January 2007

I pretty much fired off yesterday’s complaint to the BBC (click here to read) in a fit of righteous indignation, finding it cathartic but not really expecting any response.

However… This morning I got a call from a chap at Over To You (the listener feedback show broadcast on the World Service at weekends) saying that not only were they taking my complaint seriously, they actually wanted to feature me on this week’s programme!

Cue panic, excitment, surprise, cynicism, excitement, and panic.

We had a chat and he said he needed to go away, work out who at the BBC should respond to my comments, and generally think about how to do the piece. He called me back later in the day and said that they probably won’t do it this week because they really want to lead with this piece and therefore they want to do it in a later programme. The problem is that they’ve already got this week’s show pretty much planned, apparently, and also they are needing to work out how to do the piece. It is really a high level editorial issue, but it apparently isn’t appropriate to challenge high level editorial people to respond to specific examples, they are more for general issues – so it is not easy to work out exactly how to put the piece together.

Fob-off? Not sure, don’t think so. He did seem keen on doing the piece as he felt it was a really strong one, and fairly topical given the current interest in “size zero” stories.

So now I feel this MASSIVE weight of responsibility to get this right, because I feel as though I am speaking up for The Movement. If I can come across well and put my points persuasively, billions of people could have a moment of feminist epiphany; if not, billions of people will snort and myths of how feminists are wrong and dumb and shrill and uptight and prudish will be perpetuated forever. OK, maybe not billions. Maybe this isn’t a moment that will Change The World. But that’s how this weight of responsibility feels, you know?

Anyway, dear readers, here is where I need your help.

Firstly, any thoughts, tips, ideas on how not to get set up and make a total idiot of myself would be welcome. The show is prerecorded so there’s no danger of live on-air freeze-ups, but I’m quite keen not to say anything completely daft or get taken for a ride.

I think I will be expected to stick to the “topical” size zero issue if I am going to get any airtime, and I will have to be sensitive to the fact that they will edit me out or down if they don’t really like what I say… within those constraints though, I think I am allowed to say more or less what I want.

I have in mind to try and take the general point that BBC presenters rarely challenge and often perpetuate the sexist / sizeist attitudes that enable them, and others, to judge women’s bodies; and that this contrasts with the generally much better approach taken when other prejudiced or discriminatory attitudes are at issue e.g. racism or disability discrimination. I would use the examples I mentioned in my e-mail (see yesterday’s post) as evidence of this. And I would then want to use that general point as a platform to ask the BBC about their editorial policy on this kind of sexism.

So: Do they have an editorial policy on handling stories about women’s body image, to ensure that they avoid trivialising women’s experiences? How does the BBC expect presenters to respond to instances of body fascism / sizeism on phone-ins? What steps does the BBC take to ensure that its producers and presenters have appropriate awareness of these kinds of gender issues? That kind of thing.

Any thoughts on that? Any more ideas?

What kind of questions would YOU ask if you had the chance to actually speak to and possibly influence (albeit admittedly in a probably very minute way) a senior BBC editor on the subject of sexism, the beauty myth, and sizeism generally?

Secondly, the producer person I spoke to suggested that if I do hear any more examples of the things I was complaining about, I should drop him an e-mail as this might help give him the angle he needs to make the piece work. So, if you happen to be a World Service listener and you hear anything in the next few days that makes you want to spit, let me know! If you can tell me when you heard it, on what programme, I should be able to listen-again on the website and come up with an opinion of my own.

Finally, and most importantly – please, people, promise that you won’t hate me and denounce me as a traitor to The Cause if I screw this up. Or if it all turns out in a boring anti-climax because nothing more ever comes of it. Pretty please?

Well, it worked so well last time… So instead of just having a moan over at Erika’s place, I wrote a letter to the BBC:

Dear Over To You team

I have been increasingly upset by some of the comments that presenters have made over a number of recent stories in the news on the subject of steps being taken to address the serious problems that women face as a result of the fashion industry’s dangerous “size zero” culture.

The particular stories I am thinking of include: restrictions introduced in Brazil regarding the age and health of fashion models; regulations introduced in Italy regarding the size of shop mannequins; and an interview with an Australian “plus size” model whose name I unfortunately cannot remember.

In various programmes your presenters made remarks trivialising and demonstrating total ignorance about the deep problems women face – both the models themselves and we “normals” who are expected to try and emulate them.

For example, in relation to the Italian story, more than one presenter made comments that showed how silly he thought the whole idea. On World Have Your Say, Ros Atkins said “I’ve never heard of sizeism” – to a caller who pointed out that the real issue was a much wider culture of making judgements about people, especially women, based on their size. Frankly, this just shows how much Mr Atkins knows and cares about it – not very much. Had it really never occurred to him that people, especially women, suffer discrimination based on their size? If not, why not?

In an unrelated programme, there was a short interview with an Australian “plus size” model. I believe she said she was a size 12 to 14: hardly enormous! I was thoroughly pleased by this piece, until the end when (after the interviewee had been cut off and could not answer back) the presenter made a throwaway comment along the lines of: “that was [the woman’s name], who is what we politely call a plus size model”. The jokey contempt in his voice was audible. To me, it was just so clear that – whatever the woman said, which was incidentally intelligent and robust – the presenter’s real view was that she was just some fat woman and that we were only being polite when we pretended to listen to her point of view or to think that she could really be desirable as a catwalk model. “Sizeism” in action.

It was an outrageous remark for him to make, in the context of what was otherwise a nice positive piece about non-skinny women.

For the Brazilian story, the emphasis was very much on the health of the models (which as far as it goes was laudable), but it was striking that no voice at all protested the idea that fashion models and fashion icons should be thin. It was accepted that the industry would always want women to be thin, that thinness is inherently desirable, and that the appetite for thin women was inevitable. The question whether any of this was true or acceptable was not even asked, never mind given proper consideration.

