TRIGGERnometry - Is Rape Culture a Dangerous Myth?

Episode Date: April 19, 2020

Luke Gittos is a solicitor practising criminal law and legal editor for Spiked. He is also the author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans Support TRIGGERnometry: Paypal: https://bit.ly/2Tnz8yq https://www.subscribestar.com/triggernometry https://www.patreon.com/triggerpod Find TRIGGERnometry on Social Media:  https://twitter.com/triggerpod https://www.facebook.com/triggerpod https://www.instagram.com/triggerpod About TRIGGERnometry:  Stand-up comedians Konstantin Kisin (@konstantinkisin) and Francis Foster (@failinghuman) make sense of politics, economics, free speech, AI, drug policy and WW3 with the help of presidential advisors, renowned economists, award-winning journalists, controversial writers, leading scientists and notorious comedians. Learn more about your ad choices. Visit megaphone.fm/adchoices

When you fly with Hawaiian Airlines, it's hard to tell where your flight ends and vacation begins. Relax with Free Starlink, the fastest Wi-Fi in the sky, thanks to T-Mobile. Go ahead, stream your movie. Book the couple's massage. Make a dinner reservation while we bring you to our island home. Hawaii starts here. Hello and welcome to Trigonometry. I'm Francis Foster.

I'm Constantine Kishin. And this is a show for you. If you want honest conversations, we're fascinating people. Our brilliant guest this week is a lawyer and a columnist at Spike. Luke Gittus, welcome to Trignometry. Thank you very much for having me. It's great to have you. Before we dive into the interview, for anyone who doesn't know who you are, just tell us who are you, how are you where you are. What has been your journey through life? Well, I'm a lawyer. I practice criminal law. I've been practicing criminal law for 10 years.

and for about the same amount of time I've been writing for a magazine called Spiked I've written a couple of books and sometimes I go on the television Yeah We're delighted to have you I should confess back We did an interview with you

About a year ago It was a brilliant interview And then the hard drive On which that interview was stored got dropped Woeful incompetence Yes, woeful incompetence on our part You should sue us Yeah I think so

But we're delighted to have you back Because it was a great interview on a very difficult and controversial and challenging issue that I thought, you know, you covered beautifully, which was rape culture. And we talked about it at length. So, and I remember as part of it, one of the questions that Francis asked you was, isn't one of the reasons that we talk about is that we have an awfully terrible conviction rate for crimes like rape? And you proceeded to destroy him for about 10 minutes and you said that everything he said was untrue. which was my favorite part of any trigonometry interview ever.

So we have this conversation about rape culture. Just first of all, tell us what that is and what people mean when they talk about that. Well, actually tracing the origins of the idea of rape culture or the idea that we live in a rape culture, it's quite hard to identify where that term comes from. There's a couple of cultural uses from it in around the 1980s. I think it's used first in a television series.

It then gets picked up by academia in the 80s and 90s. And effectively, it's a term which attempts to describe today's society and claims that cultural factors, misogynistic media, a sexually biased justice system, contribute towards the prevalence of sexual violence. And I wrote the book that I wrote about it five years ago at a time when time and time and again, the term was being used to claim that something about today's culture contributes to the prevalence of sexual violence. The motivation for writing the book was to engage with what I thought was quite a misleading climate around this issue. I've been working on these cases at that

stage for about five years. And I think it gave an insight into the fact that this is one of the most, in fact, probably the most complicated offence on the statute book is the most complex and difficult case crime that the courts have to deal with for so many different reasons. I think in the majority, or at least a sizable chunk of the rape allegations that come before the courts, juries are often asked to make very, very fine distinctions, often about the real minutiae of people's behavior. And the stakes in these cases obviously could not be higher. On the one hand, you have a complainant who has made a complaint of one of the most serious crimes imaginable. And on the other hand, you have someone accused of the most serious crime imaginable.

And often we're talking about people at the outset of their lives on both sides of this equation. So we know from the most recent statistics that about a third of all rape defendants are under 24 years of age, and about 65% of rape complainants are under 24 years of age. So it is a crime that has a huge effect on people right at the outset of their lives. And either way, the court has the potential to destroy one party's life meaningfully. I mean, arguably, a victim of rape has already had an enormous trauma and is suffering enormously. But it should be clear that the stakes at play when we consider these offences are absolutely enormous. So the purpose of writing the book was not actually to wade into what I think back then had

become a kind of broadening on a culture war between one side that said rapist everywhere, everyone is at risk, men are inherently misogynistic and all of them are vulnerable to becoming rapists, which I don't think is true. But not also to dive into the other side, which was a kind of cultural conservatism that said, oh, well, women are partly to blame for what they wear and they should, you know, make sure they dress appropriately when they go out and a night out. They shouldn't drink as much, which is not true either. The reality is a very complicated mix of factors, which I'm sure we'll get into. And the purpose of the book was to kind of try, if possible, to rise above the fray of the discussion that was happening at the time,

which had become fevered, inaccurate, often throwing around statistics in a very narrow and manipulative way, the book was an attempt to sort of take an honest look at the problems, to take an honest look at what was happening as far as we possibly can in our courtrooms, and then to test the claims of the people who were saying we live in a rape culture, and hold them open to scrutiny because I think that the severity of these crimes and the stakes at play in these cases mean we have to be honest, we have to be searching, and we have to interrogate the claims that both sides make about them. And the book was a kind of modest contribution to that effort. And I mean, the problem

with this crime is, is, you know, the level of feeling on both sides of it. I mean, you even look at the case that happened in Cyprus. Now, I've only been following it. But, you know, you have, you know, on one side, you know, the people who have been accused who were then acquitted, who then seen themselves as, you know, they were right, they were correct. And then you have the girl on the other side who was, you know, went into court covering her face. I mean, how do you deal with a crime like that, which is so, I mean, all crimes are polarising, but particularly in something like rape. Well, so taking the Cyprus case first is incredibly difficult to say anything about because we know nothing about the specifics of the allegation. I think our first order position should be

