Defending the Right to a Defence

On Russell Brand, and over-zealous feminism

Dear Reader,

One of the more interesting, if somewhat alarming trends in criminal justice in the West – for men, at least – was exhibited during the recent Russell Brand trial.

During that trial, Brand’s defence barrister tried a traditional argument: His accusers, he noted, had not tried to run away. Most of them had not shouted or screamed or made any accusations in the moment (though the victim in the rape case had, she said, done exactly that, as well as complaining to others shortly after the events in question).

This line of argument by the barrister drew the usual stern rebukes from the finger-wagging class that occupies most of the media and dominates the heights of culture: How dare you, they said, suggest that how a victim behaves is suggestive of anything?

The new standard to be applied in such cases is this: Almost nothing about an alleged victim’s conduct, before, during or after an alleged non-consensual sexual encounter, can be taken to be suggestive of anything beneficial to the defence. Or to quote the feminists who advance this standard: There is no prescribed way for a victim to behave.

This is broadly – though not universally - true, insofar as it goes. But it also places the accused person in such a trial in a very difficult position, because it shuts down huge swathes of what used to be called the reasonable person defence.

Consider a situation in which person A accuses person B of rape: The evidence in this hypothetical case shows that the accuser went voluntarily to the home of the accused, stayed the night, stayed for breakfast, went to work normally the next day, and only made the complaint more than a year later.

In less enlightened times, a jury might have been permitted to infer from that a finding that the accuser was not – in the moment – acting like a person who had just suffered an unwanted act of violation. Now, by contrast, they are urged to discount it: Victims act in many different ways, they are told.

This problem is magnified a hundredfold in cases like Brand’s. The alleged incidents happened two decades ago. His evidence was that they consented, the victim’s was that they did not. That is a “he said/she said”, and the jury is asked to decide, in essence, who is telling the truth?

In other words, it is a pure trial of credibility.

Now, I’m not here to tell you the Brand verdict was wrong – as it happens I think that the evidence for a pattern of lousy behaviour was strong. But what I will say is that an accused person is placed at enormous disadvantage when a trial of credibility is essentially pressured to exclude any questions around the victim’s own credibility, as the blessed “consensus” now seems to desire.

Consider the evidence Brand faced: Most of it was a straight contest of two versions of events, with the jurors asked to decide who to believe.

His own case, essentially, was that the alleged victims consented, and nothing in their behaviour towards him or in the immediate aftermath would lead a reasonable person to conclude that they had not consented.

Bullshit? Maybe. Probably, I think.

But certainly, something that a jury should be permitted to consider.

Indeed, they did consider it in this case, and rejected it in one case. Which is fair enough. They also acquitted him of two other rapes, on a defence largely based around credibility. They did their job.

So, given that in this high-profile case, an argument about reasonable conduct did not inhibit a conviction, why would anybody want it harder for a defence to make those arguments in future?

The answer appears to be “to spare the feelings of victims”. Which is noble. But entirely dangerous and wrongheaded.

As Laura P noted yesterday, a victim’s evidence does need to be tested. The consequences of believing it are very severe: In this case, a man has been locked away for a decade, and his life irretrievably ruined. When these sanctions are on the table, the people facing them should have every right to defend themselves by asking the jury to think like reasonable people, and to question whether the alleged victim’s conduct was that of a reasonable person in those circumstances.

We are in very great danger here, in our societal quest to – as Andy Burnham put it – “increase the conviction rate” of throwing out the basic right to a defence for men charged with these crimes.

I am not, I repeat, shedding tears for Russell Brand. Unlike many on the right, I never fell for his “come to Jesus” (figuratively and literally) act, or considered him anything other than an oddball.

But even oddballs, faced with the sanction he has received, should have the right to fiercely interrogate those whose evidence would condemn them to years in prison and a ruined reputation.

The effort to stop that, well-intentioned in some cases though it may be, is not a good thing.

J.