The BBC should be leading the way when it comes to rooting out sexist, sizeist attitudes like these. Indeed, the sensitivity with which other debates have been held shows how well you can normally handle issues of discrimination. It is unimaginable that your presenters would have acted this way if the story had been about measures taken to combat, say, racism, homophobia or ableism. Yet when the problem relates to (women’s) body size/image, your presenters seem unable to take the issue seriously, handle it sensitively, do proper research or even refrain from jokey trivialising remarks.

So – does the BBC take sexism seriously? Does the BBC care if its presenters display sexist attitudes? And, if so, what are you going to do about it?

These recent examples, by the way, are only examples. They exemplify what seems to me to be a wider problem. It seems to me that the kinds of sexism that Westerm “privileged” women live with are not taken seriously by the BBC. Gender issues that are perceived as non-threatening, such as the “no-brainer” of whether women should be allowed the vote or whether we should be free from FGM, are usually taken seriously and treated appropriately. But gender issues which are a bit closer to home, which if taken seriously would threaten and challenge Western sexism, are trivialised and marginalised.

I look forward to hearing from you

Yours faithfully

Size 10

I am not apparently guaranteed an individual reply, but nevertheless “my comments are important and will be read”. We’ll see.

[Update - as from 16 April 2007, this list will no longer be kept up to date because the "Judges on Rape" post collection can now be accessed as a sub-page via "Lists and Themes"]

Introductory post - in response to the article “Judges try to block rape reforms” (January 2007)

Convicting Rapists and Protecting Victims – Justice for Victims of Rape – consideration of the 2006 reform proposals, and the judicial response to them, referred to in the introductory post.

Sexual History: a judge’s eye view
Part 1, Part 2, Part 3, Part 4, References
A review in four parts of the way that judges have dealt with the problem of defendants impugning rape complainants by bringing their past sexual behaviour into the case – includes judicial interpretation of legislation trying to control this behaviour by defendants. Covers the period from 1975 up to the end of 2006.

Policemen who rape
Analysis of an English legal decision as to whether the police authorities are responsible for police officers who use their office and uniform to commit rape.
(See also: similar case in the United States in which the police force paid a police sexual assault victim, out of court, $400,000.)

Sentencing for sexual offences
Item #1 – Causing or inciting prostitution – 12 months, suspended

False allegations
Part 1 – Katie Davis’ story, and idiotic statistics.

A little bit of light relief:
Safeguarding Liberty and Justice Since 1245


And finally… if you liked that, you’ll like this:

The Story of a Refugee - analysis of a House of Lords decision about an asylum claim by a young woman escaping from the threat of FGM in Sierra Leone.

In Part 1 I looked at the background to and history of the current legislation on when defendants in rape trials and use evidence or cross-examination about the sexual history of the complainant’ in Part 2 I reviewed the climate into which that legislation was passed.

Part 3 will start to look at how the judiciary responded to that legislation, beginning with the case of R v A, in which a rape defendant argued that the exclusion of sexual history evidence was contrary to his human rights in that it did not allow him a fair trial.

The facts of the case were that W and F (A’s friend) were having a sexual relationship. One day F collapsed while W and A were both at his home, and he was taken to hospital by ambulance. W and A then set off to walk to the hospital, and on the way there A had sex with W.

W says it was rape. A says either she consented or at least he believed she did. A alleged that this was in the context of a prior sexual relationship that he had been having with W (despite the fact that W was F’s girlfriend) and wanted to use that alleged sexual relationship in his defence.

The judge ruled that under the terms of s41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) he could not use this evidence. The judge also ruled that although he was compelled to make this ruling under YJCEA, he felt that it was in breach of the defendant’s human rights and therefore readily gave the defendant permission to appeal. (The judge was not himself allowed to rule on the human rights issue, for various reasons.)

The defendant appealed.

The Court of Appeal ruled that A was not allowed to use the evidence to suggest that W actually consented to have sex with him on the way to the hospital. However, it was relevant and admissible in relation to the question of whether he believed that she consented. The judge must (for what this is worth) explain to the jury that any previous sexual activity between the parties did not make it any more likely that W consented, and was only relevant to whether A might have believed that she did. As long as he explains this, the evidence is admissible.

Yeah, that sounds sensible – Not.

The whole point of the legislation was to exlude highly prejudicial evidence of sexual history altogether, not to allow it subject to the proviso that the court has to make a confusing explaantion to the jury about how they can or cannot use the information. Juries, as we have seen, are all too prone to leap to conclusions in rape cases and to be swayed by rape myths. Allowing the evidence AT ALL is going to screw any realistic chance of a conviction, regardless of what words the judge may say about how relevant or otherwise the evidence may be to consent.

So, this time, the prosecution appealed.

For assorted procedural reasons, the question that the House of Lords had to decide was not specifically whether it was appropriate to allow the evidence in this particular case; but a broader question of whether the restrictions on sexual history evidence relating to sex between the complaintant and the accused were in themselves incompatible with the human rights of rape defendants generally.

Lord Steyn (with whom Lord Slynn agreed) thought so, and wanted to basically rewrite the legislation in accordance with the old law:

As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent… After all, to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue… Good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers…“Clearly the House must give weight to the decision of Parliament that the mischief encapsulated in the twin myths* must be corrected. On the other hand, when the question arises whether in the criminal statute in question Parliament adopted a legislative scheme which makes an excessive inroad into the right to a fair trial the court is qualified to make its own judgment and must do so…

[*That a promiscuous woman is more likely to have consented to sex, and that she is less worthy of belief in any event.]