to trust in general that the Cypriot justice system is working. That should be the presumption. and then we test and investigate further, who knows what happened in the course of that case, and I can't really comment. But I think you're right to say that these cases generate enormous emotion on both sides. But I think what is often missed in the contemporary debate or the headlines that feature around it,

and this is starting to change actually, but one thing that used to be missed was the catastrophic impact it has on both sides, because often the discussion rightfully focused on, complainants and victims of sexual violence because obviously the impact is catastrophic. But there is another side to the coin. And often when you go into these cases, if you look at the background and you look at the evidence, one of the most shocking things I found from looking at these cases was that often two people had a fundamentally different account of what took

place, but also they had a fundamentally different understanding of how to interpret what took place. so two people can come to these cases with the same understanding of what factually occurred, but different understandings as to how to interpret it. And I think if you put yourself in the mind of someone who is accused of this crime and say, well, I went into that interaction that I had, that sexual liaison that I had, and I came out with a completely different understanding of what had happened, and I'm now accused of the most serious possible question, crime facing 10 years in prison, it's important that we acknowledge that that dynamic has to be

taken seriously. We can't simply say, well, every conviction is good. Any fall in convictions is bad. We must charge more people. We must prosecute more people. That is a far too simplistic approach to take to this offence, which by its nature involves a great deal of moral complexity. Well, one of the common slogans, if you like, of the people who talk about rape culture as being a real thing is that the conviction rate for sexual offenses is incredibly low. People say the conviction rate for rape is 3%, etc. And this is something I've heard over and over and over. But of course, in your book, this is one of the things you talk about. So give us your views on that idea.

So the 3% conviction rate is a complete myth. the conviction rate currently for rape offences in England and Wales is around about 78%, which is actually unusually high. The reason for the confusion is that people are confusing the attrition rate with the conviction rate. Now this gets technical very quickly, but the attrition rate describes the percentage of allegations or reports to the police, which are flagged up as rapes, which end eventually in a conviction. And that figure oscillates between around 3% and 6%. There's all sorts of reasons why cases fall out of the justice system

between when the report is made and when the case is finally disposed of at court. That could be because the person making the complaint is simply mistaken about what they're reporting. So the number of reports will include reports made by third parties or people completely unrelated to say, oh, I think I'm hearing something here, that will be bounded up in that initial set of reports. So that initial number will be narrowed down because quite simply most of the calls will not

relate to an actual crime that's taken place. And then throughout the different stages in the justice system, there are reasons why cases drop out. The evidence might not be adequate enough, which means that the CPS won't charge the case, which means cases fall out at that stage. and what you end up with is this figure of between 3 to 6% of the reports made initially that end in a conviction. Now, what's important to remember is the attrition rate for rape is not particularly low when considered in relation to like-for-like cases. If you look at offences like burglary or GBAH, the attrition rate is roughly the same because in relation to all crimes, there's going to be an enormous amount of initial reports that don't get taken forward for a number of different reasons. but there is nothing to say that the attrition rate for rape is particularly low. In fact, that's the attrition rate that people usually talk about when they say 3%.

The conviction rate is the rate of cases which reach court and end in a conviction. Now, there's other complications and caveats to that, but the conviction rate for rape has been high and has always been high. In 2013, it reached an all-time high at 63%. percent then. It's now at 78% on the latest statistics. So by the time a case gets into court, 78% of those cases will end in a conviction, which is way more than half. Okay. So three out of four people who get charged with rape and that gets taken to court will be convicted of. No. So, you're right. Yeah. I'm telling you, so the more you delve in, so the language you use is very important because it's not, so

you have various stages of a case. You have people getting charged at point X. That's after the investigation is concluded and when the prosecution formally begins. But those cases can fall out before they reach court. The conviction rate refers to the percentage of cases that reach court and end in a conviction. Now the additional complicating factor is not all cases that reach court on an allegation of rape will end in a conviction for rape. And the Ministry of Justice statistics taking this into account where the CPS statistics don't. I'm telling you, it gets technical very quickly. But so there is some evidence from the Ministry of Justice statistics that the figure of 78% won't necessarily correlate with 78% of people being convicted for rape. They might be convicted

for something less. But nonetheless, once the cases get to court, there is a good chance that the person accused of rape will be convicted of rape. If you look at the research, the only research that's been done recently into real-life juries that was conducted in 2010 by the Home Office commissioned a commission an academic I think at UCL. The findings there was that there was juries were consistently, as of 2010, more likely to convict them than acquit. So they were more likely to convict rape defendants than they were to acquit them. No evidence whatsoever of racial bias or bias against women who wore anything particular or or had any particular attitudes.

So, and no evidence whatsoever that once the case got in front of the jury, that they were biased against rape complainants. So the key message from all the research is to trust juries. And one of the reasons why I was worried about this issue was because it's so often used as a stick to beat up the jury system. You know, the allegation is that juries don't understand these cases, they get them wrong, they don't convict. but actually, if you look at all the figures over the last 10 to 15 years, the conviction

rate is consistently high. There are all sorts of other problems which we can come on to talk about as to why that number of reports don't progress, because there are absolutely real problems with the way this offence is policed, absolutely under-resourced, and the police often struggle and are often held back by a whole host of different factors. But once the case gets to court, there is every reason to believe that that case is. will be given a fair hearing. And it's part of the problem why the reason why there's that fallout of cases in between

the attrition rate and going to court, the fact that rape is a very, very difficult crime to prove. Because a lot of it, it comes down to what he said, she said, or am I getting this completely wrong and I am now a toxic figure for saying this? No, you're not getting it wrong. I think what you need to, there are a number of facts. which could contribute to cases falling out. Okay.

So firstly, you're right. Often, not always, but often, rape allegations involve one person, as I said at the beginning, coming forward and saying, this is how I experienced this interaction. What the police ought to do is take that seriously, investigate to the best of their abilities, marshal any resources they have to investigate the veracity. of that allegation and find out whether there is a basis in fact. I'm afraid what often happens is that the police can take a derisory attitude to complainants. They say, oh, well, she was asking for it.

