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Criminal justice systems all over the world have failed adequately to
address the problem of rape. It is estimated that in Switzerland only 1
per cent of rapes result in a conviction. In the UK where under 10 per
cent of reported rapes result in a conviction and where surveys indicate
under one in 10 cases are reported the percentage must be roughly the
same. As this book shows it often seems as though the complainant rather
the defendant is on trial and it is their reputation which is still used
to determine their credibility. Questions continue to be asked about the
complainant's past sexual history and details of her lifestyle - her
lingerie, her make-up, even her menstrual flow. Since the first edition
of Carnal Knowledge was published in 1996, rape has rarely been out of
the news, and has received unprecedented attention. For the first time
there seems to be a real commitment to improving the way the criminal
justice system has treated women who are raped. Yet little if anything
has improved in the past five years. On the contrary, the proportion of
reported rapes that have resulted in a conviction has continued to
slide. Between 1996 and 1999 it fell from 10 per cent to a mere 7 per
cent (Only 634 cases out of 8,500 resulted in a conviction according to
Home Office statistics for 1999). The main problem is that the judiciary
are responsible for the implementation of reforms and all too often use
their influence to block their effect. In the last chapter of the first
edition I pointed to the need for three major reforms: for the
curtailing of sexual history evidence and the impact of the Court of
Appeal's interpretaion of the Human Rights Act, for changes in the rules
of evidence inroduced in the Edwards case heard in In this introduction
I shall summarise what developments have occurred since 1996 in each of
these areas. I shall also briefly discuss other issues regarding rape
which have arisen since then - the increasing use of date rape drugs,
improvements in the policing of rape.
Controversy over constricting sexual history evidence
A major reason for the low conviction rate is due to judges
continuing to allow the defence to cross examine complainants about
their sexual character and sexual history. Some questions posed are
subtle. For example, in one trial the complainant was asked about red
shoes she was wearing. The defence asked: 'You would admit these shoes
are not leather. They are at the cheaper end of the market'. If her
shoes were cheap, the implication was that she must be cheap too.
A major advance to the constriction of sexual history evidence
appeared with the introduction of section 41 of the Youth Justice and
Criminal Evidence Act, which came into force in December 2000, but
was then partially overruled by a Court of Appeal decision in June 2001.
The new Act's Section 41 repeals the Sexual Offences (Amendment) Act
1976 and greatly curtails questioning a complainant in a sex case about
her previous sexual history and behaviour. According to the new act, the
judge can only allow such questioning in consent cases when the woman's
behaviour took place at or about the time of the alleged offence, or to
refute evidence about sexual history that the prosecution has introduced
- such as, for example, that the complainant was a virgin.
The idea that sexual history evidence is not relevant and will be
disallowed lead to a storm of protest. Many barristers regard sexual
history evidence as relevant (see Temkin 2000). A woman barrister who
regularly prosecutes and defends in rape trials at the Old Bailey held
the view that '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'. Such views are not unusual (see Dyer 2000a).
The Influence of the Human Rights Act Even before the clause
was implemented the judiciary began to protest. Lord Bingham, Lord Chief
Justice, in November 1999 rejected calls for changes to the rape laws to
improve the low conviction rates and stated 'I would not want to see any
great weakening of what the prosecution has to establish' (Dyer 2000b).
The day after the new act came into force, in a case at the Old Bailey,
Judge Simon Goldstein discharged the jury and gave leave to appeal 'with
enthusiasm' on the grounds that the new protection afforded to women in
rape trials under the 1999 Youth Justice and Criminal Evidence Act
infringed the defendant's right to a fair trial. The defendant denied
raping a teacher who claimed he attacked her on a Thames towpath on June
14, 2000. He claimed they had been having a sexual relationship and that
she consented to sex in the bushes. Under the new act the defence were
not allowed to question her about their past relationship. The
defendant's lawyer claimed that the new act breached article 6 of the
European Convention of Human Rights, which gave him the right to a fair
trial. Judge Goldstein said the problem was likely to arise in many
cases being heard before crown courts and those involved - judges,
lawyers, accused men and alleged victims had to know where they stood.
He revealingly commented that 'the sexual activity of a prostitute or
someone as 'chaste as a nun' will never be known because it cannot be
explored in court by lawyers'. Such a comments shows how the
polarization of women into the chaste and the depraved, the virgin and
the whore, is still alive to-day.
The appeal was fast-tracked at the Court of Appeal where it was
upheld in May 2001. In their judgement the law lords ruled that if
someone claims to be a victim of rape or another sexual assault, their
previous sexual relationship with the defendant can be called in
evidence if the judge thinks that this relationship is so relevant to
the case that to exclude it would create the risk of an unfair trial.
This is completely contrary to the act which laid down that evidence of
a previous relationship could not generally be called in a trial.