“[O]ne could argue that section 41(3)(c) involves the test of high probative force of the evidence, which makes it just to admit it… [but this] threshold requirement would be too high: often the evidence will be relevant but not capable of being described as having “high probative value“…

Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill… In my view [the Human Rights Act 1998] requires the court to subordinate the niceties of the language of section 41(3)(c)… to broader considerations of relevance judged by logical and common sense criteria of time and circumstances… The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges“It is of supreme importance that the effect of the speeches today should be clear to trial judges… The effect of the decision today is that… the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded.”

With every last drop of respect that is due to the gravitas of his great learned whatsisname, this is just plain nonsense. What he is saying is that because the law would exclude evidence that is “logically relevant” – even though it cannot in any way be described as “of high probative value” – the law is contrary to the defendant’s human rights in the sense that he cannot have a fair trial if the evidence is disallowed. This is rubbish.

The rules of evidence – what may be admitted and what may not – are complex and they regulate what evidence can be heard. The rules of evidence do not say “if it’s relevant, it’s in“. If they did, we wouldn’t need to have socking great textbooks on the subject of what can and cannot be used in evidence. There are any number of restrictions: hearsay evidence can only be used in very limited circumstances; expert evidence is regulated; evidence that is highly prejudicial is limited unless it meets certain tests designed to ensure that it is only admitted if it has proper probative value. The defendant cannot safely attack the credibility or good character of any witness (other than a rape victim, that is) without losing the “shield” which protects him from having his own previous convictions or other bad character evidence put to the jury. But he can drag a rape victim through all manner of torment designed to make her look like a slut who was asking for it – without any danger that his own previous behaviour might be subjected to any similar scrutiny.

Just because it’s relevant, doesn’t mean it’s in. The law can and does regulate what can fairly be put in evidence and the mere fact that a law limits the situations in which a particular type of highly prejudicial evidence can be used by a rape defendant does not violate anyone’s human rights. To suggest otherwise is – dare I say it? – blind, stupid, wilfully ignorant, bigoted and stinks stinks stinks of male privilege. Oh yes.

The aptly named (in this instance) Lord Hope disagreed with the analysis of this brethren. He did not suggest that the restrictions would be compatible with the human rights of every defendant, and left open the possibiltiy of future challenges. But he was clear that the restrictions were not inherently contrary to the right of rape defendants to a fair trial. In particular, he clearly recognised that the whole point of the legislation was the unsatisfactory approach taken by judges in the past, and that it was therefore wholly inappropriate for the judges to effectively strike them down and substitute the specific legislative restrictions with a generalised judicial discretion:

It is plain that the question is in the end one of balance. Has the balance between the protection of the complainant and the accused’s right to a fair trial been struck in the right place? [Did Parliament act] within its discretionary area of judgment when it was choosing the point of balance… The area is one where Parliament was better equipped than the judges are to decide where the balance lay… in this highly sensitive and carefully researched field an assessment of the prejudice to the wider interests of the community if the restrictions were not to take that form was more appropriate for Parliament. An important factor for Parliament to consider was the extent to which restrictions were needed in order to restore and maintain public confidence.”[T]wo important factors seem to me to indicate that prima facie the solution that was chosen was a proportionate one. The first is the need to restore and maintain public confidence in the system for the protection of vulnerable witnesses. Systems which relied on the exercise of a discretion by the trial judge have been called into question. Doubts have been raised as to whether they have achieved their object. I think that it was within the discretionary area of judgment for Parliament to decide not to follow these systems. The second is [that] the section as a whole… contains important provisions which preserve the defendant’s right to ask questions about and adduce evidence of other sexual behaviour by the complainant where this is clearly relevant… I do not regard the mere fact that the complainant had consensual sexual intercourse with the accused on previous occasions as relevant to the issue whether she consented to intercourse on the occasion of the alleged rape.

“For these reasons I consider that it has not been shown that… the provisions of section 41 …are incompatible with his Convention right to a fair trial… All [the respondent] appears to be relying upon at present is the mere fact that on various occasions during the previous three weeks she had had consensual sexual intercourse with him in his flat. As I have said, I consider that this fact alone – and nothing else is alleged about it – is irrelevant to his defence of consent. So I would hold that the exclusion of evidence and questions which relate to it in regard to that defence (but not that of honest belief ) is not incompatible with his right to a fair trial.”

So far: two votes to one in favour of rape myths. What next?

Lod Clyde: bad guy.
Lord Hutton: bad guy.

Rape myths prevail, four to one.

The effect of this is that, essentially, the court has discretion again. The judges will be so good as to take into account the falsity of the “twin myths”, perhaps, in passing, as long as it isn’t unfair to a rapist to mention such things. But on the whole, the decision is that Parliament excluded too much, prevented too much – that sexual history should be included if some old white guy with a hatful of prejudices thinks it is relevant.

What is really striking about this decision is that ALL the judges, even Lord Hope, made a very clear distinction between sexual history generally and previous sex with the accused person specifically. They agreed freely that previous sex with people other than the accused would be relevant only rarely, but they could not say the same about sex with the accused.

Of course, they agreed that a woman has a right to make up her mind afresh each and every time. Of course, she has autonomy and independence and personal dignity. Of course, agreeing to sex one time is not the same as agreeing to sex for evermore. But.

“In my opinion there will be some cases where evidence of previous consensual sexual intercourse between the complainant and the defendant would be clearly relevant, but there will also be cases where such evidence would not be relevant. Where there has been a recent close and affectionate relationship between the complainant and the defendant it is probable that the evidence will be relevant, not to advance the bare assertion that because she consented in the past she consented on the occasion in question, but for the reason given by Professor Galvin, which is that evidence of such a relationship will show the complainant’s specific mindset towards the defendant, namely her affection for him.” (per Lord Hutton)

You see? The fact of previous consent isn’t relevant because it shows she is a slut who would agree to anything (even to having sex on a towpath whilst on her way to the hospital where her recently-collapsed boyfriend has just been taken…) It is relevant because it shows that she loves him. It shows that she has an “affectionate” mindset towards him, and it is that mindset – not the fact of previos sex – which makes consent more likely.