That does still happen, undoubtedly. Even if they don't explicitly say, oh, she was asking for it, I'm sure she was up for it, or something similarly appalling, they will simply take a relaxed attitude to actually investigating the case. So one thing we see time and time again is the police simply not. taking the steps that they would do if this was a robbery or a murder case because they think, well, there's no big pressure because we'll eventually be able to dispose of this in a way which covers our back, but which doesn't pay proper credence to the veracity of the allegation.

So there's all sorts of issues with the police. But why is that? Sorry to Inter, why would they care less about rape than they do about it? Well, let me take that generalisation I've just made and qualify it, because there are also incredibly voracious and eagious and eagerness. detectives out there working on these cases. I've seen examples of both. Detectives who take a relaxed attitude and detectives who will go way beyond what you would expect in trying to prove a particular allegation. And I think that culture in the police is really starting to change. We had a report in 2005 from Dame Angioliani who cited this as a problem that under-resourcing and perhaps retrograde

attitudes had led to cases falling out. And I think since then, things are starting to change. You do have specialist officers who are desperate to get results in particular cases. When it comes to, I think the answer to your question, Constantine, is why do some officers take this approach? Because I think generally, there are still officers out there with quite old-school retrograde attitudes about sexual morality, which say, you know, if she was out in a nightclub wearing a short skirt and she went home with a bloke, then she probably consented to have sex with him. that's an appalling idea. I don't think it's common among the police,

but I think those attitudes still probably exist. But isn't that what people talk about when they talk about rape culture? They do, but the claim that they make is that that is so pervasive that it can explain the prevalence of sexual violence across society, which I don't think is true. I don't think those kind of attitudes

are so prevalent that it's enough to explain the prevalence of sexual violence. What we know about sexual offenders is that when you look at the vast majority of people we would consider sort of serious sexual offenders. They are serial offenders and they're a very small portion of the population, which is hardly a surprise. The actual people that go out and target women for sexual violence

is a vanishingly small percentage of the population. And those people are not affected by culture. There is no evidence to suggest, for example, there was a lot in the 80s and 90s. Research is trying to prove the connection between sexual violence and pornography. So again and again, academics have tried to prove that the more you watch porn, the more likely to engage in sexual violence. And even when you look at people who are watching violent pornography, there is absolutely no connection between people who watch violent pornography and the prevalence of rape. Even less so, is there a connection between other, you know, some of the factors that are sometimes talked about as contributing to rape culture.

You know, when I wrote the book, the song, the Robin Thick song, it's a ridiculous song. You know, she wants it, all that sort of stuff. that was cited as contributing to rape culture. So the idea being that this song plays a part of a culture which encourages young men to commit sexual violence. And of course that's ridiculous, but what happens is that what started to happen was men who were actually convicted of sexual violence

started blaming the culture that they were raised in. So I remember a number of times, rape defendants who had been convicted started coming forward and said, well, I couldn't help it. I was part of a culture that encouraged me. me to do it or sort of subliminally forced me to do it. Didn't Ted Bundy also do that? Well, there was, yeah, there was, I think that's right that he had, but I think it's a common trope among people who, especially who commit violence against women. Yeah. They feel able to

rely on cultural influences to explain away their behavior. And I don't think, you know, even the most sophisticated people who argue for the existence of a rape culture, don't go so far as to say that they have no, that these people have no agency. They just say that it sets a context for their behavior. But I do think it's a slippery slope when you say, well, because that rugby club listened to Robin Thick and was dancing around being idiots, that makes them more likely to commit sexual violence. Well, then it's a natural step for someone who is eventually convicted of sexual violence to turn around and say, well, you know, how can you blame me? I'm part of a culture that's inherently misogynistic. I'm not entirely responsible for my behavior. And when it comes

to considering criminal cases, actually those fine argument, you know, the kind of the little bits of influence, actually to do meaningfully detract from people's agency. You can make an argument that if someone, for example, has a mental illness, they still have agency, but their responsibility is diminished. And that's why the people make these arguments, because they're saying their responsibility is diminished. Now, I think that, you know, when it comes to people who, the other thing I've learned from looking at these cases is, when people commit these offences and the cases that you look at which are pretty cut and dry, you can see that they're going out and making a moral choice to behave in the way they are.

They're making a decision. And often when you sit down and talk to them, you can see that this isn't the result of something cultural. It's a moral decision that they have made. They've decided to go out and commit an act of violence. and this is another, just to follow that up, the feminist, what's one very interesting change is that that's occurred in the kind of feminist discourse around rape and sexual violence is that in the 80s,

rape was considered a crime of power and violence, and there was an attempt to, by academics, people like Jermaine Greer and others, to divorce rape from sex, because the two are very, very different things. In fact, when someone raped someone, that's not a sexual act, it's a violent act. We've lost that distinction now.

And the discussion that we have today tends to conflate rape and sex and rape and sexual etiquette in a way which is very troubling. And so when I make the argument that when someone decides to go out and commit an act of sexual violence, they are going out to commit an act of violence. They're not going out just for sexual gratification.

they're going out to exert power over someone. And that's an understanding we've had for a long period of time. But now, because of this argument around rape culture, we conflate people like Robin Thick, who likes to dance around with women in their underwear, with rapists, which is a very peculiar conflation to make considering the history of this discussion. Because you never in the past would have understood rape

as a mere extension of someone's sexual preference or a development of a particularly sort of sexualized piece of art, you would understand it as a violent moral choice made on behalf of the rapist. And I think the danger is losing that distinction actually has some quite troubling consequences, I think. Look, I spend a lot of time telling you what's wrong with the world, so let me tell you about something that's actually right. Sleep, specifically getting more of it, better quality, the kind where you wake up and feel like a human being,

rather than someone who's been thrown down a staircase. Most mattresses are just layers of synthetic foam and crossed fingers. You're spending a third of your life on the thing, and most people have no idea what's actually in it. Avocado green mattress is different. Their mattresses are certified organic, built from natural materials, designed to actually support your body properly rather than just hold you in one position until morning.