Moreover, although the judges decided that the rape law was potentially
unfair to the defendant, they said it was still compatible with the
human rights act which enshrines the right to a fair trial. In other
words they ruled that the law should be read so as to make it compatible
with the convention. Lord Slynn ruled 'It seems to me that your
Lordships cannot say it is not possible to read section 41(3)9c)
together with Article 6 of the Convention rights in a way which will
result in a fair hearing. In my view section 41(3) 9c) is to be read as
permitting the admission of evidence or questioning which relates to a
relevant issue in the case and which the trial judge considers its
necessary to make the trial a fair one'. This is an extraordinary
decision. As Melanie Phillips (Sunday Times May 20, 2001) pointed out
for judges to rewrite what government have decided and parliament has
passed is profoundly undemocratic. She went on to comment 'It is also
underhand, since the judges are too cowardly to make transparent their
challenge to these democratically created laws'.
The ruling restores some of the discretion taken away from trial
judge by the rape shield law. In future, it will be for the judge to
decide if the evidence the man wants to put forward is relevant to the
issue of whether or not the woman consented to sex on the occasion in
question. If so, the evidence will be allowed. Lord Steyn ruled that :
'Due regard always being paid to important of seeking to protect the
complainant from indignity and from humiliating questions, 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 If this test is satisfied,
the evidence should not be excluded'. Or as Vera Baird pointed out '
We're back to the discretion of a lot of male judges. We will try to
draft an amendment to go into the next criminal justice bill' (quoted in
Dyer 2001).
The judges appear to have rewritten the law or produced an
interpretation which manged to reverse what it meant. So why did they
not declare it incompatible with the Human Rights Act? As Phillips
argued 'the answer is that the judges are playing politics. They are
bending over backwards not to issue declarations of incompatibility and
so put the government on the spot. It is Humpty Dumpty act which allows
them to make the law mean whatever they want it to mean'. As Lord Hope
said in a dissenting speech, the role of the judges is to interpret the
law not make it themselves. In his view the way his fellow judfges had
interpreted the rape law to be compatible with the human rights act was
simply wrong.
Yet again the judges appear to have been able to reassert their right
to use their discretion. Failure to limit the judges discretion led to
the failure of the Sexual Offences Amendment Act (1976). It looks as
though the Youth and Criminal Evidence Act (1999) will face similar
problems. Let us hope their discretion is limited to allowing evidence
relating to relationships between the defendant and the complainant and
is not used, as in the example below, to evidence of past sexual
history.
Events Leading to the Restriction of Sexual History Evidence
The publication of Carnal Knowledge was influential in bringing about
restriction on sexual history evidence. The book was widely reviewed in
the quality press (Guardian, The Times, Counsel of the Bar and the Times
Literary Supplement) and the media (both television and radio) and this
led to questions being asked in the House of Commons about the falling
conviction rate (see Hansard June 12 1996: 355-368). This resulted in
the setting up of a Home Office investigation by Jessica Harris, which
was published in 1999 which confirmed that the attrition rate in rape
cases was far too high (Harris 1999).
In June 1996 I had a meeting at the House of Lords with Lord Ashley
who had drafted the original Sexual Offences (Amendment) Act 1976. He
was very perturbed to hear that it had not been effective. The act aimed
to limit the cross examination of the complainant about her past sexual
history and sexual character, but it was left up to judges' discretion
to deem whether or not such evidence was relevant. Judges, however, as
my monitoring of trials showed, had used their discretion to allow such
questions to be asked, so the act had had little effect. Judges
frequently regarded such evidence as relevant even when it was
unconnected to the offence.
Court of Appeal judgements had also not supported the spirit of the
act. For example, in the Court of Appeal judgement in Viola in 1982 it
was ruled that the complainant's promiscuity was relevant to consent. In
another judgement in 1992 (Brown) the judge had to decide in each case
whether 'the complainant's attitude to sexual relations could be
material upon which in these days a jury could reasonably rely to
conclude that the complainant may indeed have consented to the sexual
intercourse on the material occasion'. In other words, if the woman had,
in the opinion of the judge, a certain attitude, it was deemed right to
cross-examine her about her sexual relationships (House of Commons
Standing Committee E 2000).
In 1996 I had several meetings with the Labour Party Policy Officer
for Home Affairs and informed him of developments in Australia. This led
to the Shadow Home Secretary, Jack Straw and Tessa Jowell, Shadow
Minister for Women, presenting three amendments to the Criminal
Procedure and Investigation Bill in 1996. I advised on the drafting
of these amendments (one which related to the law on 'similar fact' -
see below) and had lengthy conversations with Tessa Jowell who presented
the amendments to parliament. The amendments called for changes based on
the 'tried and tested formula' of the New South Wales Act which had led
to a far fairer system in Australia. This strictly limits the discretion
of judges in allowing sexual history evidence, the introduction of trial
judges' warnings to ignore delays in reporting sexual offences and the
strengthening of the 'similar fact' law whereby defendants could be
charged with more than one offence at a time (if they had been accused
by different women and there was a similarity in the attacks). In
Australia these changes resulted in a higher level of convictions and
more defendants pleading guilty.
The amendments failed but formed the basis of reforms introduced when
Labour came to power in 1997. Following the election of a Labour
government in May 1997, the Home Secretary, Jack Straw, set up a
consultative body to draw up recommendations for law reform. This led to
'Speaking Up for Justice', a report of the Interdepartmental Working
Group on the treatment of Vulnerable and Intimidated Witnesses in the
Criminal Justice System which was published in June 1998.
