Is Helen Mirren right about date rape?

The actress stepped into a political and social minefield when she claimed date rape should not be a matter for the courts. Paul Vallely examines an issue which raises divisive issues of women's rights and personal responsibility

It might be that Helen Mirren didn't quite know what she was doing when she, casually it seemed, ventured the thought that date rape was, in some circumstances not an issue for the courts but one which needed to be worked through as part of the subtle negotiations of modern gender manners. Or it may be that the award-winning actress deliberately wandered into a political minefield out of a conviction that the pendulum has swung too far on the issue. There is, controversially, a new sense of that in the air.

Dame Helen's contention was that a woman who voluntarily ended up in a man's bedroom and engaged in sexual activity – but then said no to intercourse – could not seriously expect to take that man to court on a charge of rape if he ignored her last-minute insistence that she did not want full sex.

That had happened to her "a couple of times" 40 years ago when she was a budding actress. She had not reported the incidents to police because "you couldn't do that in those days". And perhaps, she suggested, that was not such a bad thing.

Such views violate the current orthodoxy that, when it comes to sexual consent, no means no. Women's groups and anti-rape campaigners were infuriated by the 63-year-old's views, which, they insist, hark back to a mindset that transferred the blame for rape from the rapist to the victim, by suggesting that what a woman wears, or how she behaves, can in someway mitigate the culpability of the man who violates her. It is back to the subliminal "she was asking for it" defence.

There was a time when such arguments were openly advanced in court by defence barristers – and police officers, who in their initial investigations would aggressively interrogate women reporting rape on the commonly held assumption that 60 per cent of all rape claims were false, and that women needed to be given the kind of hard time they could expect in court. Such a case was graphically catalogued in 1982 by the criminologist and film-maker Roger Graef, in a fly-on-the-wall documentary about the Thames Valley Police. The film was instrumental in the changes in the law that followed.

But Mr Graef himself came in for some fierce criticism earlier this month when, 25 years on, he made a follow-up film for Panorama. He found that specially trained officers now treat women with a sensitivity unheard of before his previous film. But he also discovered that the conviction rate for rape was even lower than it was two decades ago. Only 5 per cent of reported rapes in Britain now end in a successful prosecution – one of the lowest conviction rates in the developed world. A key determinant, Mr Graef concluded, was today's "ladette culture" in which young women routinely drink to excess.

Where victims of rape have been drinking, the chances of conviction are seriously lowered. Defence barristers who can no longer raise questions in court about the victim's "provocative" clothes, or her previous history of sexual liaisons, can raise questions about the amount of alcohol she has consumed – and introduce CCTV footage of the woman in a drunken state.

Since in almost half of all rapes, both victim and perpetrator have been drinking, that has a material impact on the rate of conviction. And the impact goes beyond the courtroom. The Criminal Injuries Compensation Authority recently revealed it had reduced payouts to 14 rape victimsbecause they had been drinking.

Mr Graef has, for his pains, been lambasted for all this on a variety of feminist websites. Now Helen Mirren is coming in for the same stick. What part of "no" does she not understand, they ask.

But rape, like abortion, is one of those totemic subjects that sets off resonances across a wider landscape of social politics. Questions about personal responsibility here became entangled with different models of feminism and femininity.

There are those, like Mr Graef, who clearly lament that – in his words – a "ladette culture has spread across UK towns and cities and abroad, more and more women have gone out on the town, drinking to excess and behaving ever more raucously, sending blunt signals to young men also on the prowl".

Opposed to that is the opinion of one of their website critics, to the effect that "Men go and get smashed and nothing happens to them. If we want gender equality, women should be able to go and get smashed without fear of being taken advantage of."

Or, in the words of another of Roger Graef's interlocutors: "Although this culture does result in some of the most pitifully overdressed, over-tanned, overly made-up women getting completely trashed, and stumbling barefoot on Dublin's cobblestones, what Mr Graef is essentially saying is they're 'asking' for it. Nowhere does he discuss why these girls are doing the completely idiotic things they're doing."

It is impossible, says another feminist blogger, to contend that "a woman must take responsibility for her actions" and simultaneously to insist that "there's no excuse for rape".

Yet that is precisely what Dame Helen clearly believes. She pulls no punches in her account of what happened when she was forced to have sex at the end of dates in her late teens and twenties when she moved to London. There was not, she says, "excessive violence". She was not hit. But she was "locked in a room and made to have sex against my will".