I call bullshit.

In the specifics of this case, A alleged that W had been cheating on F and having sex with A on the side for a period of about three weeks: he says that she “was never against” this sexual relationship. She wasn’t against it?

This does not even on A’s account suggest a “close and affectionate relationship”. It suggests, at most, a few grubby rolls in the hay, meaningless and stupid. To me, frankly, it sounds very much as though any previous sex that did take place was probably itself either rape or very close to it – sex with a barely conscious woman who’d had too much to drink, perhaps, and wasn’t really up to expressing whether she was “against” the idea or not.

Why is it likely W would want to repeat that, on this particular occasion of all times? It is absurd. Yet the judges suggested that previous sex with the accused, in this case, might possibly be relevant and ruled that the judge should reconsider the matter afresh in the light of the judgement of the House.

In any case, two or three shags with your boyfriend’s mate does not equal “affection”. It’s bloody obvious that this particular complainant has NO affection for this particular accused, for reasons which will apply in 99.99% of all rape cases everywhere. Which is to say: if she did have an “affectionate mindset” towards the accused, why would she then cry rape? The very fact that she has accused him of rape – even if her story is a pack of lies! – makes it abundantly clear that if she ever had an affectionate attitude towards this man she does not have it now.

But, hey, women lie all the time right? We can’t be expected to delve into their psyche to even try and come up with some actual convincing reason why this particular woman might have lied on this particular occasion. Probably hormones. Probably just changed her mind afterwards, for some reason. Who needs to try and understand them? Women are unfathomable, right?


Women are not unfathomable. They do not, on the whole, go around accusing men of rape at all. They certainly do not, on the whole, go around accusing men of rape when they in fact had consensual intercourse as part of an ongoing, close, affectionate relationship. Just doesn’t happen. Read my lips: Doesn’t happen.

All this does make you wonder: what is the point of passing laws to protect rape victims, if the judges are going to ignore them? They ignored the intended restrictive effect of section 2 of the Sexual Offences (Amendment) Act 1976. And in this case they have looked section 41 of YJCEA full in the case and blown a big fat raspberry at it.

What will it take to make them see?

I was never in favour of the Human Rights Act, and this case is the perfect example of how stupid it is to make our overwhelmingly white, male, middle-to-upper class, wealthy judiciary the ultimate arbiter of what is or is not on. Gah!

More in Part 4.

I’ve been ploughing through legal documents this evening (in aid of my current “Judges on Rape” theme) but I need a break now! So I’m going to blog a short story of itsy bitsy activism and then go to bed with a book. :-)

For the last couple of weeks there has been a poster up in our office canteen advertising the baked goods of a certain cake retailer whose name shall not be mentioned on this blog. The poster features a black-and-white photograph of a 1950’s-style, perfectly-made-up housewife, bending over at her oven. The caption reads: “Our muffins are moist and sticky, just like Fanny’s”. I’ll say that again. “Our muffins are moist and sticky, just like Fanny’s”.

That might be just the sort of crapulent pun you might expect to see in a lads mag, but it is not something I wanted to be subjected to when I go to get my wake-up tea at 9am in the morning.

Everytime I saw it, I just wanted to SPIT. I don’t even know where to begin in detailing the miosgynist ideas perpetuated and referred to by that image next to those words. Especially not at 9am in the morning when I’m trying to get my head out of the nappy-centric fog of motherhood and ready for a day of being the damnably sharp tool of the patriarchy that I get paid to be.

So yesterday morning, I was unavoidably overhearing the wisecracks of some button-pushing lads in search of coffee, who felt the need to share their views very loudly on the subject of how wickedly funny and clever this poster was… interspersed with ejaculations to the effect that they couldn’t believe that anyone had got away with putting up in the staff canteen… See, they knew it wasn’t really on; that it wasn’t really appropriate; that it was bloody offensive to all women in the building: but what the hell – it’s funny, right?

And I just snapped.

Enough! Nine to five may well be my tool-of-the-patriarchy time but some things are beyond the tolerance of tea-deprived warrior… Some things just Will Not Stand. To cut a long story short, I picked the “right” person to speak to and put in a complaint. The poster was gone by lunchtime.

One small step. But, oh, it was nice.
I felt like a rebel, in patriarchy’s own toolshed.

There is something I’ve been wanting to say for a while now.

It came to me, after I discovered Barb Kobe’s healing dolls and decided to make one of my own (see these one, two posts), that I have made one already.

In celebration of Vulva Liberation Week I made this vulva purse. That creative process, as well as all the other stuff I did for VLW (see here – as if you could have missed it!) was healing for me. It helped me a lot. The purse was a vulva-specific healing doll.

And, while I was thinking about this, I realised something else.

In one post during the week, I described how much and why I disliked a certain word. And that was cathartic. It cleansed me. It cleansed away some of the hurt. That was a healing process too. And now, although I wrote only a few short months ago that I had no interest in reclaiming the word, I’ve changed my mind.

I want it back now.

Because me and my cunt, we’re OK.

In Part 1, I reviewed some of the background to the present law on when a defendant in a rape trial can use evidence relating to the victim’s sexual history. We found that the law provided inadequate protection and that the judges were making it worse.

In Part 2 I am going to look at how the government responded to this.

To begin with, the issue was (among other things) investigated by a Parliamentary working group which came up with its report “Speaking up for Justice” in June 1998. (PDF here). The report found that: “there is overwhelming evidence that the present practice in the courts is unsatisfactory and that the existing law is not achieving its purpose.” (para 9.64, my emphasis).

