Sunday, February 6, 2011

Serious Crime

When is a crime "serious"? This cropped up recently when, in connection with the prisoners vote issue, some jackass politician decried the fact that there are a couple of thousand people serving a year or less in prison for violent or sexual offences.

These were said to be "serious", as if all sexual or violent crimes were inherently beyond the pale. The impression is given that no crime involving sex or violence can ever be "minor", though a sentence of a year or under may suggest they can.
Let's think. If a drunken slob slaps a woman on the bum and shouts "wahey, darlin", that's common assault and sexual assault. Insulting, demeaning and Neanderthal, certainly. But a "serious" crime on the scale of wickedness?
To characterise all sexual or violent crimes as being "serious" is to indulge in the lazy luxury of absolutism. It is also to demean victims. To lump the experiences of a woman who has been gang-raped, or a person who has been crippled with a brain injury, into the same category as bum-slapping or a punch in the face is insulting.
I'd like to say that I'd expect better from those charged with guiding the ship of State. But given their past ramblings, I really don't.


  1. I agree entirely with you Ben, and indeed add to it that the state has a very long history of inflating minor crimes, particularly those committed by poor people and punishing them in an unduly harsh manner.

  2. Well said Infamous, No matter what anyone says, the ruling class still do.

  3. Thanks for raising the excellent point about what constitutes "serious". Serious definitely means different things to different ruling classes.

  4. "To be poor is a crime". This is a truth for centuries gone by and across the globe.

  5. This is not about "poor people" this is about so called minority groups and so called "Hate crimes" hence the confusion and double standards. Do as in your example Ben the same thing to a male and there would be nothing but mocking of the victim.

    It's all about where you stand in the league table of victimology.

  6. hello troll! Goodbye, troll...

  7. I see no obvious trolling?

    But aye, crime inflation, heh, it'd be comical if it wasn't so serious...

    People can be classified as a sex offender by taking a pee behind a wall when caught short, something I think we've all done at one time, it's madness.

    Oh, moving slightly off topic, my library is being closed, as are 60% of the others in my area, an act of cultural vandalism that's all the more maddening given we could apparently find millions of quid of tax payers money for a visit from a child sex conspirator and ex member of the hitler youth with an imaginary friend, go figure.

  8. Crime and punishment is all about the disproportionate numbers of convictions from poor and working class backgrounds, and this is and has been the case for a long while.

    It provides a framework that the majority of people understand and can relate to and gives an explanation for the "lazy luxury of absolutism" that Ben describes concerning how some politicians misconstrue reality to suit themselves in the criminological debate.

  9. @Hideki No indeed I'm not a troll but some people can't bear to hear that word "males".

    Anyway I was skim reading about Julian Assange to day apparently the Swedish Prosecution Service want him to stand trail for - get this one - minor rape?!

  10. The swedish Penal Code has no reference to "minor rape" so I think its a bit harsh to make derogatory judgement against the Swedish legal system on the basis of the phrase.

  11. some people can't bear to hear that word "males". ????? what on earth made you arrive at that statement?

  12. @Tallguy "Mr Assange, 39, who denies any wrongdoing, is fighting the attempt to extradite him to Sweden, where lawyers have confirmed for the first time they intend to prosecute, him for "minor rape", which carries a maximum sentence of four years."

    From the Telegraph no less.

    Is it true in Sweden that men can be prosecuted for having sex without a condom but women don't get prosecuted for not taking the pill?

  13. In the penal code there is rape, gross rape, and sexual coercion. No reference is made to the specifics of contraception. Minor rape may mean that it was not "gross rape." Without being a Swedish lawyer, I can't say. However, as you clearly are not either, I wouldn't jump to conclusions as to what it means.

  14. @Tallguy I'm just going by what a UK national paper which says an "attempt to extradite him to Sweden, **where lawyers** have confirmed for the first time they intend to prosecute, him for "minor rape".

    Do I need to ne a Lawyer or do I need a lesson in comprehension?

    Hut just to clarify can you give examples of rape, gross rape and sexual coercion?

  15. Sorry I'll type that again:-

    @Tallguy I'm just going by what a UK national paper which says an "attempt to extradite him to Sweden, **where lawyers** have confirmed for the first time they intend to prosecute, him for "minor rape".

