(See also Part 1, Part 2 and Part 3)

In this series of posts, I’ve been looking at how judges have responded to and interpreted the law about when evidence of a complainant’s sexual history can be used by a defendant in a rape trial. In Part 2 I covered the introduction in 1999 of strict controls on the discretion of judges to admit this highly prejudical evidence (section 41 YCJEA) and in Part 3 I looked at the decision of the House of Lords to reject these restrictions, in essence, bringing discretion back into the law where Parliament had already decided that the judiciary could not be trusted with discretion.

In the fourth and final part of this series, I plan to bring things up to date, with a look at what has happened since then.

In 2004, Professor Neil Kibble published research on how judges viewed the operation of the 1999 legislation.

A preliminary word or two:

  • I was unable to find the actual report published by Prof Kibble, and am relying on summaries published in The Barrister, The Times and The Guardian.
  • Prof Kibble was opposed to the 1999 legislation even before it came into force. He was much quoted in the decision of the House of Lords in R v A (that the legislation was contrary to rape defendants’ human rights and should be, at the very least, watered down) and is generally in favour of admitting sexual history evidence.

Professory Kibble interviewed 78 judges, mainly circuit judges but also some appeal court judges, to understand their views on how the new law was working after R v A.

Unsurprisingly, the judges tell us that juries are highly influenced by rape myths:

One said: “Juries always want a victim who is as pure as driven snow. Particularly women on juries are very particular about young girls who go out and have nine vodka ices and then march off to some flat with a bloke. I don’t think there are many women on a jury who are particularly sympathetic in that situation. I think they like their victims to be victims who have on the whole behaved in a pretty reasonable way and have not brought this on themselves in any respect.”

Another said: “Juries here are usually pretty happy to convict in most cases, but they will not convict in date-rape cases and especially if there has been a history of the two of them out drinking together. I’ve had maybe four or five of those cases and in not one has there been a conviction, even though when I see the witness in the witness box I believe her.”

Kibble also writes: “Judges were highly sceptical of the argument that sexual history evidence was overwhelmingly prejudicial and should therefore generally be excluded. Their responses suggested that the question of the prejudicial effect of sexual history evidence was not as clear-cut as some critics would suggest.”

Interesting: even though the judges appear readily to admit that rape myths are highly influential, they do not think that the sexual history evidence is highly prejudicial. Judges acknowledge how influential rape myths still are, and they seemingly understand that the proper and legitimate purpose of restricting sexual history evidence is to prevent defendants from playing on two such myths* to secure their acquittals, re-traumatising the complainant in the process. So how is that they question the need to exclude this evidence? How can they fail to see how prejudicial it is?

[* The “twin myths” that a promiscuous women was (1) more likely to have consented and (2) less worthy of belief in any event.]

The only clear answer is that the judges themselves believe the rape myths. The words of the first judge quoted above show this all too clearly, since he appears to blame victims for “bringing it on themselves” if they behave “unreasonably” by committing the horrendous crime against femininity that is getting drunk and subsequently entering a man’s home.

Quoting again from Temkin’s 2000 study, here are some comments made by barristers who specialised in or were very experienced in both prosecuting and defending rape cases (barristers, by the way, are proto-judges, and the interviewees included one actual part-time judge who tries rape cases):

  • The silly woman is prepared to be picked up by a stranger and go back for, quotes, coffee, you know, what does she expect? If a woman does that, can she really be surprised that a jury will say that she may have consented to sex? Again a hitch-hiker or somebody like that.
  • If somebody has been having a sexual relationship with somebody before, whether it’s because juries feel the same way as I do, that it’s really not a terrible offence …
  • I feel very strongly about this. I feel very strongly that it’s a great waste of public money to prosecute the ex-husband rape or the ex-boyfriend rape unless there is extreme violence involved or it’s part of a sort of campaign of harassment. I have had to prosecute an awful lot of cases where people have still been sort of seeing each other after having a relationship, where he wants it and she doesn’t and it happens. Well she says it was a rape and probably, yes, it really was. But frankly does it matter?
  • I tend to size up the complainant and decide whether the more aggressive approach is required or whether the softly, softly (approach). If you’ve got a sort of tarty woman then you’re not going to get the softly-softly approach. I mean if you’ve got a tarty little number with a mini-skirt round her neck who’s brassy and will give as good as she gets then you’ll be firm with her but if you’ve got some little mouse then you’ll treat her gently and sympathetically because you’ll get more out of her.
  • This girl has gone into a bikers’ pub wearing a mini-skirt and a see-through shirt. That’s part of the story. I don’t think they (young girls) realise the effect of their appearance on men. Guys get turned on if they can see through the women’s clothes. Dress is significant.
  • To be honest there are lots of women who make complaints of rape who would sleep with the local donkey and the defendant says, ‘Well, how can she possibly say I raped her when she goes with everybody in sight. I want that brought up’. To an extent, I suppose, they’re entitled to have that done because a jury must consider that if she sleeps with nine out of ten men why is it that she wouldn’t sleep with this one.
  • I think that a woman who has had sexual experience and, particularly varied and a lot of sexual experience, is frankly more likely to consent to a sexual experience with someone new than someone who hasn’t.