Important to note – the working group reported that the law was intended to introduce strict restrictions on when sexual history evidence could be used and criticised not the law itself but the application of the law by judges, saying that the courts were not applying the law correctly.

Also important to note – the working group considered whether to try and improve the courts’ (i.e. the judges’) practice by issuing guidance or providing some form of training, instead of having to change the law. However, they concluded that: “given the experience of the last 20 years in operating section 2, the Working Group was not convinced that this option would provide an effective solution.” (para 9.65) That’s about as damning as a report like this can get, when it comes to making criticisms of the judicary. Damning indeed: that not even official guidance was likely to prompt judges to act responsibly in rape trials; that legislation to change and clarify the law was necessary.

The working group therefore reccommended (Recommendation 63) that: “In cases of rape and other serious sexual offences the law should be amended to set out clearly when evidence on a complainant’s previous sexual history may be admitted in evidence.” (para 9.72)

Enter the Youth Justice and Criminal Evidence Act 1999 (HTML here)

This new piece of legislation seriously restricted the circumstances in which judges would be allowed to permit rape defendants to make allegations about a complainant’s sexual history.

In particular, in cases where consent is at issue, defendants are not now allowed to make allegations about sexual history unless the behaviour in question either took place at about the same time as the “alleged” rape*, or it is so similar to what the defendant says the complainant is doing now that it cannot reasonably be explained as a coincidence**.

[* Example: the rapist says that the victim had already consented to rough sex once that day, and that because of this behaviour he genuinely believed that she consented to having sex with him again.
** Example: the rapist says that the woman had given consent but later demanded money and "cried rape" when this was refused, and there is evidence that she had treated other men in the same way on previous occasions.]

The court must also be satisfied that to refuse leave would result in the jury, or the court, reaching an “unsafe conclusion” on a relevant issue at trial, and that the defendant’s true aim is not just to undermine the complainant’s credibility. Finally, the restriction extends to questions about any kind of previous sexual behavious – including pervious sex with the accused person.

This seems, then, to be a much stronger law in that it seems that it should have made it a lot harder for rapists to cry “Slut!” on those odd occasions when they are brought to trial. The defence would have to show that the victim’s behaviour was directly relevant to an issue other than purely to credibility, and that it came within one of the specific categeories of case where such evidence is to be allowed.

However, this shocking study (Jennifer Temkin, “Prosecuting and Defending Rape: Perspectives From the Bar”, June 2000 – I will write more about this another day) into the attitudes and experiences of barristers who prosecute and defend rape cases predicted that:

“[The new legislation] will prohibit the use of sexual history evidence in all cases save those which are specifically designated… [but] there must be concern that the exceptional categories have been drawn too broadly… it would seem that the legislation would frequently permit sexual history to be introduced. This study indicates that the defence will make use of every opportunity which the law provides to ensure that sexual history evidence is admitted.”

So, any bets on what happened when the barristers and judges got their hands on this?

Find out in part 3…

Safeguarding Liberty and Justice

It all started with a 1970s rape trial in the case of DPP v Morgan, in which one defendant invited three friends (the other defendants) to his house and said that they could take turns having sex with his wife: he said that she might put up a bit of resistance but that this was just her way of showing how much she was enjoying herself.

The House of Lords ruled that if they honestly believed this story, and honestly believed that she was consenting, then they could not be convicted of rape. If the accused person honestly believed that a woman consented to sex then he could not be convicted of rape, no matter how stupid his belief might be, no matter how unreasonable, and no matter how clear the woman actually made it that she did not want sex.

(As it happened, the jury realised that their story was a pack of lies and the conviction was upheld – so everything was fine, right?)

A perception that this might not be entirely fair led to the Report of the Advisory Group on the Law of Rape (1975; Cmnd. 6352; chair, Mrs Justice Heilbron), which recommended assorted changes including that the defendant’s age-old and much-valued right to cross examine rape victims on their sexual history should be curtailed.

As Lord Slynn of Hadley more recently put it: “Such a course was necessary in order to avoid the assumption too often made in the past that a woman who has had sex with one man is more likely to consent to sex with other men and that the evidence of a promiscuous woman is less credible.”

Enter Section 2 of the Sexual Offences (Amendment) Act 1976.

This changed the law so that the defendant could not bring in any evidence about, or cross examine a victim about, her sexual experience with any person other than the defendant himself… unless the court (i.e. the judge) gave permission. The judge was free to give this permission wherever he was satisfied that “it would be unfair to that defendant” to prevent the victim’s sexual experience being brought in as an issue.

This did not go anything like as far as the Heilbron report recommended. That report recommended that sexual history evidence relating to the complainant should only be allowed in the same situations where evidence of the defendant’s previous convictions or previous conduct would also be admitted.

A defendant’s previous conduct is only allowed to be brought into evidence if it in some way proves or helps to prove his guilt of the crime he is charged with: for example if he did the exact same thing twice before, in the exact same circumstances. Even then, the court has to take into account that evidence of past bad conduct is inherently prejudicial and must weigh up the pros and cons of allowing the evidence. The Sexual Offences (Amendment) Act 1976 did not go anything like as far as this, because the only question for the judge to weigh up was whether it was “unfair to the defendant” if he could not ask about sexual history.

Of course, this left the door wide open for defendants to use this line of questioning or evidence in any case where it could be described as relevant – there was no balancing out its relevance against its prejudicial effect, and no need for the relevance to be anything other than marginal. The result was that once it was determined that the evidence was relevant, it was inevitably treated as unfair to the accused not to admit it. And the previous conduct of the complainant was almost always seen to be relevant in cases revolving around consent – because her credibility was always in issue, and because her consent to any previous sexual encounter was always seen as relevant to the likelihood of her consenting to the sexual encounter in question. So it was still alarmingly common for the accused to be allowed to damage the victim’s credit by evidence or cross-examination about her past sex life.