    Do I need to be a Lawyer or do I need a lesson in comprehension?

    But just to clarify can you give examples of rape, gross rape and sexual coercion?

  16. "can you give examples of rape, gross rape and sexual coercion?" ?? Why, are you perverted or something?

  17. My issues is that you brought it up to mock it and yet have no idea what it means. Not speaking Swedish, having no translated textbooks or case reports, no I can't tell you exactly what those labels mean. Which is why I am not judging the system.

  18. @Tallguy So despite telling me what the penal code of Sweden is you can't tell me how rape, gross rape and sexual coercion are defined.

    I also asked you another question:- Is it true in Sweden that men can be prosecuted for having sex without a condom but women don't get prosecuted for not taking the pill?

    And you don't know the answers to either of these questions

    Go back and read what I said and if you need some help with research try using the internet.

    And if you feel I was mocking then so be it because personally I'm not concerned with your feelings, only the people who get caught up in a justice system that often attempts to prosecute and punish people by sticking highly emotive terms and crimes on them just so they can raise the level of seriousness.

  19. If you want to know the definitions go look them up. There are translations available. However, it doesn't help in working out were the phrase minor rape comes from or what it actually means. Again, I do not speak Swedish or know Swedish law. I am not claiming to defend it, just stating you should not be so quick to damn it on the basis of a phrase in an article you skim read.

    In regards to condom vs pill, I have no idea. However, even if it is then case that Swedish law makes a distinction, that is a fairly logical distinction in that it is a case of a woman choosing what enters her body, with the increased risk of disease that arises from failure to have a physical barrier, vs a risk of having a child. In my view (which may or may not be contraversial) I feel that is an acceptable distinction.

    In regards to the specifics against Mr Assange, I believe that one of the charges is having sex with someone whilst they are asleep. Under English law that is clearly rape (under s.75(2)(b) of the Sexual Offences Act 2003 it creates an evidential presumption of a lack of consent). Equally under English Law using false pretenses to obtain consent is rape. (I beleive a relevant case here is R v Green, where someone was conned into masturbating believing it was part of a scientific experiment, when in fact it was for sick pleasure). Given that, I would expect refusing to don a condom would be regard as sufficient to vitiate the consent. Does that make Swedish law any worse than English law? Not really. Is the definition of rape to wide?

    In my view, no. Historically, rape is not about the violence or force. It is about the violation of a woman's rights (or in ancient history, the theft of a daughters virginity). So from a historical perspective, the label of rape to what Mr Assange has allegedly done is 100% accurate. However, this label is somewhat antiquated given the modern (horribly inaccurate) view of rape as a violent crime against strangers. So maybe the definition is too wide. But in my view this is because society has changed its view of rape, not because the law has changed its view. However, to insist that something like this is not rape is to trivualise the basic principle, Assange is accused of violating a woman's right to her body.

    As an aside, the 2003 act did away with the old law that a man could not be raped. So now in England it means that the violation of body rights protects men as well. However, due to slightly tricky wording it seems likely that it does not cover a woman raping a man.

  20. @Tallguy in response to para 1:

    So you don't actually know anything about Sweden's penal code which you "claimed" in earlier comments yet you expect me to look up the definitons. I think it's you who needs to do the research not me.

    In response to para 2:

    All very interesting but absolutely nothing to do with rape, minor or otherwise. Or can we assume for example that a woman who doesn't insist on use of a condom can now be prosecuted for rape because she coerced a male into having sex with her whilst carrying a VD?

    Obviously I would assume that most males would like some say on what enters their body wouldn't you?

    In response to para 3:

    Yes I've read some of the elements of that ridiculous act and it's no wonder the rape convictions are so low but when all is said and done, it's not Swedish law is it, so why are you attempting to judge him by it?

    In response to para 3:

    Nonsense, historically and even to this day most people regard rape as having an element of violence or force to it, not some act a person/s later regretted/misconstrued.

    In response to para 4:

    No surprises there then.

  21. Para 1. I never claimed to know Swedish law. Hence why I don't pass judgement on it. You don't either, so you shouldn't either. When I refer to the Penal codes that is like referring to an Act of Parliament. The Specifics of it cannot be understood without case law.