Evidence from transcripts of trials collected for the Dispatches
(1994) programme Getting away with Rape provided crucial evidence that
judges were allowing such evidence to be introduced. The standing
committee set up to examine amendments to the Youth Justice and
Criminal Evidence Bill 1998, was directed to evidence from Carnal
Knowledge by the Home Secretary, Jack Straw, and the Home Office
Minister, Paul Boateng in the committee readings of the Act. The Act
requires judges to state explicitly their reasons for allowing such
evidence. In cases where consent is the issue, evidence of previous
sexual behaviour is only allowed if the evidence or questions rebut
evidence led by the prosecution, or the behaviour to which they relate
is either alleged to have taken place at or about the same time as the
alleged offence; or is so similar to the complainant's alleged behaviour
at that time that it cannot reasonably be explained as a coincidence.
Paul Boateng, Minister of State at the Home Office said:
In Sue Lees' 'Carnal Knowledge' in 1996 she reported that, in
trials that she had seen, defence barristers made sweeping statements
about complainants apparently on no grounds at all. They suggested
that one complainant was 'looking for physical satisfaction'. In one
case a judge intervened to ask the defendant 'Did you regard this
young woman as respectable…You did not regard her as a tart?'
(House of Commons Standing Committee E November 9, 2000)
Subsection (4) will ensure that juries are not invited to pass
judgements on the complainant's general character in that way. Only
specific allegations of behaviour that can be shown to be relevant to an
issue at retrial will be admissible, and barristers and juries alike
will be forced to concentrate on the issue at trial. Later he added:
I shall give some examples from Sue Lees' research. Consent was the
issue at the trial of Mulherne, a serial rapist. The complainant was
asked about an abortion that she had had three years before the event
and when she had last had sex. Of what possible relevance could that
be to the issues at trial?
A complainant who had been raped by a taxi driver was asked about
her relationship with her boyfriend, including how often she had sex
with him and how long she had been going out with him. That was
irrelevant to the issues at trial, and will no longer be permitted
under clause 40.
Under the provision, the following case reported by Sue Lees would
not be allowed. At a trial at the Old Bailey in August 1993, the white
complainant was asked whether she 'often slept with ethnics' and what
colour the father of her baby was, for no reason other than the rapist
happened to be black. We must never again allow offensive and wholly
irrelevant questions of that nature in our courts.
A judge, quoted in Sue Lees' research, directed the jury that a
complainant was not a promiscuous person but a 'sober, sensitive and
religious young lady'. Such a comment, suggesting that if she were not
sober, sensitive or religious, she would just take her chances as to
how much belief she could inspire demonstrates the problem that we
need to tackle.
(House of Commons Standing Committee E November 20, 2000)
Carnal Knowledge was also referred to by Lord Ashley and Baroness
Kennedy in the debate in the Lords. Baroness Kennedy, for example, in
the committee stage said: 'We accept the evidence from Professor Sue
Lees that this kind of cross-examination is being allowed much too
regularly by our judges' (Hansard June 22, 1998). This attempt to
restrict the discretion of judges is unprecedented. Lord Carlyle when
interviewed on Radio 5 in December 10, 2000 condemned the change and
called on the public to 'trust the judges'. But are the judges
trustworthy or are they in part responsible for the dramatic drop in the
conviction rate for rape? Judges argue that sexual history evidence has
only been introduced when it is relevant but my monitoring of trials
indicates that this is not so.
In response to the falling conviction rate, in 1997 a Campaign to End
Rape was launched bringing together organisations such as Justice for
Women, the Rape Crisis Federation (Wales and England), Action Against
Child Sexual Abuse and a number of individuals. The aims of the campaign
were to increase the conviction rate, ensure better treatment and
representation of victims in court and change the law on consent. The
campaign starts from the belief that consent must be negotiated, never
presumed and points to Australia where, in the state of Victoria, it is
the man who carries the burden of proving consent and evidence relating
to the woman's sexual history is also outlawed
In January 2000 Dispatches approached me to undertake the consultancy
on a follow-up programme entitled Still Getting Away with Rape. This was
shown in March 2000. This time we monitored all the trials occurring
over a two-week period throughout the UK (30 trials in total) and
analysed the transcripts of the cross-examination and the summing up of
the judge in 15 trials to see why the conviction rate was so low. In two
thirds of the cases cross-examination of sexual history evidence was
allowed. The following case was typical.
Sexual History Evidence Allowed in 2000
One afternoon in February 2000, Janette (not her real name), a 19
year old, went to see at her boyfriend. With her was a 4-year-old little
girl she was looking after for a friend. When she arrived at her
boyfriend's flat, a man she had not met before was visiting. Her
boyfriend went out to get a video, and during his absence she said she
was raped by the man whom she had just met. She feared for her life and
was appalled that he could have done this in front of such a young
child.