The craftsmanship is real. These are mass-produced objects. Someone has put thought into them. I'll be honest. I'm not the person who thinks carefully about where he sleeps. My dating history will tell you that. I'm the person who's been on the same mattress for eight years and called it fine. But the older I get, the more I notice that fine isn't actually fine.

Your body tells you, if you're going to invest in anything for your home, your bed is the one that pays you back every single night. Avocado products are made, not manufactured, and thoughtfully crafted with real materials to deliver lasting comfort and support. Go to avocado green mattress.com slash trigger to check out their mattress and furniture sale. That's avocado green mattress.com slash trigger. Avocado green mattress.com slash trigger. We're delighted to have a brand new sponsor for those of you who are interested in learning a foreign language.

Mate, we've got a predominantly British audience. None of them are going to be interested in learning a foreign language. Yeah, that's true. Also, no one is really traveling right now to foreign countries. Let's be honest. But when the coronavirus is over, those of you who are still left on this planet might be interested in second language. And that's why Babel is a great place for you. Babel is great because they have a website and an app which allows you to learn a new language with 10, 15 minutes snippets every day in a clear and simple way, which is great for people like Francis who are simple. Absolutely. And also as well, when you're in quarantine, what else are you going to do? You can try Babel completely free. Simply head over to Babel.

dot co.uk or download the app and you can try it completely free. That's right guys. Go on to www.babel and that is spelled BA-A-W-B-E-L.com.uk or download the app and make that time in isolation fly by. And I was going to ask, so you obviously look at all these people, the vast majority of whom, in fact, well, I imagine all of them are men. But are there any other common patterns between these types of people who commit these crimes? Or is it just people from every part of society, every colour, all the rest of it? Yeah, I don't think you can make any generalisations about colour, class, or anything like that, really. I mean, the law is crafted, by the way, so that only men can commit rape.

You have to penetrate someone with a penis. And although that, you know, it might be a hostage. Hey, hey, let's not misgender people. I know, we've got to be sensitive. But it is still true that. Yeah. I'm afraid at least when it comes to this area of the law, we are quite strict on biology. So women can't commit rape.

They could commit conspiracy to rape if they planned to assist someone else. So it is only men who are charged and convicted of rape. Women can be convicted of sexual assault, all other sexual violence, but the law requires penetration with a penis when it comes to rape. But no, I don't think you can generalise. But I think I would draw a distinction between two sets. of people, what I've experienced is that this offence has the capacity to draw a wide net of people into the criminal justice system who I don't believe should be there. I think that's true.

Primarily because, as we've discussed, allegations are easily made and difficult to prove. And so people can often, you know, and I think the discussion around this has really started to change since 2018 because we saw cases like Liam Allen's where Liam spent something like two years under investigation. Having been charged was about to face trial, and it was only on the eve of his trial that the Crown Prosecution Service disclosed text messages completely disproving the allegation against him.

And that's a young man who could have used that. He would have been totally justified in having his life completely turned upside down. I mean, he did have his life turned completely upside down, but luckily he's been able to come back from that. But these are the stakes that we're playing with, and this is an offence with the capacity to draw more and more people into its net in a way which perhaps robbery, murder or burglary,

you know, most people won't ever be accused of burglary, murder or violence without some basis. When it comes to sexual violence, the lines are a lot more difficult to draw, because, as you've said, it often involves one person's word against another. It can often involve the minutiae of people's behaviour and different understandings of how a situation played out. out. And where do you stand on, because we have anonymities for victims, which I personally, I'm in agreement with, I think that's a good thing. Do you think there should be anonymity for the accused? And if not, why not? I think, so anonymity for the victims came in in the 1970s. And initially, it was anonymity on both sides. I think I'm right about the 1970s. I might be

wrong. But initially it was anonymity for both parties, and then it was taken away for defendants. I think that creates a difficult dynamic. The presumption of our justice system is that it takes place in the open and that both parties are exposed to public scrutiny. I think you're right to say that there are benefits from complainants having anonymity because obviously giving evidence in court is a deeply traumatic process. However, I think that the presumption should be that everything should happen in the open. And I certainly don't think the answer to remedying the current,

I think there is a current inequality between the parties because one side has the entitlement to be anonymous and the other side doesn't. I don't think the corrective to that is to make both sides anonymous because we want to be able to scrutinise in the best possible way what happens in our courtrooms. You know, justice is meant to be done in our name. And the more that criminal justice processes are done behind closed doors, the more likely or possible that it is that things go wrong without us knowing about it. Now, there's all sorts of qualifications to that because people who ask for anonymity for defendants make the point that they could waive their right to anonymity to open up scrutiny, you know, and they would have control over it.

but I think there are other possible difficulties. So when people argue for anonymity for defendants, they often say that that anonymity should certainly be in place up until charge, and then once they're charged, then they should be revealed. But that actually creates a, that has real impacts for the presumption of innocence, because a charged person has not yet been convicted, is not yet guilty. And I think if you have anonymity up until charge, once someone is charged, it creates the idea that they should,

have their rights taken away. Well, why does the right to anonymity exist before charge and not afterwards? It shouldn't change. If you're arguing that defendants should remain anonymous, there's no reason to take that right of anonymity away at the charge stage because they're still an innocent person. They still should have all the rights of an innocent person. I think allowing anonymity only up until charge creates the idea that once they're charged, they're effectively open season a little bit. So I think that's problematic. So I mean, I think it's a difficult. argument to make, but I think that the proper response should be to remove anonymity entirely, with the caveat that we should take as many steps as we possibly can to make the process of giving

evidence easier. And we do. This year we saw trialing of pre-recorded cross-examination of complainants. That's a big step. It means that what used to happen live in front of a jury is now videotaped and played to them. Okay. And that's an enormous leap in favour of complainant's comfort at the expense of a defendant's traditional right of a fair trial because traditionally a defendant would be able to sit in court, watch the complainant be cross-examined, and that would be a robust exchange. Now that process can be, and this is only piloted and it looks like it might go further, be pre-recorded. I don't agree with those steps because I think we have to be honest with complainants that the criminal justice system has to be.