Barristers were very clear that jurors are highly influenced by rape myths. Highly, highly. And the above comments show that the barristers believe those myths too. And if barristers believe all the rape myths, then judges – who are as a rule, older, whiter, maler, and more socially conservative than the pool of barristers from which they are drawn – must do so a fortiori and a fortiori. Meaning, they are worse.

Yet Kibble’s study concluded – despite the fact that judges themselves believe rape myths – that judges should be given greater discretion about what sexual history evidence is relevant, because judges know best, and because it is not fair to exclude the evidence if the judges think it relevant.

In 2006, Liz Kelly, Jennifer Temkin and Sue Griffiths published a new, Home Office sponsored study: Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials.

This study carried out statistical analysis relating to rape trials, analysis of court decisions about the new law, and included observations of trials, interviews with judges, barristers, police officers and complainants, and interviews / questionnaires to ascertain the experiences of those supporting complainants – such as rape crisis centres and the witness support service.

Some of their key findings were:

  • Although even the House of Lords in R v A felt that sexual history evidence would not often be relevant, it was found that applications to use this type of evidence were made in one third of trials, with two-thirds of applications being successful. Thus judges are authorising sexual history cross-examination in more than one in five rape trials.
  • In fact, barristers frequently asked questions about sexual history, or otherwise introduced sexual history into the case, without permission from the judge at all. The study found that in three-quarters of the cases sampled sexual history evidence had been used. The judges ought to have prevented it: they did not.
  • The courts even allowed sexual history evidence to be used in the case of minor complainants. The evidence was used not to cast them as sexually vulnerable children with a history of exploitation; but as sexually active and therefore as more likely to consent*.
  • Many judges did not even know the law anyway.

[* Which is reminiscent of the pre-YCJEA case of R v Elahee (1999). A 13-year old girl alleged that a 43-year old man had led her into the lobby of a takeaway restaurant and raped her. He claimed that she had approached him, touched his penis and then nothing further had happened because he had pushed her away. The Court of Appeal ruled that sexual history evidence should be admitted to show that she was a person reasonably likely to have done what the defendant claimed. The sexual history evidence in question? That she had had sex a year before the rape, with her then boyfriend. As the Court of Appeal put it: “If the jury knew [that the complainant was not a virgin] they might take a different view of the case.” Only if they are prejudiced as hell and blinded by rape myths, though. Oh yeah. They are.]

Before I finish, an important “technical” issue:

There is a set procedure for making applications to use sexual history evidence (this involves making an application in writing beforehand stating the questions that will be asked, so that at least the complainant will know what is coming and the defendant will be limited to the specific questioning that the judge has allowed). However, this is only followed in a few cases. Most applications are made verbally in court, sometimes just before or even during cross-examination of the complainant – showing clearly that this is not about forgetting to comply with some technicality, that it is all about timing things tactically. The judges here are faced with a problem – it will seem harsh to them to prevent the defendant from relying on relevant evidence simply because his barrister did not follow the right procedure. So, they let them get away with it.

Among other things, the authors of the study recommended that better training and clearer guidance be given to ensure that the current procedural rules are understood, and followed. These recommendations were echoed in another key government report in 2006, Convicting Rapists and Protecting Victims – Justice for Victims of Rape (see here). In response we brought out yet more legislation: the Criminal Procedure (Amendment No. 2) Rules 2006 to simplify and clarify the procedure. Will that encourage anyone to comply with the procedure? Will that encourage judges to hold defendants to it, if they fail to make proper applications before the trial? That remains to be seen. But somehow, I doubt it.

So where now?

We have seen that judges and barristers, as well as jurors, are all firmly invested in rape myths, including the specific “twin myths” that section 41 of YJCEA was supposed to address.

We have seen that judges and barristers are doing their best to avoid, ignore or circumvent the legislation designed to combat these rape myths. They are keen, wherever reasonably possible, to let defendants subject complainants to intrusive questions that any attempt at rational thinking will show, and Parliament has explicitly deemed to be, wholly irrelevant. They bend over backwards to prevent any possible difficulty being placed before the defendant as he seeks to smear and torment his victim by talking up her “promiscuity”.

So where now?

What is clear is that it will take little short of a revolution in judicial thinking before sexual history evidence will ever be treated in the way that Parliament intends. What is clear is that as long as the judges themselves, and the barristers, continue to believe in the rape myths that section 41 was designed to squash, those rape myths will not be squashed. What is clear is that no matter what laws are passed, judges and barristers will continue to ignore them.

What is not clear is: when, dear goddess, will it end?