Adler (Rape on Trial) found in 1989 that 40% of defendants wanted to use sexual history evidence, and 75% of those defendants were given permission. Often the cross-examination went beyond what was needed in terms of relevance and became a smear campaign. Lees (Carnal Knowledge: Rape on Trial) found in 1996 that over 50% of complainants were questioned about sexual history, sometimes without any application even having made to the judge for permission.

All of that is bad enough, but there was not and had never been any restriction at all on cross-examining the complainant on her sexual past with the accused. Given the increasing prevalence of date rape, this has obviously been an increasing problem as more and more defendants try to make the argument that Consenting on Monday + Consenting on Wednesday = Consenting on Friday.

In short – victims were being humiliated in court, every possible “indiscretion” being treated as evidence of promiscuity, every little inconsistency being treated as evidence of dishonesty, every previous sexual act being treated as building up a picture of someone who was happy to consent to just about anything with just about anyone. The law was providing woefully inadequate protection, and the judges were not even applying what little legal protection there was. Nor were they intervening – as they are more than entitled to do – in any evidence or cross-examination that went over into irrelevant smearing. They were letting the victims get screwed all over again.

Back to square one.

Part 2 will cover how the government eventually responded to these issues, and what the judges made of it. It will make interesting reading.

Let’s start in the right place.
(Follow-up from this post here.)

Let’s look at the proposals that the judges are trashing – proposals issued by the Office for Criminal Justice Reform in March last year. The PDF is here. Highlights below.

Firstly, in reading this paper I wanted to look at what the report shows us about the “official” line on exactly how well juries do at present in convicting rape cases. Secondly I wanted to concentrate on what is being proposed. And what is it that the objecting judges find so obnoxious?

(I did also want to get the judges’ objections straight from the horse’s mouth, as I always find this the best way of understanding what people mean. Unfortunately although many, many organisations responding to the OCJR consultation did publish their responses, it seems that the judiciary did not. Moreover, although the OCJR promised to publish a “summary” of the responses within three months of the closing date for the consulation (i.e. by October 2006 at the latest) this does not appear to have happened either. Hush, hush, wink, wink. You know. I am therefore having to rely on the article cited by Sparkle, as this is the only thing I have found so far which details the judges’ objections.)

What does the paper show us about how well juries are doing under current law?

“Fewer than 6% of rape cases reported to the police ultimately result in a conviction.” (p5)

By way of comparison, this Observer article castigating the appallingly low conviction rate for serious violent offences gives a conviction rate for rape of 5.5% to compare with around 9% to 10% for other serious violent offences. Using these figures, the rate for rape is not much more than half of the conviction rate for other serious violent offences.


“Sexual violence is massively under-reported by both female and male victims.The 2001 BCS IPV [British Crime Survey Interpersonal Violence unit] found that only about 15% of rapes came to the attention of the police. 40% of those who had suffered rape in the 2001 BCS IPV had told no-one about it.” (p8)

So 15% of rapes are reported, and only 6% of these result in a conviction: that’s an overall conviction rate of 0.9%.

(And that, presumably, for what this remark is worth, only relates to the women who are able to clearly identify their experience as “rape”, because they are confused afterwards about whether they did “consent” or because they consented under duress or because they didn’t even know exactly what had happened to them because they were unconscious at the time.)

Using these figures, then, the rate of conviction for rape is only about a tenth of the rate for other serious violent offences. That is a staggering difference in the way that these two different types of violent offence are treated by our criminal justice system.

“Whilst the number of rape convictions has remained relatively stable, the number of rapes reported to the police is increasing year on year, meaning that the proportion of rapes resulting in a conviction has steadily declined.The rate of conviction for rape has, therefore, decreased from 33%, one in three, of cases reported to the police in 1977 to 7.5%, one in thirteen cases, in 1999, to 5.29%, one in twenty cases in 2004.” (p8)

“Research indicates that many reported cases that do not proceed to conviction fall out of the process at the earliest stages, with between half and two thirds dropping out before referral to prosecutors. When cases do get to court, a relatively low percentage result in a conviction. For example in 2004, 702 people tried at the Crown Court for rape of a female, were convicted, representing 28% of total rape prosecutions.” (p9)

Courts therefore acquit 72% of the defendants brought before them accused of rape. The CPS only brings cases where it believes it can secure a conviction. It has already filtered out the cases it considers to be weak. Of the cases that the CPS considers to be strong, and where the CPS believes that it is likely to secure a conviction, 72% result in acquittal.

It looks to me as though there must be something seriously wrong with the trial system. Even where CPS prosecutors – who know in advance the difficulties they will face when prosecuting a rape case so are therefore likely to be all the more cautious in which cases they consider to be strong enough to merit proceeding – even where the prosecutors are sure they have enough evidence to secure a conviction, 72% of defendants are walking free.

So what is going wrong? Back to the paper.

There are a number of issues raised, but the most compellingly relevant one here is this:

“Research published by Amnesty International in November [2005] reported that a third of people in the UK believe that a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner. The research also showed that similar attitudes exist in relation to clothing, drinking, perceived promiscuity, personal safety and whether a woman has clearly said “no” to the man. The fact that these rape myths are so widely believed has considerable implications for the willingness of juries to convict in cases of rape.” (p10)

If one third of the potential jurors already admit that they believe that most women are responsible for what happened to them unless they exhibit the “virgin madonna jumped on from behind the bushes” characteristics demanded of “real” victims – how many more believe this subconsciously but do not admit to it?