According to the Sexual Offences (Amendment) Act 1976, in
force at the time, questions about the past sexual history of
complainants can only be asked if the judge deems such questions to be
relevant to the complainant's credibility. In this case, the judge ruled
that it was relevant. Janette was first cross-examined about her
relationship with both her boyfriend at the time. She was asked what
kind of relationship it was and replied that it was 'casual'. The
prosecution failed to ask her what she meant. The judge intervened and
did ask. She replied 'Well serious I mean like getting married and
everything like that. I mean I was just seeing like how it was going to
go between us, it could have developed serious, that's what I mean'. An
answer which surely would describe most relationships of young people
to-day. Since the judge had considered her sexual history to be
relevant, the defence was allowed to call her boyfriend and a past
boyfriend to give evidence. Additionally, the defence had gained access
to her medical records and much was made of the fact that she had once
had a VD test (although it had been negative).
The defence implied that she was sexually promiscuous and suggested
it was significant that she had described her relationship with her
boyfriend as 'casual'. The judge clearly considered this to be of
relevance and summarised the evidence in the following terms:
So what did you make of that 19 year old girl? Within the first few
sentences of her evidence describing her relationship with W (her
boyfriend) she said she had been going out with him for 3 or 4 weeks
but she said - you will remember her words - it was not serious, it
was just casual. Words which she used more than once when giving
evidence.
(Court transcript February 14, 2000)
The judge went on to summarise the defence case. A few months before
Janette had had a VD test, following having sexual relations with, as
the defence suggested, a few men. The judge, however, failed to say that
no infection was found and that she had only been tested because her
boyfriend had an infection. More damaging still, the judge did not point
out that the complainant had vehemently denied that she had had sex with
more than one boyfriend at a time, and that her definition of 'casual'
was not as implied by the defence. Instead he explained why in his view
evidence regarding her sexual history had been allowed:
You may well ask why you were allowed to hear that evidence. Why
was she cross-examined in that way? I emphasise this, it was not done
to disparage her, or to lower her as a person in your estimation, it
certainly was not done to embarrass her and it is certainly not done
as a general practice in cases of rape. It is done only and it is only
allowed with leave of the judge when it goes to an issue in the case.
The question you must ask yourself is this - and you may think it
is fair and right to address this question to yourselves: 'Does her
attitude to sexual relations provide material upon which you may
reasonably rely in determining whether she consented to intercourse
with this defendant or not?' Please note the words I use 'upon which
you may reasonably rely in determining whether she consented to
intercourse or not'. Remembering always that the defendant does not
have to prove that to you.
(Court transcript February 14, 2000)
The introduction of sexual history evidence is exactly what the judge
denies - it is to disparage her, to lower her as a person in the jury's
estimation and to cast doubt on her credibility. It is exactly the kind
of evidence, which the Sexual Offences (Amendment) Act 1976 aimed to
prevent. The judge could have said that many 19 year olds to-day have a
number of sexual relationships, but that the complainant had emphasised
that she was not promiscuous and would not have dreamt of having sex
with anyone, let alone a stranger, when she had a boyfriend. He might
even have suggested that the prosecution case was that it was most
unlikely that she would have done so at her boyfriend's house in the
afternoon when looking after a little girl.
The judge summarised why the defence argued she should make a false
complaint. 'It might be that they were almost caught in the act and she
did not 'want to appear cheap, or easy whatever words you might use'.
Having just painted her as cheap and easy, this is a breathtaking
assumption. The contradiction between on the one hand 'being loose' and
on the other hand 'being so ashamed as to be driven to make false
allegations of rape', appears to have been overlooked!
The judge then pointed out the lack of injuries sustained by the
complainant. He failed to mention that when cross-examined she explained
'I was dead scared and like, I was crying. I was saying 'Get off me' and
he wouldn't listen. He carried on as if he was deaf. He weren't
listening at all. I was crying and I was in pain as well. Like he hurt
me more than he was already hurting me. My hands were pinned back and I
couldn't move at all'.
The judge did not explain that most women who are raped (like most
men who are raped) do not sustain injuries but are in a state of panic
and often freeze. Many fear for their lives. Instead he summed up in the
following terms:
Is it possible at all that the defendant would have raped this
woman knowing that her boyfriend was about to return to the house, and
knowing nothing of her boyfriend's character, temper, whilst he is out
of the house? For all we knew he might have come back - bearing in
mind the physical sizes - might have beaten him all around the house…..We
know for a fact that the defendant remained on the premises. What if
anything does that tell you - the implication that he remained there
after the act?
What the jury should be told is that this is a quite typical strategy
often used by rapists. Rapists do not typically behave like burglars or
robbers. Rape can be seen as an offence which is similar to fraud, where
the rapist often insists to his victim that what has happened was normal
and that no one will believe her. In my research into cases of serial
rape, women describe their assailants as displaying behaviour following
the rape, which astounded them. A few apologised, others expressed
affection or tried to arrange to see them again. Generally they appeared
to attempt to 'normalise' the situation or behave as though nothing had
happened by asking victims to have a drink or something to eat, or by
offering to drop them home or offering them a present. Women who
sustained injuries, on the other hand, were the most likely to be
threatened not to tell. A few apologised which dumbfounded their
victims. It is difficult to know whether some rapists really see
themselves as lovers and are living in a fantasy world, but the majority
know exactly what they are doing and are adopting a subtle strategy to
avoid detection.
