"Date Rape"

The policeman in charge of the footballer rape investigation told Newsnight his views. He said the men who used to launch attacks on the street were now going in for "date rape" to avoid prosecution.

LIZ MACKEAN:
On a bright summer's evening nine years ago, Debbie was attacked and raped by a total stranger. He later argued in court that she'd consented.

DEBBIE:
He said he'd met me earlier in the day, and we'd agreed to have sex and, we were going to meet in this deserted field at 7pm. And he said that it was consensual, and that when he left me there wasn't a mark on me, and that I must have met somebody strange. That was the core of his defence.

MACKEAN:
This woman was just 14 when she was raped by her boyfriend and two of his friends. She confronted them years later and they told her they believed she'd consented.

UNNAMED WOMAN:
These men that I barely new were seeing me naked, were doing these things to me, it was horrible. But at no point did I feel able to scream or to shout or to kick, or even to struggle really.

MACKEAN:
Advances in forensic science mean the issue in most rape cases isn't whether sex took place. It's whether the woman consented. Police say rapists are exploiting the law.

COMMANDER JOHN YATES: (Vice Chairman, Sexual Offences Panel Association of Chief Police Officers)
They meet at a nightclub, and they sort of almost plot out how they are going to get away with it, having themselves deliberately filmed knowingly on CCTV with arms around victims, almost knowing in my view that that's going to present evidential problems for the Crown in due course.

MACKEAN:
Debbie has spent the years since the attack rebuilding every part of her life. There's been some comfort in seeing her attacker brought to justice. The jury accepted her account of a terrifying ordeal.

DEBBIE:
He dragged me down this path and I was so scared I was going 'ahh', because I have asthma, and I was, like, hyperventilating, and he just dragged me bodily into this undergrowth, path.

MACKEAN:
And afterwards you had to persuade him not to kill you?

DEBBIE:
Yeah, I mean, during the rape he smiled at me and said 'you know I can never let you go, you have seen my face', because it was broad daylight, which meant, 'I'm going to kill you'. So I spent ten minutes trying to persuade him that that wouldn't be a good idea, you know, I'd never report him, and got through to him enough that he decided not to kill me.

MACKEAN:
In virtually all the rape cases the only witness is the person making the complaint. It comes down to one person's word against another. This is one of the reasons for our incredibly low conviction rates. Britain has among the lowest in Europe. Of all the rapes that get reported, less than 6% lead to a criminal conviction. To try to improve this the Government is changing the law in relation to consent. For the first time there will be a legal definition to help judges give clearer guidance to juries. As things stand, if a man has an honest belief that a woman consented to sex then he must be acquitted. It's based on what's called the Morgan Ruling. And it doesn't matter how outrageous his honest belief is. It applies for instance even when a woman is unconscious or asleep. Under the changes this honest belief will at least have to appear reasonable to a jury. Police, so often criticised for their handling of rape cases have lobbied for the change. Commander John Yates is one of the country's leading rape detectives. He heads the Met's Operation Sapphire which was set up to investigate sex assaults.

COMMANDER YATES:
We have the opportunity with the new law to be able to challenge that individual, that suspect, that potential defendant, in far greater depth than we have ever had before, in terms of what was his thought process, what did he actually do, what steps did he take to ensure that the person he was with consented to the acts that were later happening.

MACKEAN:
But many cases will still come down to her word against his. One of the lawyers who advised the Home Office on the new legislation says it will have little effect on conviction rates.

MARTIN BOWLEY QC:
I don't think it's going to make any substantial difference, because this is a question really not of law, but of evidence and of facts. When it comes down to it most rape cases are one person's word against one person's word, and when jurors are faced with that they find it very difficult to convict, once they have been given the direction on the burden of proof.

DEBBIE:
It has taken eight years, you know, of trying to heal and stuff until I finally feel I can say to you 'I'm doing OK'.

MACKEAN:
The impact of the new law will largely depend on how it's applied by judges. Debbie's experience suggests the legal system has some way to go before it commands the confidence of rape complainants, she says her trial was a fresh assault. The way the judge directed the jury left her reeling.

DEBBIE:
In the summing up he said to the jury that 'you have to remember' that whilst I appeared a very credible witness, that 'women often become emotional after sex'. And I thought 'I can't believe I'm hearing this'. What he meant was, you know, do women break their own nose, rip their own clothes off, try and strangle themselves, I have never heard of that. To me it was implying that women don't know their own mind they're a bit crazy, and I was shocked by that, that he was telling the jury to bear that in mind.

MACKEAN:
Home Office figures suggest fewer than one in ten women report being raped. Experience shows they're far more likely to come forward if they're given appropriate care and taken seriously. This centre in south London is one of the few in the country set up to deal with victims of sexual assault. It's funded by King's College Hospital and the Met police. Great care is taken to preserve any evidence that might support a later complaint. This woman never told the police about what happened to her because she felt so ashamed. It took many years to tell her family because at 14 she'd lied to her parents about where she was. In fact she went to a house with her boyfriend where two of his other friends were waiting. All three raped her.