    2. Rape is sex without consent. If someone said "I'll only have sex if you wear a condom" and then you go ahead without it, then that is a lack of consent. Why should that be not regarded as rape?

    3. Merely illustrating that the Swedish prosecutors aren't so far from English ones in regarding the crime as rape.

    4. Um what? That may be the perception, but it is totally wrong. The idea that something is only rape if violence or force is used is bollocks. And that has been the law for a very long time. The Principle in R v Green has been illustrated in the common law for over 100 years.

  22. @tallguy
    1. You've been passing plenty of judgement whereas I quoted from a newspaper.

    2. That could be argued that it was lack of full consent as there was a condition placed on the sexual act so no it's not rape. The reason for wearing a condom are twofold, fear of pregnancy and or fear of disease and has nothing to do with the sexual act.

    3. You don't know Swedish law so how would you know.

    4. No it's not, most common folk understand what rape is and is not and I doubt would lock someone up because they failed to where a condon for God's sake! Is that what you want is it?

  23. 1. I haven't. My only judgement is that the acts Assange is accused of would be rape under English law. With regards to my comments on the Swedish penal codes, the depth of statement in them is limited, so its hard to make any more detailed statements than I have. If you want to see for yourself, google "Swedish Penal Codes." Then find Chapter six.

    2. So if a woman says "I'll have sex if you wear a condom" and the guy jumps in without one, you seriously think that isn't a lack of consent? How about if a woman (or man) says yes till she reaches the bedroom, and then turns round and says no? Would carrying on not be rape in your view? Both cases have about the same level of consent (ie consent given then withdrawn), so why distinguish?

    3. I know the acts the prosecutors say he did. As they are trying to prosecute its a reasonable inference that they are illegal in Sweden. As they are also illegal here then it is a safe bet that liability for those acts is similar between the Jurisdictions.

    4. Um no. English Law has never even required force. It simply requires a lack of consent. If that is the perception the "common folk" have then it is wrong.
    For example;

    In 1887 in the case of Flattery it was held that deception as to the nature or purpose of the act vitiated consent. Here a choir-master told a girl it was necessary to improve her voice.

    In 1923 in the case of Williams the same thing was held, in this case the sexual intercourse arose after a quack doctor said it was necessary to cure an illness.

    More recently, in the case of Tabassum in 2000, it was held that a person who claimed to be a researcher in order to exam woman's breasts did not have their consent as they were deceived, therefore could be liable for indecent assault. (standard of consent is the same of both crimes).

    In Green, which I have already mentioned, in 2002, it was held that persuading a boy to masturbate for a bogus procedure also vitiated his consent.

    Equally significantly, although in a slightly different line of law, in Olugboja in 1983, the court made it very clear that submission to an act is not consent (so violence or force was not a necessary component of rape, although it did feature in this case)

    However, it is important to notice that deception does not automatically make the action a rape. A deception as to the sitaution rather than the nature or purpose of the act does not prevent consent, as seen in Linekar in 1995 when having sex with a prostitute with no intention of paying was held not to be rape, and in Jheeta in 2007 when persuading someone into sex on the basis of faked suicidal feelings was not rape.

    I think this shows that the "common folks" view of the law being that force or violence is needed has been wrong for quite a long time. So as I said, public perception is whats out of sync here, not the law.

    Returning to the Condom issue, under the law of Flattery and Williams, when the nature and purpose of the act was not disclosed (in Flattery the girl was fairly naive and didn't realise what was being done) thereby vitiating consent, its fairly easy to draw a parallel here. If you pretend you are wearing a condom, then you are deceiving the woman as to the nature of the act, thereby vitiating her consent. So the law of 120 years standing goes against the "common folk" understanding or rape.

  24. In my view, I have no problem with that being classed as rape, as I regard rape as a violation of a person's sovereignty. However, I do accept that there is an issue that the man in the street (unless he is a lawyer or policeman) regards it as a purely violent crime. That does not mean that it would be a good thing to narrow the definition. To do so runs the far greater risk of people beginning to think that it is fine to engage in an extremely intimate act with someone in a way that they do not consent to. A far better solution is to better educate people about what rape actually includes (something that the blog post above seems to encourage) so people know where they stand. If people realise something is a crime, they won't do it, and the rights of a person over their own body will probably be better respected.