How many more believe the “subtler” rape myths:

  • if someone is raped by a partner she would immediately leave the partner, so it can’t have been rape if she chose to stay with you after the event;
  • lots of women like it rough, so a few bruises mean nothing;
  • if she says yes and changes her mind later it is unreasonable to expect you to have enough self-control not to continue on your predetermined course;
  • if someone was raped she would report it immediately, and if she didn’t report the rape immediately then she is probably lying;
  • you can’t really rape a woman who works as a prostitute because “of course” she would have said yes, if you’d paid, so that’s as good as actually saying yes, and anyway she probably did agree and is just upset you didn’t pay her;
  • if she has previously had sex voluntarily with you then she probably consented this time as well (and even if not, well it’s not really rape is it?);
  • most women would lie about rape just because they regretted having sex when they woke up next day and realised that it was a mistake;
  • most women would lie about rape just because they wanted to get at the accused;
  • women who are drunk probably agreed to have sex because they are drunk and uninhibited, so that drunk women are women who literally can’t say no;
  • and on they go…

How many jurors believe some or all of these myths?
The answer has to be: most of them. Perhaps: almost all.

These are the twelve good men and true.

These are the twelve ordinary people who we trust to exercise their “common sense” and to know without legal definitions what counts as consent and when a woman is or is not able to give consent. These are the ones with whom we entrust our daughters, our sisters, our mothers – for justice and truth. We trust them to do justice, and to see truth.

So what did the OCJR propose that was so obnoxious?

‘Capacity’ in relation to consent

“Consent is at the heart of most cases of rape. This is not simply saying ‘yes’ or ‘no’ but doing so through choice, and with the freedom and capacity to make that choice.We are seeking views on whether we need to define that capacity in law to assist the courts and juries in cases where drink or drugs may have impacted upon the complainant’s ability to choose.” (p5)

The Sexual Offences Act 2003 gave a definition of consent, and stated circumstances in which it would be presumed (but not conclusively presumed!) that there was no consent because for example the victim was asleep or had her drink spiked without her knowledge.

However, it did not say anything about a person who was voluntarily intoxicated (unless they were actually unconscious) and nor did it define when a person had capacity to give consent.

The default position then is as per the common law, which is considered to be (by analogy with cases involving children’s consent) that “a complainant will not have had the capacity to agree by choice where their understanding and knowledge were so limited that they were not in a position to decide whether or not to agree.” But as nothing is defined in statute and there are no specific rape cases addressing this, nothing is certain.

The effect of this vague legal position was seen in the infamous R v Dougal [2005] – the case of the Aberystwyth student who was so drunk at the time of the (do I have to say “alleged”?) rape that the prosecution felt unable to proceed with the case, as they felt unable to prove that she had not given consent. The question whether she was capable of giving consent was not even left to the jury to decide: although we can imagine how they would have decided, I think.

The consultation paper asked whether a statutory definition of capacity should be introduced, but did not attempt to suggest any specific definitions.

The judiciary, it appears, are against this in principle on the basis that (to quote one judge) ‘The line [between capacity and incapacity] is something that is probably best left to a jury to decide on all the evidence. They will hear what the parties say, what happened, and so on. At what point does the law say this person is incapable?… In the long run the average jury of 12 people know when drink means that you’re incapable and when it means you’re not.’

No legal test AT ALL for whether a person is capable of consenting. No legal definition. No guidance as to when a person can or cannot be treated as being capable of giving consent (despite the fact that the law already covers this off in relation to children’s consent cases). No guidance to help judges give directions to the jury about how to reach their decision.

Just leave to the good old common sense of our wonderful, sensible jurors.

Expert evidence

“In order to place juries in a more informed position from which to assess the credibility of a complainant, it is proposed that prosecutors should be able to present general expert evidence concerning the psychological impact of sexual offences upon victims.” (p5)

Given all the rape myths that jurors actually believe (see above), it would seem like a perfectly sensible idea to get an expert to articulate and debunk them, to allow the jurors to open their eyes to an accused’s efforts to take advantage of those myths.

“Currently in a criminal trial, any omission, discrepancy, error, delay in reporting, unbecoming or puzzling behaviour that a victim may exhibit before, during or after the alleged rape, will be used by the defence as a basis to questioning that person in order to make him or her appear unreliable or untruthful. It is the job of the defence to probe and test the evidence of the prosecution, and it is in the interests of justice that this should continue.

“However, there can be another explanation as to why a victim omits detail, reports the offence late or exhibits other puzzling behaviour. This explanation is grounded in the common psychological reactions that occur if a person has suffered a traumatic event or the realities of being in an abusive relationship. Currently such information is not being placed before a jury or magistrates for consideration, and therefore the decisions on the credibility of a victim or witness are made in absence of this relevant knowledge.

“General expert evidence goes to the heart of this problem as it will explain to jurors and judges that such apparently problematic features of a person’s evidence are common and should not necessarily lead to the conclusion that the victim/witness is lying or unreliable. The court will be informed of the acknowledged psychological reactions that occur after a prolonged relationship of abuse and/or after a deeply traumatic event. Such reactions can affect a victim’s ability to give a coherent, consistent account of their experiences and cause behaviour which, to an onlooker, is puzzling as it does not match the expectation as to how ‘genuine’ victims act or react…

“The inclusion of such evidence will also assist in challenging the erroneous assumptions and preconceptions that surround victims.These misperceptions and myths have been the subject of much research and academic debate… It is hard not to conclude that certain societal attitudes do amount to a substantial contributing factor to the low conviction rates in rape cases.” (pp16-17)

Why do the judges find this objectionable?

Because using experts to dispel the rape myths that so manifestly do influence juries and hamper rape convictions “would cause delays and prove expensive, unnecessary and “inappropriate”. (Quote taken from this Guardian article.)

Whatever the hell “inappropriate” means in this context it is absolutely clear that expert evidence to dispel rape myths is NOT unnecessary. The evidence presented and referred to in the consultation paper itself clearly shows how rape myths play on the minds of jurors, and often subconsciously, so that they cannot assess the witnesses’ respective credibility effectively.

