Men are playing with fire by having drunken sex

6 April 2019

9:00 AM

6 April 2019

9:00 AM

It is late, on a wet Tuesday evening in November, and I am driving home, listening to endless talk of Brexit on the radio. The phone rings in the car and cuts off the news. It’s an unknown mobile number; I press the answer button on the steering wheel. A moment’s hesitation and a woman’s voice comes over the speakers; middle-aged, well-spoken. She’s almost in tears and struggles to get her words out. ‘You don’t know me, and I’m so sorry to ring you this late. I got your number from my lawyer friend Stuart, and he told me you are the person I need to call. It’s about my son. He’s in a police station now. He’s been arrested for rape.’

I have been a criminal barrister for more than 25 years and a QC since 2013. A lot of people have my number and more and more of them are being asked for it by friends, colleagues and family members, whom I would never have heard from even five years ago. This is #MeToo, as it trickles down from the worlds of sport and entertainment, into the workplace and, increasingly, universities, where many young people take their first real steps towards independence. Also, where they frequently begin to have sex, or at least more sex, free of the restrictions of home.

The woman who rang me about her son never thought she would need the number of a criminal defence QC, let alone to deal with her own son’s arrest for rape. She is a wealthy and high-profile business-woman, involved in various charities and in line for an MBE. With her son’s arrest, her life changed for good, in an instant.

Richard had been marched from the university library by two uniformed police officers, in front of his friends, staff, fellow students and campus security. He had been arrested and placed in the back of a police car, processed into custody, searched, fingerprinted and had DNA samples taken. Then he was allowed that one call, the lifeline to his mother, just before she in turn rang her lawyer friend, who passed on my number, as this is not his area of law. Within 20 minutes I had arranged for a solicitor to drop everything, leave a badminton game and head to the police station to protect Richard’s legal rights.

I first started to get these calls about five years ago, long before the explosion of allegations against Harvey Weinstein, Kevin Spacey and the rest. From one or two a year to three or four, then, sometimes, one a month. The locations are different, ages vary a little — late teens to mid-twenties is the norm — but the basic facts are almost always the same. It goes like this: ‘Richard did OK at school, struggled at times but is basically a good young man, gets on well with his brothers and sisters, has lots of nice friends, the odd girlfriend but nothing serious. Got into university and was really excited. He can get a bit silly when he goes out drinking but can’t they all at that age? He had been drinking in the bar during Freshers’ Week, met this girl and they went back to her room. They had sex. Everything seemed to be OK but the next thing he knew the police were there to arrest him. The girl had reported him for rape. She was so drunk she couldn’t remember how she got to the room or how they started having sex. She has a boyfriend and would never have had sex with someone else she had just met.’

Young women in universities are, and always have been, all too often the victims of non-consensual sexual assault, including rape. I have seen the brave few who persevere with a complaint through to a jury trial, often irreparably and permanently scarred by their experiences. They have more support than in the past but still, frequently, it comes too slowly and is not enough to cope with the life-changing trauma involved. I was recently asked to advise the family of a victim of serious sexual assault who felt that they were not being listened to by the police.

The stark truth is that most cases like this end up going nowhere. The accuser often decides that she does not want to go to court. The case is quickly dropped by the police, who have too many cases to spend time on those where the complainant will not support a prosecution. Evidence sometimes emerges of text messaging and social media use, undermining parts of the allegation. On a very few occasions the case actually makes it to trial in the Crown Court where, for young, middle-class defendants, the odds of a conviction are low. Only a handful end up with a guilty verdict and a prison sentence.

The end result, then, most of the time: a young man’s life is turned upside down, sometimes with deep and lasting trauma, for something he denies and which never gets to court. Alongside that, a young woman submits to the invasive and dehumanising process of physical examinations, delving into an incident and sometimes her lifestyle, with nothing to show for it at the end.

As this tidal wave of rape complaints, arrests and fractured lives has built and built, I have often asked myself, what has changed? Why are so many more young women making so many more complaints against young men, from backgrounds and at universities where arrest was unheard of a few years ago? Is there more rape and sexual assault, or just a greater willingness to report those crimes? Or is there something subtler at play? Are young women redefining for themselves where the boundaries of consent lie and what they are prepared to accept?

There is no doubt in my mind that the universal coverage of the high-profile #MeToo accusations and convictions have played a part. There is, rightly, a zero-tolerance approach to sexual violence on most campuses. Male students are often suspended automatically when an allegation is made, with no fact-finding process at all. The police are involved much more quickly and are now trained to treat ‘consent rape’ cases more seriously and sympathetically than in the past. One police officer, involved in one of my recent cases, said he was at the local university for a rape complaint ‘at least once a month, but none of the girls ever go through with it’.

The law has also played a part, and has become better known, following recent high-profile cases such as that of the footballer Ched Evans, who was eventually cleared on appeal. The concept of ‘capacity to consent’, in the context of drink and drug use, is better understood. A woman who is so drunk that she really has no idea what she is doing, even if she may superficially seem to be conscious and cooperative, can never consent. A change in the law made it much harder for a man to argue that he was not guilty purely because he ‘believed she consented’, regardless of whether she actually did or not. That defence is still available, but the belief must now be objectively reasonable — it will not work where the jury decides that the woman was completely incapable of consent, due to intoxication or because, as in many cases, she was asleep.

There may be more caution on the part of young men, perhaps also on the part of young women, about having sex when a lot of alcohol is involved. The law is clear — even if both parties are equally and very drunk, and got that way together without coercion, and then have sex, the man is a rapist and the woman is his victim. The woman’s drunkenness obliterates any question of consent and the man cannot rely upon his own state to support his defence; the more drunk he is, the worse the law makes it for him.

I am not sure whether the law has the balance right, as between accused and accuser, but I do think there needs to be a debate, and some informed decisions made as to how we as a society should approach rape cases like this. The present approach is not working. Hundreds of arrests a year, which go nowhere. Lives ruined on both sides, in most cases with no finding of guilt for the guilty and no formal acquittal for the innocent (just a letter saying that ‘no further action’ will be taken on this occasion).

And then there is the collateral damage, to wider families and circles of friends, all of whom are drawn into these cases, when sides are taken and legal lines drawn. I have seen families torn apart, university careers ended and enduring psychological harm on both sides. So yes, we should reconsider the law and the approach of the police, prosecutors and the courts to these cases.

But what should we say to our sons and daughters as they head off to university exuding hope, nervous excitement and a desperate desire for the new? Drink less? Good luck there. Don’t have sex after you have had a drink? Again, that advice will be ignored by many, as it always was. And yet, the moment two young people, attracted to each other, drunk on life and cider, walk into a bedroom alone together, they may be seconds away from catastrophe. She may be an hour away from a trip to the Rape Crisis Centre and he may be enjoying his last night free of the label ‘Rapist’.

I will take your call if you find your son in a police station and a friend gives you my number. I will almost certainly eventually guide him through the criminal justice system without a conviction to his name. I would still much prefer not to receivethat call at all; not to have to hear another mother’s heartbreak over the speakers of my car. Perhaps the best advice then? Give your son or daughter a copy of this article, so that they know what they are facing if they make the wrong choices on what started as a fun night out.

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