In this case the young woman had done nothing that could be deemed
provocative - she was not drunk or under the influence of drugs,
scantily dressed, out late at night, she was responsibly looking after a
4-year-old child, and no reason worth a minutes' consideration had been
put forward for why she should make a false complaint. So how much
difference will the new act make to a case like this? Her relationship
with her boyfriends would not have been allowed and the medical evidence
could not have been referred to.
Change in the Rules of Evidence
The first edition of Carnal Knowledge was based mainly on consultancy
work undertaken for a Channel 4 Dispatches documentary, Getting away
with Rape. During the monitoring of rape trials at three Crown courts
over a four-month period we identified three serial rapists who had been
acquitted. This showed all too blatantly that serial rapists were
getting away with rape. It indicated that something was seriously wrong
with the judicial system, which could no longer be ignored.
The Dispatches programme was unique, as we were able to contact
police forces and search newspaper records to find out about past
convictions and in some cases about past acquittals. One of the basic
tenets of British justice is that defendants are innocent until proved
guilty, so that there is no national database of acquittals. Until
recently there has not been a database for convictions. Whether or not
past convictions are revealed to the jury in rape trials is left to the
discretion of judges. What is curious is that whereas in other trials
where the reputation of the witness is attacked, this is said to 'lower
the shield' of the defendant whose past convictions can then be revealed
by the prosecution. This does not apply to rape trials where the past
history of the defendant is only allowed at the discretion of the judge.
This anomaly is not widely known.
The upshot is that serial rapists are able to take advantage of the
extra protection which judges consider should be given to defendants in
rape trials. This has allowed very dangerous men to get away with rape
over and over again. The men we identified had all had contact with
their victims before the attacks. They had clearly planned their attacks
with care bearing in mind the possibility that the woman might report
the rape and that they would need to present evidence that she had
consented. All had extensive experience of the way that courts operated.
All three could be described by what the media like to call 'date
rapists'.
The implication of the 'date rape' is that it is less serious than
attacks by strangers and involves the man 'misreading signals'. However,
in none of these cases was there the slightest evidence that the men
misinterpreted signals or that the women consented. The men appeared to
know exactly what they were doing.
The typical strategy used by these men was to engage young women in
conversation, either in the street, on public transport or most usually
in a social situation such as a disco, a night club, a pub or a party.
He would then isolate her or confine her in some way. A useful tactic
was to persuade her to get into a car and then drive away at high speed.
Once the woman was isolated, the rapist would then become violent and
threatening. One of the men had been reported by seven different women
for rape. Four cases were prosecuted and of these he was acquitted three
times. He committed another offence while on bail awaiting a trial of
the fourth case, and then disappeared. He has not been seen since.
Another of the men came to court yet again in the spring of the year
2000 when we were making an updated Dispatches programme Still Getting
Away with Rape. A nurse who accused him of raping her in the early 1990s
replied when she was accused of lying in the witness box: "Do you
think I'm going to put myself through this ordeal and waste all the time
of the police and courts if it didn't happen?" Yet he was
acquitted. He smiled and clapped when the not guilty verdict was
announced, and bowed to the jurors, saying: "Thank you very much.
Cheers."
The latest trial was his eighth on rape charges, but what was unusual
was that this time the jury knew something of his history. In most rape
trials the 12 men and women who have to decide the accused's fate are
kept in the dark, unaware whether the man before them has a long history
- in this case, 19 years - of forcing women to have sex with him. In
this his latest trial he claimed to have had sex with 2,000 women. But
how many of his conquests consented? After the trial started, two more
women came forward to say he had raped them too.
In the latest trial, four of the women who had accused him and had
their accusations dismissed by previous juries were allowed to testify
following a historic ruling of the House of Lords in June 1999. They
were joined by another woman whose story had led to one of his two
previous convictions. All recounted being raped by him in strikingly
similar circumstances. In each case, he first went up to the woman in a
public place. He adopted a low-key approach to gain her confidence,
making a date for another meeting. At the second meeting, he continued
to chat her up and then isolated her, in most cases by driving her to a
secluded spot - in two cases to the same churchyard. Then he changed
from Jekyll to Hyde. His mood, previously calm, became angry and he
became a domineering, terrifying bully, forcing his victims to give in
to his demands. He refused to use a condom and intercourse was
accompanied in each case by comments and instructions from him, telling
the girl what to do. Afterwards he reverted to friendliness, often
denying that anything untoward had occurred.
Like many serial rapists, this man has adopted more sophisticated
tactics and become more adept at avoiding conviction. In the first case
that came to court, in 1983, he held a knife to the victim's throat. The
knife was produced in court and this led to his conviction. He never
used a weapon again. In the latest case heard in September 2000, he
managed to persuade the woman to go to his south London flat. As he
would know, juries rarely convict where a woman is raped after accepting
an invitation to the man's home. This case would probably not even have
come to trial if the other women had not been allowed to give evidence.
The jury heard evidence from four women whose cases had resulted in
acquittals and as a result he was found guilty and sentenced to life
imprisonment.
That breakthrough followed a legal battle by the crown prosecution
service to get the evidence in front of the jury. Judges have a
discretion to allow juries to hear evidence that the accused has behaved
in a similar way in other cases - so called "similar fact"
evidence - if the details show a strikingly similar pattern of
behaviour. The judge has to decide whether the value of the evidence in
proving the charges is so strong that it outweighs the prejudice to the
accused. If so, and if admitting the evidence will not make the trial
unfair, it can be allowed in.