As for expensive: yes, justice is expensive. Are we prepared to step up and meet the cost?

We spend a lot of money on murder trials, calling experts galore if we think they are necessary. We spend stupid amounts of money on fraud trials, calling even more experts galore. We spend even more money on trying and re-trying people who are actually innocent, or who probably did it but will never be convicted regardless of what you do because the police made some stupid investigative error like, oh I don’t know, beating a confession out of their chosen suspect.

But rape? Sorry, love, justice is too expensive for you.

First complaint

“We would welcome views on whether Section 120(7)(d) of the Criminal Justice Act 2003 should be repealed in order to ensure that all relevant evidence of complaints made by victims in rape cases are admissible as evidence in a trial, irrespective of how much time has passed since the alleged conduct.” (p5)

The current position is that, where it is alleged that a victim is lying, it is possible for the court to look at the victim’s original complaint about the rape (to the police, or to a friend) to help them decide if she is telling the truth. For example, if the original complaint is consistent with what the victim is saying in court, then it might be thought more likely that both complaints are truthful, whereas if there are serious inconsistencies then it might be thought that the victim is not such a reliable witness.

The problem is that there are restrictions on when the court is allowed to look at “first complaint” evidence – around how soon after the attack the victim must make the complaint, around whether only the first complaint is admissible or whether other complaints can be considered to see if the victim has been able to repeat her account consistently throughout.

The proposal is that these restrictions should be removed, subject to giving the court discretion to exclude any evidence which it would be unfair to allow, so that the court can consider all relevant complaints made by the victim. I have not seen any speciifc objections to this, so perhaps it is safe to assume that the judiciary have no particular problem with it?

Special measures: use of pre-recorded video evidence

“Views are sought on whether the framework should be altered so that video recorded statements of complainants involving serious sexual offences taken by the police will automatically be admissible as evidence in chief at a trial. This will be subject to the witness agreeing that they wish to give evidence in this manner, and the court agreeing to admit the evidence having considered the interests of justice do not demand otherwise. Views are also sought on proposals to relax the current restrictions on the prosecution asking the witness questions in addition to the showing of the video-recorded statement.” (p5)

Currently, there are various arrangements in place to enable particualrly vulnerable witnesses (children, vulnerable adults, those subject to intimidation, and victims of sexual offences all have various protections) to give their evidence more effectively and less stressfully. One of these special measures is to videotape an interview with the witness before the trial, which can then be used as their evidence-in-chief in court.

The current proposal is that this last measure should be available as an option in rape cases. The victim would be interviewed prior to the trial – perhaps by police shortly after the first complaint is made (which ties this in with the previous suggestion regarding first complaints). Such evidence may be thought more compelling and more reliable than evidence given months or years later when the case finally comes to court – by which time of course the “lying accuser” will have had “time to get her story straight” and is more likely to be disbelieved by the jury regardless of how compelling her evidence might appear to an unbiased onlooker.

Why do the judges object to this?

For precisely the same reason that the Government is proposing it: because a prerecorded statement made at or around the time of the complaint will be more compelling, have greater impact, and will bring home to the jury just how upset the victim really, genuinely was. They will make it harder for them to see her as a calculating liar, harder for them to discount the reality of what happened to her, harder for them to view it as not much to complain about.

“… judges are concerned that this would be too emotive and not help establish the truth of the allegations. They argue that some people are particularly good at faking distress.”

The distress will certainly seem more real if you can show it on a video made nearer the time of the attack, but this will be a bad thing because, it seems, (1) distress is not relevant, but only emotive – how distressed a person was when they made the complaint does not go to show that they were telling the truth; and (2) some people are particularly good at faking distress – and showing videos of distressed people who might be faking it is not conducive to justice.

Let’s look at that a bit more closely:

Distress is not relevant? That a complainant was in genuine distress at or around the time when she first reported that she had been raped has no relevance to the question whether or not she was telling the truth? I understand that it cannot be determinative because yes she might have been faking distress and, yes, she might be distressed only because she regrets the encounter with hindsight and not because she did not consent at the time. But surely it is relevant. Surely it will at least help the jury in reaching a decision about whether or not the victim is being truthful, even if it cannot on its own determine the matter. Surely?

Even if relevant, it should be excluded as evidence in case it is faked?

Firtly, this is clearly a suggestion that panders to and perpetuates rape myths about the lying victim – instead of seeking to dispel those myths as is the purpose of these OCJR proposals.

Secondly, it is inconsistent with the judges’ previously stated views about the common sense of juries. Are those sensible, ordinary people now so easily swayed by emotive testimony that they cannot see through it when it consists in faked distress?

Because that is what the judges are suggesting: that many women lie about rape; and that they typically or frequently do so in such a way that giving them the “emotive” stage of a police station interview on videotape is likely to make it easier, rather than harder, for them to dupe jurors.

Thirdly, it is completely illogical anyway. Someone who is “particularly good at faking distress” will also – in this victims-are-lying-dramaqueen-sluts fantasy land, I mean – be particularly good at playing the innocent, virginal victim that jurors prefer, and they will be able to manipulate the jury just as well in the court room as on any prerecorded video.

Catching someone on video, at the closest moment possible to their first complaint, is likely to make truthful witnesses seem more truthful. For witnesses who are not truthful (I think the suggested rate of untruthful rape accusations that is most commonly accepted is around 2%, although how many of these get to trial is another question) the procedure would in most cases actually help jurors identify that they are in fact faking it rather than making it easier for the lying-slut-whore to con them.

So why is this suggestion so obnoxious to the judges?

Because it will help women who are raped get justice, because their suffering will become visible, because fewer men will get away scot free.

And well they might wonder why I am so angry with them.

Backlash: to be continued.

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