  25. @tallguy I did a little straw poll today, granted I will add the the degree of deception involved into the equation but the overiding result was that refusal to wear a condom or removing it whilst engaging in sexual intercourse did not constitute rape.

    From what I can see there is a contract involved and that is a civil matter not a criminal one, where the plaintiff has agreed to "sexual intercourse" on condition a condom is used. That contract was broken and so therfore the Plaintiff will have to pursue the breach through a civil court for damages.

    All the cases you have highlighted show the defendant used deception to lead the "plaintiff" to believe they would benefit in some way.

    Other that I still maintain my opinion that no the public doesn't need educating, the lawmakers do.

    They are the ones who come up with ridiculous laws spurred on by lobby groups and then act surprised and offended when they don't get the results they expected.

    The public might be fooled some of the time but not all of it..

  26. This law has stood for over 100 years. Your perceptions can only have grown up within the last 20-90 years. Age alone suggests that its your perceptions that are out of step, not the lawmakers. They have always been at odds with the law, rather than the idea you seem to have that rape used to be just violent or forced sex, and now the laws have changed to make it extend to all these other things. With regard to the alterations made by the 2003 Act, they do little to change the principles of law laid out in the above cases.

    How about I turn the facts around a little. A woman agrees to have sex with a man. She says "you have to wear a condom." He says "no." She then says "Fine, no sex for you." He then proceeds to have sex with her. She protests, but does not struggle. In your view, is that or is that not rape? (note from a legal perspective this is 100% no doubt rape).

    The cases make it very clear that if the victim is deceived as to the nature of the act then they haven't consented. Whilst this isn't so clear on the facts, in terms of what the judges say when giving judgement its fairly certain. Therefore lying about donning a condom would definitely fall within this.

    As regard to contract, no. For there to be a contract there has to be consideration of monetary value. Therefore, in this case there isn't one, so there would be no claim. (FYI I feel I should point out the plaintiff hasn't been used in the English Courts for over 10 years, the current term is Claimant)

    Any civil claim would have to be in Tort under the headings of Assault. However, the fact that such a claim exists does not prevent it being a crime, for example punching someone and leaving them in a coma can be pursued in both Tort and the criminal law. As can fraud. For it to be a purely civil matter it has to fall outside the criminal law. And as I have said several times, this has not fallen outside the definition of rape within our lifetimes.

  27. @tallguy oh by all means turn the facts around a little but that is for a jury to decide if it constitutes rape or not.

    No lying took place.

    It's alleged victim by the way and no there doesn't have to be a monetary value, it's called quantum which can be equated into a monetary value.

    Oh sure a civil claim and a criminal one.

    Can you name any cases where a male has been found guilty of rape for not wearing a condom and then pursued through the civil courts?

  28. Tall Guy, a question if I may (you are very knowledgeable on the subject) in your view, why is it that among rape allegations, the ones which actually get to court end where no sentencing is made? The cases are dropped. I have heard a statistic of it being around 90%.

  29. @Anonymous February 9, 2011 9:43 PM I can answer that. He believes that the law is sacrosanct and the ignorant masses need to be educated.

  30. In regard to the cases being dropped, I believe that figure is about right. When it comes to a trial in rape the conviction rate is around the same as offences such as murder. However, the issue is that for it to come to a trial the CPS have to believe that the case is in the public interest, and there is a realistic chance of conviction. In rape cases, as with all criminal law, the standard of proof is beyond reasonable doubt. As the majority of rapes are between individuals who know each other, proving there was no consent is somewhat difficult, meaning in a lot of cases there is no realistic chance of a conviction. In addition, many women find the prospect of testifying before court too daunting and withdraw the complaint.

    @ another anonymous. What are your hypothetical facts where it doesn't amount to a withdrawal of consent?

    Not sure what you mean by "Oh sure a civil claim and a criminal one," but in a case where the schemes that the criminal courts can use to provide compensation are inadequate, there is almost always a claim that can be brought in the civil law.