UNNAMED WOMAN:
I was absolutely terrified, and I was very small, they were three big men. And I felt that I, whilst though at times I was, while generally during the attack I wasn't restrained physically, I was sort of being restrained by the power they had over me, their age. I just had no experience of a situation like that. I had no concept that I was going to be in that situation.

MACKEAN:
The vast majority of rapes, up to 90%, are carried out by men who know their victims. So-called acquaintance rape. But experts say the perception remains that it is a crime committed by strangers, and many offenders simply don't recognise they are doing anything wrong.

UNNAMED WOMAN:
I find it very difficult to see how someone in their 20s could do that to a 14-year-old girl and not know. But I also believe that they didn't see that as rape. I think if they analyse it in retrospect they would have to admit that was rape. But I don't think at the time they saw that as rape. I think it was something that those particular men did, quite often, and maybe sometimes the girls they were with consented and actively took part in that sort of sex, and I think the fact that they had got hold of me, I don't think they ever stopped to think about whether I wanted to do that or not. They just went ahead and did it.

MACKEAN:
In recent years there's been growing awareness of the phenomenon of acquaintance rape. Men and women get together, have drinks, and sometimes end up with very different perceptions about what then happens. I met up with three women who regularly go out. They describe a confusing scene where rules of engagement between men and women are far from clear.

JANINE PARDO:
You have met a man in a club, you don't know them, you are going back to their house. If you don't want anything to happen, I don't go. I don't go back.

KATE SPICER: (Writer)
You see, this is really interesting, I don't agree with that.

PARDO:
I certainly wouldn't go anywhere on my own.

YVONNE CAZIRO:
I think I am sort of torn between the two, both of you. So I agree with what you are saying, that is how men are generally these days, you know, you get in the cab with them.

SPICER:
Do you think so?

CAZIRO:
Yeah part of me still really does think that.

SPICER:
But you can still say no.

CAZIRO:
Yeah.

SPICER:
This is where the grey area is, it is not about getting into cabs or whatever, its about someone, this is where the consent issue comes in, someone's absolute force of personality, it is not a knife held to your throat. It is someone, like you were saying earlier, it's about someone manipulating and abusing their power, and taking advantage.

PARDO:
But in some of the situations you are describing it is not as clear cut, there is no point, at no point is the woman saying no, but she's feeling violated in some way. And she feels that something is happening that is not quite right. But the man maybe is not to know, how is he to he know that something, that he should stop.

CAZIRO:
Where to draw the line.

PARDO:
Yes.

MACKEAN:
In this often ambiguous territory police are noticing a new trend. Well aware of the law, predatory men appear to be planning their defence in advance, so they can later claim the woman consented.

COMMANDER JOHN YATES: (Metropolitan Police)
We seem to be seeing a change in offender behaviour, whereas before they may have gravitated into the stranger-style rape, that, you know, the rape-fiend style territory, dragged off the streets into the bushes, awful offences, into almost exploiting the gaps in the law around consent issues and acquaintance issues and having themselves deliberately filmed knowingly on CCTV with victims, almost knowing, in my view that that will present evidential problems for the Crown in due course. And that's what change in offender behaviour and those patterns, we appear to be seeing some of that at the moment, yes.

MACKEAN:
A study funded by the Home Office is underway to discover attitudes of teenagers towards issues of consent. Early findings are not encouraging, and reinforce recent research involving young men.

LIZ KELLY: (Child and Woman Abuse Studies Unit, London Metropolitan University)
The more you encourage them to talk, the more it appears they don't take no for an answer, even though they say you should do. What they do is they engage in a range of strategies, to try to convince, and then maybe pressure, and it's not much further to move into coercion and then we're into the realm of sexual offences.

UNNAMED WOMAN #1:
We need to find some way of educating our daughters and educating our sons so that they understand much more clearly what rape is, how rape occurs, how it happens, particularly in these gang situations, which I think is a lot more common than people think.

DEBBIE:
Still with the general public people think that rape is just like rough sex and it's, you know, and it isn't, I mean it's a massively violent crime, it is a total violation of someone's human rights. I don't think it's taken seriously enough.

MACKEAN:
Of course it takes much longer to change our culture than it does to change the law, and no-one is expecting any immediate impact on rape convictions. Campaigners argue that society needs to be brought up-to-date about the crime of rape. After all, it's society that produces juries.

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This transcript was produced from the teletext subtitles that are generated live for Newsnight. It has been checked against the programme as broadcast, however Newsnight can accept no responsibility for any factual inaccuracies. We will be happy to correct serious errors.