be and will inevitably be a deeply uncomfortable process to go through. I mean, when you make an allegation of rape or sexual violence, if you go to court, sadly, you are going to have your account tested robustly because otherwise the conviction that results from it is not going to be based on a fair process. We have to be honest with complainants and say, look, you've gone through. You've gone through through an appalling, you know, assuming they are genuine victims for a moment, you've gone through an appalling attack. This next bit is going to be awful, but it's an important process to make sure that if this, if your attacker is convicted, that they got the best shot possible at defending themselves. Because if you deny defendant the right to defend themselves against these

delegations or you dilute the powers and rights that they have in that process. The eventual conviction, I think, is increasingly diluted because they haven't had the best possible opportunity to test the evidence against them. So I think we need to present it to rape complainants and genuine rape and rape victims as a difficult, horrible process that has to be gone through in order to ensure that everyone has a fair hearing. And it's only if we have that, that the conviction that resolves from that process can be said to be sound.

Well, what about this? I'm sticking with the theme of rape culture. So you mentioned that there are some police officers who are still living in the 70s. You mentioned that the criminal justice system is essentially by design. It's a painful or unpleasant process to go through. you know, there's

even though you mentioned that there's data to show that what the woman was wearing doesn't affect the jury's decision. You know, we do see these stories like the Irish rugby players or whatever where that seemed to have been a topic of discussion. Isn't like when you put all that stuff together

certainly if I was a complainant in one of these cases I would think that the system is stacked against me, someone who's simply a victim of a crime as opposed to being stacked evenly or being stacked against the person who did this to me. Yeah.

And therefore I would feel like potentially, you know, we do live in a society which seems to, you know, not do its best at the very least to help me as the victim in that situation. There is some truth in that, and there is a risk of that, that when you pick up the phone to the police, that they're not going to do the best job they possibly can. That is a risk that all victims of crime face. but one thing I think is vital and this was pointed out in the Baroness Stern report from 2010

is that we can't be overly pessimistic with people making these complaints because then they won't come forward at all so we can point to an unusually high conviction rate once the case gets to court we can talk about massive reforms in favour of increasing the resources to the police greater understanding within the police

of how these complaints unfold and once the complaints unfold and once the complaint is made, people can be relatively confident that the allegation will be treated fairly and investigated. But one other point to make is that the system is stacked against complainants. Not stacked against complainants, but it is stacked against the state. So when someone makes an allegation, you're inviting the state to prosecute someone. and our justice system is set up so that defendants who are individuals have more have we have to try and level the playing field between an individual who's being prosecuted by a state who can marshal enormous resources against them so there is a sense in which the process is stacked against complainants but but it's that stacking against that actually makes the process fair because we have to bring the defendant up to the position of a level playing field with the state And that's a difficult thing to do.

But I think what, so just going back to what we should tell complainants about this process is, look, this is a crime that you're making an allegation of. The allegation must be investigated robustly and fairly. That will involve testing your account to make sure that it's true. And also that if later on, when the case comes before court, that we've tested it early to make sure that it can stand up to the kind of scrutiny it's going to get in the courtroom. Complaintance must be told. that once it gets into the courtroom, that process is going to be hard and they're going to be challenged. But none of this tells, should tell a complainant that they've got no chance of getting their case disposed of in a fair way because all the evidence suggests that assuming

everything goes right, and that's a very difficult assumption to make for all criminal offences because the police is under staff, the CPS are under staff, etc. But once it gets actually into the system, it has every chance of being dealt with fairly. And I think that's the That's one message we've got to put forward. Now, that's one aspect I find there's a real risk that we're overly optimistic. And people like me who work in the system come across as saying, oh, the courts work brilliantly and no one ever has any difficulties. That's just not true.

And I see probably the same amount of cases investigated well as I see investigated badly. But it would be wrong for complainants to believe that no matter, who they come forward to at the police, no matter what happens, they won't be taken seriously. And that sometimes is the narrative that is prevailing. And I think that's a dangerous one.

Hi, guys, we've got a returning sponsor this week, which is Beer52. That's Beer52.com. Now, before we go any further, you might notice we're on a little bit of a different environment, and that's because we're in my bedroom, or as it's otherwise known,

ladies, the pleasure done. Beer 52 have got a wonderful offer for you where you can get eight delicious, craft beers for a fiver. That's eight delicious craft beers for five pound. What can you get for five pounds? Maybe a pint in London? Maybe six chicken nuggets? I miss chicken nuggets. The great thing about Beer 52 is that every month they'll send you a different case of beers from a different part of the world. Recent themes have included Germany, the Alps, Korea. What? Is the Alps even a country? The Alps isn't it a country? So if you want to access this

incredible offer. All you need to do is go to www.com. Forward slash Trigger and you'll be able to get eight delicious beers delivered to your door. That's www.bibir52.com forward slash trigger and you'll get those eight delicious beers direct to your door. What else are you going to do? So recently one of Britain's most prolific rapists who got was arrested and convicted. I can't the young man's name. I think he was based in Manchester. Now, I think it was 136. I may have been slightly incorrect on the number of incidents that he's raped someone. And I read this, you know, and I don't know anything about this. And I think, number one, how is he able to get away with this for so long without the police tracking him down? Surely there must be some level

of incompetence there when it comes to policing investigations. How has he managed to slip through the net. And when we talk about rape, we obviously, we seem to, because we talk about women, but we don't seem to talk a lot about male rape. Is that because it's a very, very small issue and it doesn't tend to happen, or is it a taboo that we simply don't discuss? It's not a small issue for the people involved. Yeah. Socially, it's a lot smaller issue than it is for women. So I think about, it's about a tenth, I think, of the complainants, are male. the specifics of the case you're talking about, I mean, they were unique. This was a young man who had drugged people he'd found on the street. A lot of them weren't aware when they woke up

in his flat that they'd been attacked. And it was interesting. I got involved in a discussion about whether it was right for the police to, once they'd found the videos on the chap's phone, he was discovered by accident. He'd, so he'd made a complaint to the police about someone who he'd been out with. And it was only once they took his phone. they found reams and rooms of videos of this violence occurring. So they found him by accident, and he was the most prolific rapist in the UK's ever seen. So I don't think it's incompetence.