But there was a stumbling block. In a 1950 case the privy council had
ruled that a jury verdict was binding and conclusive in all subsequent
proceedings. For the past 50 years that had been interpreted to mean
that once an accused was acquitted, no evidence to show that he had
actually committed the offence could be brought forward at a later
trial. To do so, it was thought, would breach the "double
jeopardy" rule by which no one can be tried twice for the same
crime, a cornerstone of the British justice system.
The trial judge disallowed the evidence. The prosecution took the
matter to the appeal court, which dismissed it, ruling that a prior
acquittal not only precluded a second prosecution for the same offence
but also barred the crown from citing evidence in a later prosecution
that showed that the defendant was actually guilty of the charge of
which he had been acquitted. The court reached this decision "with
regret" and gave permission for an appeal to the Lords.
The law lords allowed the prosecution's appeal, overruling the 1950
judgement and setting a new precedent. The five judges said that
allowing the women to give their evidence would not breach the double
jeopardy rule because the man in the case under consideration was not
now at risk of conviction on the earlier rape charges, but only on the
charge for which he was standing trial. The evidence was relevant and
came within the ambit of the "similar fact" rule, and was not
inadmissible just because it tended to show that the defendant was in
fact guilty of offences of which he had earlier been acquitted.
It is a controversial change and not all lawyers agree with it. The
law lords' ruling was in line with a recent Law Commission report on
double jeopardy, but Andrew Trollope QC, who chaired the Criminal Bar
Association group that responded to the Law Commission paper, believes
the change breaches the principle that underlies the rule of double
jeopardy. "You may easily draw the conclusion that because a man's
been accused of rape eight times over, he must be guilty. That's a very
dangerous road to go down. You have to remember that in those instances,
or a number of those instances, the facts have been closely examined by
previous courts and that there has been a doubt in each case."
Bruce Houlder QC, vice-chairman of the Criminal Bar Association, argues
on the other hand that it "defies common sense" to exclude
such evidence.
The change in the law can be seen as an acknowledgement that multiple
rapists are going free and that something needs to be done about the
high acquittal rate. The acquittal of serial rapists is far more common
than often imagined. Far more men are acquitted of rape than convicted.
The conviction rate for reported rapes has dropped from 24% in 1985 to a
mere 7% today. This is in spite of advances in DNA analysis which enable
separate rapes to be linked. At the same time, the proportion of rapes
committed by strangers has dwindled to a mere 12% of reported cases,
according to the Home Office's most recent analysis, published in 1999.
Stranger rapists use the defence of identification rather than consent
and with advances in DNA analysis, identity can now usually be proved.
Serial rapists may well be learning different tactics once they
realise that they are much more likely to get off if they chat up their
victim beforehand and then argue that the woman consented. This could
explain, at least in part, the drop in the proportion of stranger rapes.
The serial rapist in the case discussed above did not misread signals.
He planned his rapes carefully and they fell into a common pattern. His
victims were not long-standing girlfriends but women he had met only a
short time before and apparently targeted.
We know that serial rapists are getting away with rape. A disc jockey
was convicted of four rapes but after his trail was accused by many more
women who had met him at the holiday resort where he preyed on victims.
A policeman found guilty of raping a housewife and former academic in
May 2001, had faced complaints by 20 other women over the years, ranging
from indecent exposure to rape. One woman was raped by him several times
and attempted suicide after ongoing abuse from him. A case had been
dropped in 1998 following an enquiry by the Dumfries and Galloway police
force for whom the officer worked.
Police Detection and Treatment of Rape
Whereas police treatment of rape complainants has undoubtedly
improved since police policy was to let a woman 'make her statement and
then drive a coach and horses through it' (BBC Police Series 1992), the
investigation of offences is still inadequate. Additionally, the
problems posed by the sexism endemic in police culture need to be
addressed. Research shows that certain features of organisations can
significantly increase gender stereotyping, sexual harassment and other
forms of sexism. These features include: women comprising less than 20
per cent of the organisation and the availability of sexually explicit
material, both of which are present in the police force.
Women officers are not immune to sexual harassment and several have
made allegations of rape against their colleagues. Most police forces
have now introduced equal opportunity policies and are beginning to
address such issues. However, the danger that officers may themselves be
involved in harassment of victims or may make use of victim reports as
pornography also needs to be addressed. This was said to have occurred
in Barwell's case - one officer even tried to visit a victim at her home
and have sex with her.
Greater monitoring and accountability is clearly called for. The
culture of male white organisations, such as the police and the
military, is characteristically sexist and racist. The reasons for this
are rarely addressed. Racism and sexism function both to create and
enhance solidarity in the organisation. If this solidarity is
questioned, when, for example, women enter the police, thereby
encroaching on the male domain, the level of sexism often increases.
Addressing sexism, like racism, is no easy task as it is embedded in
both the internal processes and the service delivery of the police. In
other words it is institutional. Any attempt to contest such attitudes
is likely to meet with a backlash aimed at preserving the status quo.
