Obvious differences apart, they’re similar in many ways.
Both are felonies committed by violent criminals. In other words, by human refuse. Such vermin must be punished, preferably by a long custodial sentence.
Now how can this desired result be achieved within our legal system?
That’s where the two crimes stop being similar. They become identical.
For in either case there’s a bit of toing and froing before a custodial sentence is passed, the vermin are locked up and the key is thrown away.
It’s called due process, the cornerstone of legality in all civilised countries, but – and I may be partial here – especially in the Anglophone ones, what with their stubborn clinging to the jury system.
For old times’ sake the law in these countries still insists that the prosecution bears the burden of proof.
It must prove to the jury that the defendant is guilty beyond reasonable doubt. If the prosecution succeeds in doing that, the defendant is convicted. If not, he’s acquitted.
The victim’s testimony is variously important in either crime. When hard evidence exists (CCTV footage, DNA samples, eyewitnesses), such testimony is important only marginally – as is the defendant’s confession.
In the absence of such hard evidence though, the victim’s testimony may be the sum total of the prosecution’s case. Whether or not the jury will convict depends mostly on the victim’s credibility in the stand.
Now imagine for the sake of argument this scenario. A robber is on trial, and in the good tradition of criminal cases he insists he ‘never done it’.
Hard evidence is in short supply, apart from the split lip the victim suffered when, allegedly, the defendant stuck a gun in her face.
The prosecution calls the defendant as its first witness, he repeats that he ‘never done it’ and claims he was at home watching ‘tayvay’ when the crime was committed.
The defence barrister tries to punch holes in the testimony at cross-examination, but this isn’t easy. Granted, the defendant doesn’t recall the show he was watching, but then who’d remember that several months after the fact?
It all hinges on the victim’s testimony, and the prosecutor calls her to the stand. This is how the interrogation goes:
“What were you doing that night?”
“I was out drinking with my girlfriend Sheryl.”
“How much did you have to drink?”
“Well, Sheryl and I had a bottle of Chardonnay before we went down the pub… Then I had 12 double vodkas. Then this bloke bought us some flaming Sambucas…”
“What did you do afterwards?”
“Not sure. Must’ve gone home I think. I don’t remember, to be honest.”
“And you were robbed at gunpoint?”
“Yes, I was. You see, when I woke up the next morning, I couldn’t find my handbag.”
“Is this the man who robbed you?”
“Eh… I suppose so. I was, well, bladdered, so I can’t really remember.”
“Where did the crime take place?”
“At what time?”
“Don’t remember. I, well, always black out when I’ve had a few.”
“But you’re sure you didn’t just leave your handbag behind in the pub? Or lost it somewhere along the way.”
“Yes, well, you know. I get bladdered every Saturday night, but I never leave my handbag behind… So I must’ve been robbed.”
Now imagine you are the defence attorney cross-examining this witness. How easy would you find it to rip her testimony to shreds? Conversely, how hard do you think it would be for the prosecutor to convince the jury beyond reasonable doubt?
Had the victim been compos mentis at the time, the prosecutor would have had a fighting chance. As it is, he’s sternly rebuked by the judge for having wasted the court’s time and money. The jury is instructed to acquit, which it promptly does. The defendant goes home.
No one in his right mind, even those who believe that the defendant was guilty as Cain, would claim that justice hasn’t been done. The prosecution didn’t prove its case. In fact, it had no case. That’s how the law works.
However, if we replace robbery with rape, leaving all other details in place, the magic wand is waved and the situation changes.
Witness the outcry caused by Judge Mary Jane Mowat when she made a remark that’s so self-evident that it didn’t really need making: “I will be pilloried for saying so, but the rape conviction statistics will not improve until women stop getting so drunk.”
She was right on both counts: rape conviction statistics won’t improve under such circumstances and, yes, she has been pilloried.
Natalie Brook, of the Oxford Sexual Abuse and Rape Crisis Centre, screamed, probably frothing at the mouth, that the remarks were “an outrageous, misguided and frankly dangerous statement to make”. Rape Crisis England concurred: the remarks were “potentially very harmful”.
I don’t know, they sound irrefutable and perfectly anodyne to me. What’s so harmful and dangerous about them?
I could quote the whole mantra of abuse heaved on Judge Mowat, but I’ll just give you the gist. She is supposed to have implied that it’s okay to rape a drunken woman, who only has herself to blame.
It’s like saying that a woman eggs a rapist on by wearing a short dress or a low-cut blouse. Judge Mowat may be a woman technically speaking, but her comments were those of a man, who, as we know, are all rapists at heart. She might as well have said “it takes two to tango”.
No, says, Miss Brook. A raped woman isn’t at fault; her rapist is. Rape is “100 per cent the crime of the perpetrator”.
No sane person would argue against this statement. Judge Mowat certainly didn’t. I haven’t had the pleasure of meeting her, but on general principle I doubt she feels nothing but contempt for a rape victim and nothing but empathy for the rapist.
All she said was that it’s hard to get a conviction in a case where the only witness, the victim, suffered from alcohol-induced amnesia at the time. Reasonable? Sensible? Of course it is.
But no reasonable or sensible discussion is possible of a crime that has been as thoroughly politicised as rape has been.
A robber commits a crime against a person, but a rapist’s crime is aimed at an ethos, and a dominant one at that. It’s a sort of lèse-majesté – as is any remark about it that goes a smidgen beyond the acceptable political jargon.
In that sense, both Judge Mowat and the vile criminal are equally culpable, perhaps the judge even more so. She appealed to common sense, the true enemy of our modernity gone mad.