    With regard to if the case exists? It probably doesn't. That doesn't stop my point being right. The case law indicates that assault can lead to claims in Tort, and that having sex with someone whose consent depends upon the wearing of a condom would lead to a conviction in the criminal courts.

    As regard to the Quantum Meruit principle, that does not stop there needing to be monetary value. What it states is that if there is a service with no contracted price the courts can impose a price to be paid. However, the courts would never impose a price for sex, as that would be a declaration that all sex was prostitution.

    @Anonymous of 10:08pm. No I don't. There are lots of problems with the law. Try reading up on criminal causation if you want something to make your brain cry. Or Misrepresentation in Contract law. However I do think that the current law on sexual offences is largely correct (with a few issues, which are not relevant here). I also happen to think the actual debate here is not the one you are trying to have.

    There is no debate as to what the law is. So trying to argue with me is pointless. The law also hasn't been changed that much by the Sexual offences Act 2003, especially in regard to the issues we are discussing at the moment. Therefore the argument is not about politicians and lawyers attaching labels beyond public perception, as the perceptions all arose after this fairly old area of law. The only real debate here is if the now fairly old law needs re-working in the light of changed public perceptions. For reasons I have already stated, I do not think so.

  31. @tallguy In addition many are also false allegations with more coming to court these days instead of being let off with a slapped wrist.

    Sorry - hypothetical facts?

    Ok have it your way, rape is now anything from stranger rape to willing to have sex with someone on condition they do 3 cartwheels and 1 soomersault prior to entry and on completion do the dusting to the satisfaction of the contractor.

    I think your missing the point quantum covers pain and suffering.

    Indeed there are lots of problems with the law, as was stated earlier these days you could end up on a sex ofeender register for caught peeing against a wall and people like you who wish to find Julian Assnge guilty of rape because he didn't wear a condom. Luckily we still have a largely sane population who will not convict a person of such a serious crime under those conditions. That has been shown because you haven't been able to provide one similar example where that has happened.

    You stated that it is the public who need educationg, my response was it is the lawmakers who need educating. there are many critics of the SOA 2003 with some commenting it's a charter for a dislike of certain Perversions. Kind of makes you think who was it who implemented this law.

    What debate was what, do you mean where I pointed out "minor rape" and you have tried to sanction me?

    My view still remains that there is no such thing as minor rape and was in contesxt with the original article. You on the other hand have shown how cases do end up being made to look more serious than they are and have continually tried to justify it.

  32. Let me get this strait. Whenever someone has sex, it is a legally binding agreement on both parties, for which the court can enforce consideration for services rendered? Or to put it another way, every sexual act is the result of two parties agreeing to enter into a legally binding agreement in exchange for consideration on both sides? Cause if not, there isn't a contract. Quantum Merit is merely a method for the court to set the level of monetary consideration when a contract is enacted but without an agreed price.

    With regards to the Sexual Offences Act, the main changes to the existing law was that the reduction from not believing there was consent to not reasonably believing there was consent as the mens rea to the offence, and adding in oral sex as a form of rape. Beyond that, it largely matched the law of the last 120 years.

    I called you out on criticising the phrase minor rape because you have no idea what it means. Which makes it impossible for you to have made a judgment as to whether or not it falls into your definition of rape.

    Regarding hypothetical facts, all we know is that Assange is accused of having sex having not donned a condom when asked to. Construct a chain of events from that where it doesn't come down to sex without consent (the historical definition of rape, as I have demonstrated)

    Bottom line is, and I will repeat this however many times it takes, Rape is and always has been in this country, Sexual intercourse without consent.It has always been the case that fraudulent consent is not consent (not just in rape, but across most of the criminal law).

    Any perception that it requires violence has always been wrong. Its not the lawmakers creating laws the public don't like, its merely the same old law existing with the public not understanding what it has always been. You can argue the law needs updating, but not that this is a new development.

  33. @ anon + tallguy,
    Very interesting discussion. I have learnt a lot from reading it.
    I have always believed, as a woman, sorry anon, that no is no!! If I didnt want to risk my life by insisting a man wears a condom and refused the intended sex, that is no!! The difference between condoms and pills is one is not invasive (other than a mans dislike of "swimming with his socks on") whilst the other is, and cant simply be taken off.
    I do agree the law needs updating, but we are in need of so much reform, in all areas of our Justice system, that I doubt this will be a priority.

