Rape is evil. The very word is highly emotive. There are, however, many defendants who are neither evil nor rapists. They just did not have the armour of knowledge to guide them to the right decision.
The courts have thankfully found that "stranger rapes" are extremely unusual. Most rapes which find their way into the court system involve two parties who are known to each other – it is merely the level of acquaintance which varies.
Several of my recent rape cases have been of men accused of rape because they have had sex with a woman who was under the influence of alcohol.
I have recently said in a press conference "This f*** buddy culture must stop". My vivid turn of phrase (using a term picked up from a client years ago) caught the press' imagination, and sparked some valuable debate.
Now that the dust has settled, here are some thoughts on the issues. What insight I have is as a barrister, so my own opinions that follow are mainly from that perspective. Others have and will continue to lead on the moral and other approaches to the issues.
Let me go back to the beginning of all this. Back in August 2016 I wrote a blog about defending a man who apparently had no defence. I met him on the first day of trial, and within a few hours knew for certain that the complainant had made up her allegations by plagiarising 50 Shades of Grey. The press picked up on it and the story went viral. I had a lot of press interest, and even found myself being followed into court.
Shortly after that I was instructed in an alleged rape in Durham. That case re-awoke press interest as my client was alleged to have made a scenario up and then re-enacted that. For the record that is simply not what happened, and not what the Crown were saying happened. It was not part of the facts of the case.
On 16 December 2016, the jury were discharged, having been unable to reach a verdict. On 13 January 2017 at Durham Crown Court, the Crown chose not to proceed to a second full trial, and a verdict of "not guilty" was recorded against my client. The press were in attendance and asked for a press conference.
After the conference had concluded, conversation moved on to topics unrelated to this case. I was asked what I thought about universities, alcohol and casual sex. It was at that point I made the comment about "This f*** buddy culture must stop". I then went on to speak about the dangers for young men of mixing alcohol with sex. Some of the ensuing press coverage is linked at the end of this blog.
The legal issue
The mixture of alcohol with sex can be toxic. It can come back and haunt you. It can give a criminal record to even the most lovely person – who would never deliberately do anything to hurt anyone, let alone knowingly commit the evil act of rape.
Let me explain: If a young man and a young woman are both equally drunk, and they then have sex; if the young man wakes in the morning and says "I really didn't want that" – little will or does happen to the female. However, if a female wakes in the morning and says "I really didn't want that", she can make an allegation of rape to the police. The young man and his family will find their lives turned upside down and he will have to remember really intimate moments in his life which he may or may not be able to explain clearly and in forensic detail to a jury.
The law is simple. If a woman has had a drink and says after sex she did not have the capacity to consent, the male can be accused of rape. A male being drunk is no defence. The real issue is that there is no defining term of what is "too drunk". The test is whether the drink affected a woman's ability to make a free choice to have vaginal, oral or anal sex. If it's the case that the complainant was so drunk she was or became unconscious, then she would not have been able to make a free choice and therefore she could not have consented.
Young men don't seem to realise this. With drink-driving, we all know that if you blow into a breathalyser and are over the 35 micrograms per 100 millilitres of breath, you are over the limit and can be prosecuted. There is no such guidance for consensual sex.
I am not setting out to, nor intending to change the law. I merely want to raise awareness – to help prevent young lives being ruined for lack of knowledge.
The need to spread the word
Whilst there is some (but arguably not nearly enough) awareness of the need to keep young women safe at and after parties, I am shocked at how few young men are aware of the risks they run. Even if the female appears to him to be consenting, he can still be found guilty of rape. Young lives are being turned upside down – not just those of the parties to the case, but also of their families and friends – regardless of the verdict after a full trial.
The word really needs to be "got out there", especially in universities.
It appears that people know about the dangers of drugs. They know about the dangers of alcohol. They know about the dangers of alcohol and cars. They know they cannot drug someone, or mix their drink to have sex. They even know that they should have safe sex – but what no one seems to know is how sex and alcohol are a ticking time bomb. The wrong decision can ruin lives immediately – or many years later.
Parents will tell their children about the birds and bees but I think it would be better if they spoke about the birds, the bees and alcohol. The same day the Times printed its story and editorial linked below, I was dumbstruck as I walked past a street-side café to hear a father say to his late-teenage son "I've never known how to talk to you about this, but now that it's in the paper, maybe it's time". In between them on the table was Gabriella Swerling's article.
If, however, a parent is not sure as to how to address this particular point – find this excellent video made by Thames Valley Police called "A Cup of Tea". Show it to them, and the discuss it. You might just be saving their life from being turned upside down by a criminal trial and possible conviction with an immediate custodial sentence after that.
I don't want to come across as some old biddy – I do drink alcohol and I lead a normal life. I'm not trying to interfere with the way young people live their lives, I am trying to keep them safe. Notwithstanding the focus of this piece on young men, I am equally passionate about protecting young women.
I am not making any comment about how much young women feel is appropriate to drink on a night out as there is no law on that and it is not my business. What I would say to them is make sure you are safe. Make sure you have a friend with you who can and will look after you and ensure you get home safely.
Cathy McCulloch is a barrister at St Edmund Chambers, having earlier been a WPC and a civil solicitor. She has a high profile practice defending cases of alleged sex offences, and a track record in fraud cases. She is accredited at the International Criminal Tribunals and Courts in the Hague.
This article was originally published on stedmund.co.uk.