implying that it may not have happened. She gave her account of her rape where she had gone home drunk with a man who’d raped her after she’d passed out. She didn’t report for some time as she blamed herself and felt others would blame her. She stated that she still blames herself and others do which makes her feel ashamed.
The group discussion then focused on concern of calling Tom a rapist. One person stating that as he didn’t set out to rape then the term was too strong. The woman who’d made a disclosure of rape then became emotional and asked what the hell everyone was talking about and could not think what happened was not “that bad”.
A final vote then followed.
Finally, the group were then educated on the law with Abigail Husband, a barrister being brought in to advise them on the law as to rape. She set out the law and stated that what happened between Tom and Gemma was rape. Despite this one woman still said that as the criminal justice system stands with the effect on Tom’s life of a rape conviction he should not be convicted of rape.
The result of the vote was then revealed with 87% saying it was rape, 4% saying it wasn’t and 9% saying they didn’t know. This vote being made before the advice on the law. Based on those figures had these people been on a jury this could well have resulted in an acquittal (with a majority verdict allowed, a conviction is possible with 10 of them voting to convict if a majority verdict was allowed by the judge).
The host then stated that a conviction of rape automatically resulted in a 7 year jail sentence. I fail to see where he got that figure from. Each case is decided on its merits. The maximum sentence for rape is life. The range of sentencing for this type of offence is 4-7 years with a starting point of 5 years.
Again, despite the law having been explained a few in the group felt sympathy for Tom and did not feel he deserved a long prison sentence. The woman who had made a disclosure of rape then stated a rape was one of the most painful things someone could go through and by that she meant the effects afterwards, the “years and years of emotional turmoil” and “it’s not fair what a rapist will do to anybody”. I hope she has been properly supported following her taking part in this and making these disclosures on TV. Was any care taken before the recording to find out if anyone had been raped or sexually assaulted who could be triggered by taking part?
Finally some of the participants were interviewed individually with one boy stating his realisation that “everyday people can end up doing what is classed as rape” and another concerned he may well have raped someone in the past and not known.
There are huge concerns with this programme but it highlights the misunderstandings around rape and how prevalent rape myths are. We can, from this, understand why the reporting of rape is so low and convictions not higher. It could have been done so much better though. Why not highlight the law from the start? Why not point out rape myths instead of the host being the one bringing these in? These are all covered in detail on the CPS website (see below). Here was an excellent opportunity to challenge these and hopefully dispel them with the participants and viewers. During much of the commentary there was reference to Tom being drunk and him “misunderstanding the situation” because of this. In fact under the sentencing guidelines for rape the commission of the offence while under the influence of alcohol is an aggravating feature. Why was this not explained? The law around rape and consent was explained at the end but what about those viewers that only saw part of the programme and viewed only the parts where rape myths, victim blaming and sympathy for the rapist were expressed? The section of the legislation I highlighted stating that the man needs to ascertain he has consent was not discussed in any depth at all. Although the police sometimes have questionable campaigns that focus on the victim’s behaviour this video shared by Thames Valley Police on consent is worth watching. This programme was a great opportunity to educate people on the laws around rape and consent and it was missed.
*Admin: This post was edited following the retrial of Ched Evans.
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