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.

However:

“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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