Those who hold sexist and racist attitudes, therefore, rather than being
deviants as the 'bad apple' theory implies, are the conformists. In the
same way that there is a link between the way black officers are treated
in the force and the way members of the black community are treated, so
too is the treatment of women police officers connected to the way
sexual assault is responded to.
If women police officers are referred to by their colleagues as
'whores, bitches and slags', as Kay Kellaway alleged in her successful
sex discrimination case against Thames Valley Police in 1997, a
sympathetic reception for rape complainants is hardly likely. Attempts
have been made to address discrimination within the force. In 1986 a
formal equal opportunities policy was produced by the Metropolitan
Police
Guidelines for police managers were distributed to all officers and
provided the basis for the Home Office Circular 87/1989 issued to all
police forces in England and Wales. By March 1992 all forces had
published equal opportunities policies and associated grievance
procedures. Despite these developments, there has been a failure to
change the composition of the force to reflect the community.
Women now still only represent 14 per cent of the force, concentrated
at the bottom of the hierarchy. This not only reflects recruitment
strategy, but the failure to create a positive working environment for
women. Her Majesty's Constabulary (HMIC 1992) found that policewomen
were suffering from persistent low level harassment unchecked by
supervisors. A second report (HMIC 1995) was no less critical finding
'scepticism, tokenism and indifference' to sexual harassment.
Paradoxically, the police have become among the most vociferous groups
in favour of reform of the judicial system, as they are increasingly
frustrated by the failure of the system to convict suspects.
In September 1997 they took the unprecedented step of calling for
change. At the Police Superintendents' Annual Conference in Bristol, the
motion 'Are rape victims on trial?' was unanimously supported; the
conference called for urgent reform of the criminal justice system. In
October 2000, they held a global conference in London on domestic
violence entitled 'Enough is Enough' with representatives attending from
police forces all over the world.
'Date Rape' Drugs
A frightening development in the past five years is the appearance of
cases where women have been raped when drugged, which are proving very
difficult to prosecute.
The victim who is drugged does not remember what happened immediately
afterwards and even if she does, the drug is not identifiable in the
blood after a very short period. The police have had little experience
with treating such cases and there is evidence that they lack the
expertise to deal with them. In August 1999, for example, Judge Pearson
threw out Britain's first case involving the 'date' rape drug Rohypnol,
after describing the investigation as 'grossly incompetent'. The
detective inspector had forbidden officers to interview staff at the
nightclub where the drug was allegedly administered and failed to secure
vital video taped footage from the club's security cameras.
This is an area that needs far more attention. Peter Sturman, a
Metropolitan police officer in June 2000 conducted the first Home Office
study into drug rape and set up a Drug Rape Trust. His report 'Drug
Assisted Sexual Assault' (Sturman 2000) is based on his investigation of
this frightening phenomenon. He interviewed 123 victims of drug-assisted
rape, finding that 70 per cent of victims knew their attacker, with 27
per cent citing them as a friend, 15 per cent as a fellow student and 15
per cent as a work colleague. Nearly half were drugged in pubs or clubs,
but 12 per cent were given rape drugs in their own home and 10 per cent
on university campus.
The main drugs used - sedatives, which can induce amnesia - were
administered via alcohol in over half the cases and slipped into a cup
of tea, coffee or hot chocolate in 11 per cent of cases. One in five
could not remember the attack, and around 70 per cent felt physically
unable to resist due to the effects of the drugs. Many of the rapists
took photographs or videos of their victims during the attack to use for
pornographic purposes, to display on the internet, or as a trophy. Many
of the rapists acted in pairs. Sturman made 24 recommendations including
the setting up of 24-hour rape treatment centres at hospitals (Hall
2000). Very few cases of this sort have led to criminal convictions.
Abolition of defendant's right to cross-examine witnesses
A good example of how change is possible although protracted is the
process which led up to the abolition of the right of defendants to
cross-examine witnesses. This appeared to be a relatively minor change,
but it took a good five years to be put into effect. Since 1995 the
press had given widespread publicity to several cases where defendants
had sacked their counsels and undertaken the cross-examination of their
victims themselves.
In one of these, Julia Mason gave up her anonymity to protest at the
way she had been cross-examined by her assailant, Ralston Edwards, for
six days. She fled from the courtroom at one stage, complaining that she
felt sick, after being told to give a precise description of the sexual
humiliation she had endured. Edwards wore the same faded jumper and
jeans as when he had repeatedly raped her (The Times August 23, 1996).
He already had a previous conviction for rape and had been acquitted on
another rape charge. He also had a long history of violent offences
against women.
Shortly afterwards in November 1996, Michael Howard, then
Conservative Home Secretary, announced that he intended to abolish the
defendant's right to undertake his own defence in rape cases. A year
later, following the election of a Labour Government, still no change
had been made in spite of three further cases where defendants had taken
over their own defence. In the first case a 'very dangerous rapist' who
had attacked two women at knifepoint, and who had appeared in court on
rape charges on four previous occasions, repeatedly forced his victims
to relieve their torment and frequently accused them of lying on oath.
