The criminal justice system, not women's drinking, is to blame for low conviction rates.
Former judge Mary Jane Mowat’s recent comments about rape convictions are outrageous. (“Rape conviction statistics will not improve until women stop getting so drunk”, she said this week.) To me however, they are also personal.
In the first term of my second year at Oxford, I was raped while passed out in my bed. Yes, my unconsciousness was due to alcohol.
Desperate to learn how to play poker, I had invited some friends over to teach me, one of whom brought two companions. Poker rapidly descended into a drinking game and I, being a fatal combination of bad at poker and intolerant of alcohol, passed out. I have since learnt that I was put to bed, but I don’t remember anything. Then a guy I didn’t know had sex with me in my sleep.
I have one very clear memory which still haunts me two years later. I remember waking up during the night and seeing him on top of me, my trousers around my ankles and my shirt still on. I pulled away and heard him mutter “Oh no, it fell out” to himself, at which point I blacked out again. I assume he continued to rape me.
I told very few people at the time, but a friend came with me to the police station. The receptionist, on learning I was reporting a sex offence, insisted on me giving details in front of everybody in the waiting room before taking me somewhere private. Two officers then came to my house, where I was questioned further. One described rape as “just something that happens”, especially at university. The only advice I received was to drink less in future.
Once I explained what had happened and provided forensics, the policemen contacted a woman I was told was in charge of dealing with rape allegations around Oxfordshire. She came into the kitchen, where I had been with the two policemen and my friend, and sent him from the room insisting the conversation be private — even as I maintained I needed him for moral support and didn’t mind him being there.
She proceeded to question me rather forcefully, in a very short and matter-of-fact tone, and concluded that because I was drunk I couldn’t prove anything, informing me my evidence would not stand up in court. She said she got called to investigate a number of rape reports each day and her job involved deciding which of them it was worthwhile to pursue and which it wasn’t. In her opinion, as she made clear from the start, mine fell into the latter category.
The woman asked me to decide in that moment whether or not to press charges. I was not allowed to leave the kitchen until I had made my decision. She didn't fail to emphasise how traumatic I would find the process or her certainty my case would not stand up in court: I would be unable to prove I was unconscious at the time or that I didn't drunkenly consent.
In fact, the Crown Prosecution Service states “capacity to consent may evaporate well before a complainant becomes unconscious”. Photos and videos my friends shot of me passed out both on the floor and on my bed proved I was incapable of consenting: unable to talk or stand up, I cannot have been capable of agreeing to sex. Furthermore, the Sexual Offences Act 1956 lists “evidence that by reason of drink… the complainant was unaware of what was occurring and/or incapable of giving valid consent” as a means by which to establish rape.
The entire experience, being separated from my friend and then questioned harshly hours after my rape, was perhaps as disorientating as it could possibly have been. I was given no opportunity to seek advice or regain composure; no chance to sleep on the matter. The woman insisted on me deciding whether or not to press charges immediately. Still shaken and vulnerable, I was in no position to make such a decision on the spot, and frankly her description of the court process scared me. It was little wonder, then, that I dropped it.
The woman who came to my kitchen told me my situation was exactly what former judge Mowat calls “one person’s word against another[’s]”. Her implication is that a woman who was drunk can’t prove anything — that the whole case is a matter of he-said-she-said.
For me, it wasn’t. As it happened, I did have evidence.
Had the police cared enough they could have acquired DNA, but the woman told them to return the clothes, bedsheets and used condoms I had given them. These all provided incontrovertible evidence that the guy had sex with me. In fact, given his bragging at dinner the following day, this was never really in question. “I lost the poker,” he said, “but I did pretty well if you know what I mean.” Just typing that today sickens me.
My Oxford college, when I spoke to its professional welfare staff, largely ignored me; the guy who raped me received a minor reprimand and no further repercussions. Despite several friends explaining on multiple occasions that his mere presence unnerved me, he seemed to devote his life to making me feel uncomfortable. On nights I was working behind the college bar, he would carefully place himself between me and the exit, sitting there all night. One time when I left a party as soon as he came in he followed me all the way out of college. I ran, and made it halfway back to my house before stopping. Whether his behaviour was intentional is irrelevant: I spent as little time in college as I could, rarely attending events there.
Despite the number of times I have contacted the welfare officers about this, they have largely ignored me except to say that if he’s around I should just leave. I have a year left at Oxford, as does he. I still don’t understand why I should be the one leaving.
“I'm not saying it’s right to rape a drunken woman,” Mary Jane Mowat told the Oxford Mail. “But [when] they've got a woman who says ‘I was absolutely off my head, I can’t really remember what I was doing[’] . . . how are they supposed to react?”
Juries should react, in those circumstances, with the understanding that a state of extreme inebriation is not one where a person can give valid consent for sex and that this in itself is evidence of rape. The CPS explicitly states as much, encouraging investigators to “consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent”.
There would be more convictions if the police process didn’t pressure women with viable evidence to drop their reports. In 2012–13, official treatment of victims like me meant only 15 percent of rapes recorded by the police even went to court. Mowat is right in that rape conviction statistics are lower than they should be. However, the criminal justice system is to blame, not drunk women.
Author note: I wrote about this because these issues need attention. Anyone who wishes to republish this piece, in part or in full, has my permission.
Image by Phil Wanardi