Dogwash

A curious tale in the Daily Mail, via Unenlightened Commentary.

It transpires that one Jason Jeal has been acquitted of raping one Jane McKenna on the defence, according to the Mail, that he was "sleepwalking". This is perceived by Ross as a gross miscarriage of justice, for which he blames the stupidity of the jury. The readers of the Mail take, on the whole, a similar view, and a quick sampling of the bloggertariat suggests a widespread hostility to and incredulity at the verdict. MPs are queueing up to change the law to plug this "loophole".

Not so fast. For a start I think Ross is being a little harsh on juries. Like most decent people, my experience of the courts in general and juries in particular is limited. I have done terms of jury service twice, trying a total of five cases. Hardly a huge sample, but it's as big a one as most of us get. On each occasion I was stuck by how well the system worked. My instinct was to be cynical of the effectiveness of bringing together 12 random people of hugely varying educational achievement, social status and life experience, but in practice it works very well. I found that collectively the jurors took the matter at hand very seriously, were scrupulously fair, and applied considerable collective wisdom and "common sense". Other people's mileage may, as they say, vary, and I have heard less positive reports of friends' experience of jury service.

But of what of this particular case? The accused actually disavows the defence of "sleepwalking", implying that the term was dreamed up by his barrister. It would probably be fairer to say that he was "on autopilot". Before you start guffawing at that terminological distinction, consider this: have you never been drunk or just very, very tired, and suddenly found yourself part way through some quite complicated action without realizing you had started it and with no recall of the intervening period?

According to the Mail's report, Mr Jeal and his wife had been invited to the home of Mrs McKenna and her husband for a gathering described as a "barbecue". Mr Jeal and his wife had a row and his wife returned home early and alone. Mr Jeal, apparently by the end of the evening comprehensively pissed, ended up sleeping on the McKennas' sofa. Mrs McKenna ended up sleeping in her daughter's bedroom. Although it is not explicitly stated in the Mail piece, I would infer that she was (a) fully or substantially clothed and (b) drunk. Having gone into her daughter's room to check on her, Mrs McKenna then effectively crashed out, pissed and face down, on her daughter's bed. Mrs McKenna's daughter woke her mother when she herself woke to see Mr Jeal "hovering over" her mother. It seems unlikely that there was anything approaching penetration or that Mr Jeal's amorous advances had progressed very far. Mrs McKenna, by now awake, startled and aggrieved, "threw Mr Jeal off her". There is no suggestion that he attempted to further prosecute his "attack".

I put it to you -- I seem to have lapsed unconsciously (sleepwalked?) into some sort of mock lawyerspeak so I may as well continue in that vein -- I put to you the possibility that Mr Jeal, still drunk and groggy from his brief sleep, woke in the darkened living room and made his way up to bed thinking he was in his own home, entering the bedroom and was about to cuddle up to what he blearily and disorientedly presumed to be his own wife, hoping vaguely to reconcile their previous argument.

And I suspect that's what the jury thought, too.

That's just an alternative interpretation. I don't necessarily believe it either, but without having been in that courtroom and heard the detail of the case, I don't know, do I? The jury, God bless 'em, had to sit through and pay attention to it all.

Rape is a complex business covering a very broad spectrum of actions and behaviours, perhaps too broad.

Just let's be a bit careful about setting off lynch mobs, and above all of hasty, reactive, populist legislation.