  34. Ok Queenie let's say you have sexual intercourse with guy on condition he wears a condom.

    You then discover he didn’t wear a condom and you are obviously worried/concerned but it turns out you are neither pregnant or have a disease.

    What would your next move be?

    Do you agree this guy who you wanted to have "coditional" sex with should be prosecuted for rape or do you feel some other measure should be implimented by the state?

    Alternatively do you work out a solution between you and someone you obviously like and reach some sort of compromise whatever that may be?

  35. Bit of a non-sequitur, but I've never understood why our justice system is based on consequences rather than intentions. Why on earth should you get a lower sentence for dangerous driving where your actions cause you to narrowly miss a pedestrian than you do for the driving where you hit them? Why does attempted murder carry a lower sentence than actual murder when the intention was the same?

    Why should the man who lies and has sex without a condom but gets away with it be punished less than a man who doesn't know he has an STI and passes it on? Surely the intention was the same in both cases, the action was the same, the consequences, which no one controls, shouldn't have an impact.

  36. @Wigarse

    Interesting point. I suspect mostly it comes again from the historical growth of the common law. Allot of crimes which require recklessness to commit or can be committed recklessly (such as Assault, Criminal Damage etc)existed as civil claims long before they became crimes. And the principle in Civil Law was and still is, no damage, no claim.

    As for today? Well, whilst there is an injustice in only escaping liability through luck, there is a practical side as well. Whilst I do agree that reckless driving nearly causing a result should be as liable as causing a result, how on earth do you prove what might have happened? With reckless crimes, allot of the time the best evidence of recklessness is the result. Drag the person to court and all they will says is "I didn't think there was a risk of harm, and I was right, there wasn't." Whilst there is some scope for such a law, the evidential barriers to it would make it very very difficult.

  37. @ Anon 10.16 10/02/11
    It's a mute point for me as not being blind or bereft of feeling in my hands,(or anywhere else, lol),I accept that it would be my responsability to ensure the condom was being worn. I would simply say no and expect that to be respected. There are other, safer alternatives.

  38. @Wigarse Kind of a wierd theory you have there. Is it only men who are capable of passing on STD's?

    @Tallguy Whenever you have the chance to have a shag bud I can email you a templated contract if you like. On second thoughts I guess you've done your own and just waiting for the chance to use it..

    @queenie Ok it's nice to know that there is at least person that perhaps has the intelligence to dsinguish to what i right and what is wrong.

  39. Anon 11/02 9.20


    I said nothing of the sort.


    Good point - it might be fairer to base punishments on intentions rather than outcomes but that isn't practical.

  40. @Wigarse Probably best the next time to use gender neutral language then..

  41. @anon, draw up all the contracts you like. They aren't worth anything. No consideration = No Contract.

    As for right and wrong, in my view Rape is sexual intercourse without the consent of one of the parties. In my view, using deceit as to the nature of the act prevents that consent. Why? Because the crime of rape is there to protect a person's sovereignty.

    Do I have any issues with the law as it stands? Well, for the most part it follows my view and the historical view of rape. The only problem with it (and this would require widening of the definition) is that the current wording of the law does not allow a woman to be guilty of rape.

  42. @ Tallguy, reminds me of Queen Victoria when she ruled male homosexuality against the law but not female because she could not see how a lesbian relationship was possible!

    Rape is much more common for men against women, but I am sure it has and does happen the other way around, women raping men, the indignity and embarrassment of this must be acute.

    I do know of at least one case where a young male factory worker was set upon, stripped and raped by the women there at the factory, he was about 16 years old and with help from his family he did bring it to court and as far as I know from speaking to someone who was close to the boys family, a conviction against the women involved was made.

  43. @Tallguy Whatever mate I'm sure most people know where to draw the line and the last thing they want is Politicians and Lawyers telling them how to conduct themselves in the bedroom.

    There again I guess there are a lot of people who make mistakes and don't set out to deceive who don't deserve the label of rapist.