That was just a very difficult offence to identify, because a lot of the people had been attacked while they were under the influence of drugs that had been administered to them without their permission. But that's not to say that, I mean, male rape is a distinct, issue, but it's nonetheless a narrow section of the totality of the offending, I think. But that's to say, look, it's also true that we don't talk about it because it doesn't easily fit with the narrative that this is a culturally influenced problem. It fits a lot better when you understand

that rapes a crime of violence that occurs between both men and women. Once you understand it's a crime of violence rather than the crime of sex, you know, gender becomes largely irrelevant. So I think you're right in the sense that we should interrogate that side of the debate more. And I think it probably, the reason we don't talk about it as much, because it doesn't fit into the kind of politicized discussion we have at the moment. Well, you talk about the politicized discussion and the narrative. So if what you're essentially saying is that this idea of us living in a rape culture is a myth, which I think is what you're saying. I'm not putting words in your mouth by saying. Yeah. So the idea that the culture we live in,

fosters an environment in which sexual violence becomes more likely, I think, is a myth and a dangerous one, as per the title of my book. That's not to say there aren't, but the point of the book was to, the reason why the rape culture idea is a myth is because it's too simplistic by far. The reality, and that's not to say that all the claims made by those who argue that there is a rape culture are wrong. They're not. They just don't back up the argument that there's a rape culture. I get it. Yeah, but they kind of take a very narrow view and then expand it to a particular social theory, which I don't think is right.

So my question was going to be, why is it then if a lot of the claims that are made are not true and the broader allegation that we live in this culture is not true? Why is there this narrative? Why is it that, you know, I keep being told that I need to, you know, not listen to a song because I'm one song away from becoming a rapist because all men are potential rapist. When the evidence is quite clear that the people who commit rape are rapists,

not men, right? Why is it that we keep being bombarded with this kind of idea that all men are potentially violent in that way? Well, one thing that is interesting is I think that that argument is actually, one thing I've noticed, the difference between 2015 and now

is that argument's made less often now, which is interesting. You know, it has fallen away a little bit. If you remember back to 2015, this was everywhere. It was a real part of that, of the culture war in a way which now maybe perhaps slightly less. But I think part of the reason is that the origin of this idea comes from a particularly radical section of feminist academia, people like Brown Miller in the 80s who were saying precisely that every single man has the potential to be a rapist. and even most forms of sex are in some form rape,

you know, that they went as far as to say that. And those ideas were prevalent amongst a very narrow section of feminist academia for a while. And I think some of that influence still maintains among particular academic circles. So what we've seen, I think, over the last 10 years, is a shift from focusing on the material factors which prevent rape being dealt with effectively.

So, for example, in the 1980s, academics could point to particular laws, which, for example, a 24-hour limit on reporting, which was across a lot of states in the United States throughout the 1980s, they could point to a lot of concrete factors, which actually prevented rate being dealt with adequately. So I think in New York, if you didn't report rate within 24 hours, then the case just would not proceed, which is remarkable. They could also point to factors in English law, such as it was not against the law to rape your wife until, you know, the mid-to-late 90s. And there are a number of judicial decisions that they could point to which really stack the system further against the complainant. So there were real, in the past 80s and 90s, I think there are real concrete factors that were still in the way of dealing with this case, with this offence properly. As those have fallen away, what I think we've seen is a shift to focus. on individual attitudes. So in recent years you've seen the kind of explosion of research into what they call rape myths. And these are, it's psychological research into members of the public

and their attitudes towards particular offences, particularly rape. And they use the, so you'll see headlines very often that say psychological research says that, for example, jurors think that if you've been sexually assaulted, you should react in a particular way, where the research shows that victims of sexual violence react in a complex myriad of ways and not necessarily one way or the other. So we've seen a shift away

from identifying the concrete factors which prevent this offence being dealt with to focus on individual attitudes in the research. And that still allows a particular section of academia to propagate the idea that it's a cultural sociological

problem at the level of people, you know, people are influenced by the culture that enables sexual violence and they're so, they're so imbued with retrograde attitudes about women that this offence isn't being dealt with properly. But I do think that the reason why that remains a myth is because they ignore the real advances that, in part they ignore the real advances that we've had in dealing with these cases. You know, all those retrograde appalling laws have peeled away over time. And, you know, juries are now directed on not relying on myths like, oh, if she was wearing a short skirt,

she was up for it, you know, going into someone's house doesn't necessarily mean consent. They're directed with all of those things. We've discussed the statistics around jury decision making, which shows absolutely no evidence of bias. So there has been real progress in that regard. And I think that's why now we see this explosion of research into rape myths and rape myth attitudes. And, you know, there's real problems with that area of research. You know, one of the reasons I was drawn into this area to begin with was an old friend of who sadly no longer with us, Helen Reese, who was an amazing academic at the London School of Economics. And she got, she was very, very far braver than I was around this issue and published

papers around this area of research right as it was starting to get momentum. So she wrote a piece, a legal academic piece about rape myth research, just raising some questions about their methodology and about the questions they were asking. And there was an explosion of reaction from this particular section of academia. And it just struck me that for some sections of academic feminism, I think there's a lot at stake because this issue has politically galvanised them for a long period of time, and there's now a new generation of academics coming up that are practicing in this particular area. And that's not to say that they're not making an important contribution.

