Deborah Orr: Rape, compensation, and personal responsibility

There was no need, in the end, to offer Hayley Jordan compensation at all. If she had ever sought cash from the Criminal Injuries Compensation Authority (CICA), though, she would no doubt have come under the category of victims who, strictly speaking, stand to get a percentage knocked off their payout because consumption of alcohol "contributed to the circumstances that gave rise to the injury".

It has come to light that in 14 cases involving rape this year, women had their claim for compensation reduced in value because this clause was cited. The woman who brought the practice to public attention says that receiving CICA's letter informing her that she was to be financially penalised because she'd had some drinks before she was attacked, had been "like a slap in the face". There is no reason to doubt her assertion.

The authority has since stated that applying the cause in this case was an error, and the victim has now been given the full amount due to her. Campaigners, however, argue that in rape cases the clause should never apply. Actually, it rather looks as if their argument is all but won.

The clause was brought into play in only 1 per cent of rape claims, which hardly points to an epidemic. Alcohol tends to feature in many such cases, which is why the law makes it clear that an incapably drunk woman must be presumed unable to offer consent. If CICA, always mindful of its budget, is whittling its claims so infrequently, given that it must have many opportunities to do so, then surely this point is mostly accepted.

Those 14 exceptions are troubling all the same. Rapists tend to be motivated by their contempt for women generally, and any quarter given to the idea that some of this contempt might be deserved, under certain circumstances, is horrible and dangerous.

Certainly, Hayley Jordan had been drinking too much. In fact, the 20-year-old had become so tipsy while attending a neighbour's afternoon barbecue with her two small sons that she had been grateful when three new friends had offered to make sure that she and her boys got home all right.

When she woke up hours later, on the sofa in her living room, Hayley couldn't believe the state she had got herself into, on just a few glasses of wine. She counted herself lucky that her boys, Daniel, four, and Harvey, nearly two, had not come to any physical harm. Her sons had clearly been shaken by their period of enforced independence though, because the elder of them, in particular, seemed troubled and withdrawn.

Some weeks later Hayley discovered what had really happened to her. The solicitous chaps who had escorted her back to domestic safety had waited until she lapsed into unconsciousness then filmed her on a mobile telephone as they committed a simulated sex act against her using her television's remote control. The children had been in the house while this crime was being perpetrated. Daniel's voice could be heard, recorded on the phone, saying: "Don't do that to my mummy."

Kyle Scott, 20, David Hedges, 22, and Adam Sorrenti, 19, had distributed their entertaining footage among their friends and one, a convicted armed robber, contacted the police. The police tracked Hayley down, and told her what had been done to her. In a sadly typical example of the way in which the victims of rape often do assume a measure of guilt and shame themselves, Hayley did not want to press charges.

Everyone knows the now-standard legal argument. Sexual history, provocative dress, outrageous flirting, even excessive consumption of alcohol: none of it, in theory at least, is an excuse for rape any longer. Yet many people don't really believe this. An Amnesty International report in 2005 found that one in three British people considered that female rape victims were at least partially responsible if they had behaved in a way that their assailant considered to be "provocative".

Whether they think this is fair or not, women do of course accept that their own careful behaviour can make them less likely to be raped. Some feminists may long to "reclaim the night". But most of us accept that walking home alone, after dark, in an unpopulated area, is a stupid thing to do, or that being alone in an intimate situation with a man – even one we know well – can lead to trouble. As for wild drunkenness, I know of no one who argues that it is a fabulous social innovation. It's a huge leap though to contend that if you fail to take any or all of those precautions, then you have got what's coming.

Hayley believed, presumably, that walking home in some company would protect her, rather than making her more vulnerable. No doubt one could argue that Hayley had brought her troubles on herself, and on her family. People consider it awfully bold to suggest that a woman who gets herself assaulted when drunk is rather like a householder who gets burgled while leaving the door open. And it is rather less contentious to suggest that no adult should become intoxicated while looking after children. Poor Hayley was one of those women who did not need to be berated for her lack of personal responsibility though. In the crippling psychological aftermath of the attack, Hayley's children were taken into care, and she killed herself with an overdose of anti-depressants.

She did not live to see two of the men plead guilty to the charges against them, and she was not around to give evidence against the third, Kyle Scott, who denied serious sexual assault, even though the film clearly attested that he had been the chief instigator of the crime. At his trial, the only evidence from Hayley came in the form of a 50-minute taped police interview, which was dominated by her tearful worries about what their witnessing the ordeal had done to her sons. Scott was found guilty by a visibly disgusted jury, and jailed for 10 years.

The point in Hayley's case is that no matter how remiss her behaviour might have been, she did not deserve to be subjected to that callous violation. The police, the Crown Prosecution Service, the judge and the jury were all quite sure of that. Hayley's neighbours had assured her that it was fine to leave the door open, because they'd be sitting on the front steps, and that it was fine to have some drinks because those same people would ensure that she and her children would be ok.

Hayley, who had recently left a violent partner, was a fool to trust these men, who invited her to their party, and who, it is reasonable to assume, made some investment in ensuring that she drank beyond her normal limits. Yet how could she have been expected to imagine that these men were so vile? Who wants to live in a society that says men cannot be trusted and women must always be on their guard against them? Very many, judging by the willingness of even the most reasonable people to believe that it is tiresome and boring to contend that rape is rape is rape.

d.orr@independent.co.uk