But for all that, she insists that, although it was rape, the men involved should not necessarily be considered rapists in a criminal sense. She even raised doubts about the case of the boxer Mike Tyson, who was convicted of raping a Miss Black America contestant in a hotel room in 1992, concluding: "It's such a tricky area isn't it? Especially if there is no violence. I mean, look at Mike Tyson. I don't think he was a rapist."

Those who have made the journey from this old paradigm of semiotic complexity and sexual confusion to the more black-and-white view that all non-consensual sex is a crime are angered by those such as Dame Helen who refuse to make the same journey. And, like so many illiberal liberals in modern political debate, they are intolerant of those who do not conform to their new orthodoxy.

But there are still clearly issues here which have not been resolved. One of the great fears about rape is that it will be perpetrated by a stranger but the vast majority of rapes are committed by someone known to the victim. Likewise, fears about the spiking of drinks are often disproportionate to the true risks; date-rape drugs are rarely detected in tests on rape victims – the figure is as low as 2 per cent according to one British study.

The commonest drug involved is alcohol. Fewer than 30 per cent of all rapes, according to one American study, are committed where neither the victim nor the perpetrator had been drinking.

It raises tricky issues on the question of consent. "Drunken consent is still consent," a barrister submitted in one rape case recently – and was backed by the judge who dismissed allegations of rape brought by a 21-year-old Aberystwyth student, who had got drunk at a party at the university arts centre and subsequently had sex with a college security guard. But, conversely, it can potently be argued that no one can give proper consent to anything when they are so drunk. And things become more confused when it is perceptions of consent, not just actual consent, that are in dispute.

There are also issues on degree. Is there a material psychological distinction to be drawn between the act of power and control in a stranger rape, and failure to control lost in a sexual encounter by two individuals in a relationship?

On the question of personal responsibility, it is clear that it is the rapist who must bear all moral blame for a rape. Women always retain the right to say no whatever condition they are in. But is consuming crippling doses of alcohol a violation of personal responsibility that materially compromises them? A drunken driver may have to accept total responsibility for a car he crashes but if the driver in the car he hits is not wearing a seatbelt, the insurance companies involved will not ignore that fact.

These are issues of real contention which are not easily dispensed with.

It is, of course, possible to generate false controversy about rape – as twits like the wannabe pop star and actor Rhys Ifans did earlier this month with a puerile remark about date rape being a good thing, for guys at any rate.

There was even a saddo Californian rock band that released a single called "Date Rape" which included the line "If it wasn't for date rape I'd never get laid". Such controversialists deserve all the opprobrium that has been is showered upon them. But Helen Mirren's thoughts deserve a response which is altogether more considered.

What the experts think of rape law

Martyn Day, Partner, Leigh Day & Co Solicitors

"I am a great admirer of Helen Mirren's work on the screen and stage but her views on date rape are old fashioned and do not do her any credit. It is right that a woman has the right to choose to say no at any point and for the man to force himself after that is widely accepted to be rape. I can but hope that Ms Mirren's views will be quickly consigned to the can and she gets on with what she does best."

Diana Nammi, Director, Iranian and kurdish women's rights organisation

"Each individual case can be subtly different, including that of Mike Tyson. But the definition of rape should remain straightforward. Whenever an individual is unhappy about engaging in sexual liaison with another person, but is forced to do so, their wishes are not being respected. In such instance, a lack of consent is a clear indication of rape. It's true that consent can occur by degrees, from full to partial to none. That's why so many rapes occur within marriage: when a man and woman have voluntarily decided to sleep in the same bed, consent often becomes presumed when in fact it is not. I think Helen Mirren's comments sound too much like they presume consent, and she goes too far in suggesting women 'ask for it' when in fact they don't."

Ann Widdecombe, Conservative MP

"Dame Helen is absolutely right. This is sheer common sense prevailing. Of course if a woman goes back to a man's room she has responsibility for her actions. Of course she should accept that she has got herself into that position. What's she asking for? A cup of tea? If we say to women that you can go as far as you like with a man but once you don't like it then you can go running to the law, well then we are offering them a false comfort. I think Dame Helen is absolutely correct. We can't simply say that women have no responsibility whatsoever: to do that is to treat us like complete idiots."