I think their work has to be situated in a broader context. which says that, you know, we shouldn't be frightening rape complainants and rape victims away from engaging with the system because it's not inherently misogynistic really anymore. And they do have a good chance at a fair hearing. A statistic that is always raised is the fact that the vast majority of people are sexually abused or raped by somebody that they know. It's very, very rare that you get your John Warboys, you know, sort of prolific sex offender who is incredibly predatory and praise on strangers. Most people

who do these horrendous crimes, they know the victims, they essentially groom them and then this happens. Is that true? And therefore, does it make it less likely that somebody will report it if it's somebody who is, you know, a beloved family friend, relative uncle, whatever? Well, there's very, I mean, you're right in the sense that most rape defendants are known to their victim. In my experience, a lot of the time known to is quite a broad category. So it might be someone at their university or someone who they've, a friend of a friend or something similar. I don't think it's, as I hope I've communicated, it's difficult to make any generalisations about who is more likely to than not commit these kinds of offences. But I think in general,

what this might reflect is that recent changes in the law have made it have broadened the definition of rape. I think that's a fair thing to say. It's broadly acknowledged that the changes to the law that came in in 2003 broadened our understanding of what rape was. And that was a very good development in some ways because you know, you don't have to go back that far to a time when people didn't believe that anyone who'd been on a date and had subsequently been raped, couldn't have been raped because they were on a date, you know, we just didn't accept that that was true. Now the category has widened to such an extent that I think a lot of sexual encounters

which once might have been understood as difficult or troubling now get recast as rape and sexual violence. I think there's a risk there. The risk of expanding the law is that more, and more of these interactions become drawn into that net, which I think we've discussed previously, but that might be one reason why people are more willing to come forward and make allegations about people they know, because our understanding of what it is has expanded. And that comes with benefits, but it also comes with risks.

And I think that's what we've got to understand, that there's a duality of it. It's not that, you know, we need to refine our understanding of rape to be very, very straightforward. And, well, we're only going to prosecute this, we're only going to prosecute that. need to understand that the expansion that's taken place over the last 20 years has benefits but also risks. And is there any truth? I know you said there's no correlation between, and, you know, and we shouldn't generalise, but is there a truth that people who are abused then go on to become abusers? Or again, is that another myth that has been? The honest answer is, I don't know. And the, but I think that it's very difficult always to, firstly, it's difficult to establish a correlation,

but then a correlation is never a causation. And I think the troubling, and every single statistic you can pick out around this crime can be interpreted in a thousand different ways. So that's what makes it very difficult to talk about. But the honest answer is I don't know whether there is even a correlation. But finally, you've asked a bad question, well done. It's happened once. Well, just before, we've got a little bit of time left. I want to ask you, I think it's a very difficult question, but I'm going to ask it anyway, because you talk about this, what the person was wearing thing.

And there's always the conversation, like, how do you teach people how to prevent a crime from occurring without placing the blame on them for a crime occurring? And we seem to have completely lost the ability to have an honest conversation. about that. You know what I mean? Like I remember I was walking through a rough part of Edinburgh taking a couple of speakers, stereo speakers, to a friend's house. And I was acutely aware that I was walking through a rough area with something that people may want to take from me using violence, right? And so I think I put them in a bag and I hit them. Do you know what I'm getting that? I do. So how do we have that conversation honestly? Because, I mean, I would argue that it is

unarguable that if dressing in a certain way would encourage male attention and therefore expose you to risks, right, as a woman. So how do you talk about preventing crime without placing the blame on people who should not be blamed for a crime being committed against them? Yeah, I mean, my response is not to tell women how to dress. Yeah. And not to... Yeah, but I'm Russian-made, so, you know, I don't have those limitations. So, I mean, the response should never be for women to, I sort of am sympathetic to the idea that the response to rape should not be, tell women to behave differently. Sure. Because that in itself mischaracterizes the nature of what rape is. Sure. And it conflates it with sex and attraction and all that stuff. So,

I guess what I'm saying is if I think, I think I've got an answer to the difficult bit of your question, which is to go back to the stuff around rape myths. Right. So, Helen, I'm crediting her with this because it was her point really. She identified a survey that was put out in around 2004. And the report of the survey was, one in three women think that rape victims are partly to blame for what's happened to them, partly to blame. When you looked at the research,

what these women had been asked was, do people involved in these cases, take, have some responsibility for what happened to them. And what Helen identified was that there is a huge difference between responsibility and blame. Okay. So I think women tend to realize, you know, I think all women realize that they have some responsibility for their own behavior, you know. And women realize that they are responsible for their interactions with other human beings, you know. goes without saying.

That's not the same thing as to say that women should be blamed for what's happened to them because blame should not figure at all. So it's about the way we have the discussion is to really draw out the distinction between responsibility and blame. We can say that women are smart enough to know that if they go out on a date with a guy

and they invite him up after the end of the date when there would be no, when, you know, when they have a reason to go their separate ways. That's not consenting to sex, but there is a sexual connotation to that decision. Yeah, yeah. And to pretend that most women don't know that already is ridiculous. Yeah. So a lot of the discussion around rape culture pretends that there is no content to that decision whatsoever. Most women know that there is.

You know, the example that Helen used in the paper was, is coming up for coffee suggestive of sex. Now, of course, inviting someone up for coffee is not consent to sex, but also most people, most men and women, understand that that is a form of social communication. And also most people understand that consent and the kind of the process that leads up to a sexual encounter is a deeply intimate, difficult human process

that is often worked out between the parties as it unfolds. You know, when you sleep with someone for the first time, you are attempting to read signals all the time, right? That's an organic, difficult process that involves, you know, assumptions from both parties. It involves differences of interpretation. And I think what was so valuable about Helen's work was that it was saying,

these aren't necessarily myths. They are the categories of understanding that we all bring to those moments, you know, when you're out on a day or when you're out, you know, when you're first engaging in these kinds of liaisons with a new person, it involves uncertainty and it involves risk, right? It's risky because you're putting yourself out there in a way which is difficult. And it involves a negotiation between two people, right?

It's a mutual dance. And the American feminist writer Camille Pallia put it in quite strong terms. She said that female freedom is the freedom to risk being raped. Now, that's a very strong way of putting it. But what she was talking about there was that if you believe in women's sexual liberation, which I think most people in the Western world tend to do, they believe that men and women should have equal rights to sexual liberation, then that always comes with a degree of risk,

because sex and intimacy occurs in an unregulated space between human beings. For now. for now, but it doesn't, it hopefully remains a kind of uncontrolled sphere where people have to work it out for themselves. So the book talks, that my book talks about the risk that the expansion of the law necessarily involves a contraction of that space where we're left to figure it out for ourselves. And so I think the way we have this discussion is to get rid of the gendered men and women, men are bad women, women are fectless discussion completely. We just need to recognize that when people go out and are starting to live and interact with people,

they are going to take risks, that it's a little bit dangerous always, but that's what's great about it, that we're both to some degree responsible for what happens in the course of those interactions, that that doesn't translate into being blamed if something goes terribly wrong, but that at the end of the day,

this is an organic process between two individuals that will be unpredictable, dangerous, but also, you know, quite exciting, you know, for that reason. It's exciting because it's unpredictable. And that's easy for me to say as a man, obviously, because I'm inherently less likely to be at risk. But we can't completely drain that interaction of any risk, because if we do that, it's not the interaction that we started out with. This episode is brought to you by Netflix's remarkably bright creatures. What if a Pacific octopus held the key? to a mystery that could heal your heart.

Well, that's Tova's reality. An elderly widow working at an aquarium. Tova forms an unlikely friendship with their crumudgeonly, Marcellus, whose remarkable intelligence leads her to a life-changing discovery. Watch remarkably bright creatures with your remarkable moms this Mother's Day weekend. Only on Netflix May 8th. And look, this is another question which is quite difficult to ask.

So I used to work in a pub for many, many years. And you see couples come in or they're on a date, and, you know, especially in Britain, we've got such a, you know, a large drinking culture. By the end, you see these couples tottering out, absolutely, you know, leathered. And you think, in reality, is anybody able to give consent at this point? And how difficult does that make a conviction if, you know, the woman wakes up and she realizes something onto ward has happened, goes into a police station, and they go, right, go through the list of events of what's happened and she's drunk and she doesn't really remember it accurately or clearly? Well, as a point of fact, you can get a conviction in a rape case even where the complainant

has absolutely no recollection of what happened to them. So if they are completely incapacitated and can't remember what happened, a prosecution is still possible. They just have to piece together evidence from other areas. So CCTV and piecing together the account as best they can. is a piece of law, a case called Bree, which says that if someone is incapable of forming consent, if they're so drunk that they're incapable of giving consent, then that's capable of being rape. You know, you shouldn't sleep with someone if they're demonstrably incapable of

giving you consent to sleep with them. But what Brie also says is that drunken consent is also consent. You know, if you are capable of forming that mindset of agreeing to, say, intellectual intercourse, and you do so, then that can constitute consent. And that question as to whether someone was capable of giving consent is usually left to the jury to decide. So if you're sat on a jury and you're considering a case in which one person says, I didn't consent, I was very, very drunk and he took advantage. And the other party saying they did consent, here's the reasons why I thought they were consenting. Then the issue for the jury will usually be, were they so drunk that they couldn't form consent in their own brain? And often actually, like the drunk consent,

cases are quite easy to pick apart because you look at someone and you say, well, they're clearly not capable of forming consent. Or you look at them and you say, well, they appear to be compisementous, they're able to stand, et cetera, et cetera. So that's a question for the jury. It's a matter of fact that the jury have to determine, usually. You see, even some of the other, I mean, how many couples in this country will go home from a pub on a Friday on Saturday night, completely, as you say, leathered, both very drunk and have sex and not, there is no issue there. Do you know what I mean? it's just, it's so...

Well, this is one, just one very quick point about the Crime Survey for England and Wales being boring about research game. What they, that's, the Crime Survey for England and Wales is where people get the figure of 83,000 rapes every year. So that's an often touted figure that there's 83,000 rapes every year. The question that that survey asked people was, have you ever been penetrated where you haven't given consent? or when you've been too drunk to consent.

And lots of people said, yeah, like over the last 12 months, with my partner, with my husband or my long-term boyfriend, I've had sex in circumstances where neither has had a clue what was going on, right? So that means, yes, that gets recorded as an instance of rape. And what the crime survey did was they stopped asking women about how they themselves interpreted what had happened to them. Right. Because when they used to run the survey, a bunch of women turned around and said, well, I didn't

I didn't consider that rape because it's my boyfriend or my husband and we were both trolled. And what I think that illustrates is that sex is an intimate thing. And often the boundaries for what is acceptable and what is not between a couple are negotiated between them. And it's not always easy to put a simplistic understanding of what's occurred onto it. You can't really label, you know, there's all sorts of things that go on in the bedroom that you can't label, you know, one thing or the other because they're individual and they're distinctive. So that's one interesting aspect of that, is that couples will do all sorts of things that the law is too blunt to deal with and should have no involvement with. But the risk is that the more we expand the sphere of the law into that area, the more likely

it is that these organic, intimate relationships are drawn into a legal system that's ill-equipped to deal with them. All right, well, our time is up. I'm sure all our viewers have enjoyed this cheery and upbeat episode with lots of banter and back and forth. But it's, I mean, it's a very serious issue that requires that kind of approach. And that's why we've not tried to, you know, banter about it. Be wacky about it.

Luke, remind everybody your book and where to get it? So two books. First, why rape culture is a dangerous myth. It was published five years ago. But my latest book is Human Rights, Illutory Freedom, why we should repeal the Human Rights Act. And where can people follow you on social media? So I've got a ridiculous Twitter handle,

which is Luke S. Gittos 1986. Well, we'll stick it in the video. As always, thank you for watching, and we'll see you in a week with another brilliant episode. See you next week, guys. Take care.