The following year Floyd Bailey left his victim in tears after making
her describe his genitals in graphic details. She later described her
ordeal as 'being violated a second time' (Press Association Newsfile
January 16, 1998). After another case where the defendant, Milton Brown,
who had been acquitted on four previous occasions, was allowed to
cross-examine his victims for five days in the witness box, Jack Straw,
the new Labour Home Secretary, promised a 'swift change in the law' to
take forward the previous government's proposal (Guardian January 13,
1998: 7). Straw declared:
Women who have been raped should not be victims twice over. I set
up an urgent review to identify ways to improve the treatment of
vulnerable witnesses at every stage of the criminal justice process.
He said that he planned to put 'the interests of victims, not
criminals, first'.
Similar Fact Evidence
Another significant change involves the extension of 'similar fact'
evidence. During the last decade or so much more sophisticated DNA
analysis has allowed rapes of different women by a rapist to be linked.
Zsuzsanna Adler (1987) who analysed 80 trials at the Old Bailey found
that men accused of raping more than one woman almost invariably pleaded
guilty. Over a third of those who admitted the offence had raped more
than one woman, usually on different occasions (Adler: 1987 pp 45).the
most likely explanation is that the sheer weight of evidence in cases
involving several women considerably increased the likelihood of
conviction.
Where a man is charged with raping three or four women unknown to one
another on separate occasions, the chances of discrediting all of them
at the trial are fairly remote and it becomes much more difficult for
him to produce a credible account alleging consent on all occasions.
This should have led to an increase in the conviction rate so it is
puzzling to discover that it has instead declined dramatically. It is
usually argued that this is due to the fall in the proportion of rapes
by strangers (down to 8 per cent of reported rapes) and the increase in
rapes by acquaintances. What is not recognised is that rapists who
attack strangers may well be changing their tactics so as to avoid
conviction.
These men realise that by chatting up their victims first they can
then use the 'consent ' defence - i.e. that the woman consented - rather
than the defence of identification, which with DNA, is no longer a
viable defence. It is to overcome the problem of serial rapists being
acquitted that the 'similar fact' law is so crucial. Judges have
discretion to allow juries to hear evidence that the accused has behaved
in a similar way if the details of the offence show a strikingly similar
pattern of behaviour. In other words cases involving separate
complainants can be heard together if there is a similarity in the
tactics used by the defendant. The judge has to decide whether the value
of such evidence is so strong as to outweigh the prejudice to the
accused. If so, it can be allowed. The application of such evidence has
become less stringent than in 1993 when we identified three cases where
women had independently reported rape, but the judge had not allowed the
cases to be heard together.
It appears that both Carnal Knowledge and the Dispatches
programme Getting Away with Rape and drew attention to two
important myths that needed to be dispelled. Firstly, serial rapists
were not necessarily 'stranger' rapists. Indeed most serial rapists rape
both strangers and women they have conversed with. Secondly, what the
media insist on depicting as 'date' rapists are often men who are
serious serial rapists who had progressed from raping 'strangers' to
raping women they have picked up with the intention of raping them.
Mistaken Belief in Consent Defence
One hurdle is the law on 'mistaken belief' in consent, another
defence for rape. According to Section 1 (1) of the Sexual Offences Act
1956 a defendant can only be guilty of rape if he knows that the other
person was not consenting to sexual intercourse with him or else he was
reckless as to whether that person was consenting or not. The term
'reckless' has been interpreted in cases to mean that he could not care
less whether the person was consenting or not. More controversial is the
issue of whether a defendant who mistakenly believes that the other
person is consenting when he has no reasonable grounds for this belief
should be criminally liable.
The law answers this in the negative following Morgan v DPP . The
Morgan ruling of 1976 involved a husband who took three men back to his
house where all four raped his wife. They alleged that he told them his
wife was 'kinky' and likely to struggle to get 'turned on'. He was
charged with aiding and abetting since he could not, at that time, be
charged with raping his wife. All the men appealed on the grounds that
they believed the women consented. The House of Lords upheld the
convictions, but ruled that a man was not guilty if he honestly believed
a woman consented to sex; and his view did not have to be reasonable.
This explicitly denied a woman's 'no' if a man read it as consent.
Even active resistance could be dismissed as token. In Australia, New
Zealand and America this law has been rejected and requires the belief
in consent to be reasonable but in the UK it has not been revoked and
could be used as a way of permitting sexual history evidence to be
introduced. There is a strong argument that the law should not allow
mistaken belief to a person who has failed to make modest steps to
ascertain whether consent is present. There is a significant danger, as
Lacey (2001) suggests that these restrictions on sexual history evidence
will simply lead to strategic adjustments in defence tactics which will
relate sexual history more closely to the question of belief in consent.
Setting the Boundaries - Sexual Offences Review
The proposals in this review represent a first step to creating a law
that will take sexual autonomy - the right to choose freely whether and
when to be sexually intimate with another person - seriously. Unlike
laws that provide for comprehensive protection for property rights,
labour and other important interests, laws on sexual autonomy have up
until now failed. The steering group's terms of reference were to
'provide coherent and clear sex offences which protect individuals,
especially the more vulnerable, form abuse and exploitation; enable
abusers to be appropriately punished; and be fair and non-discriminatory
in accordance with the European Court of Human Rights and the Human
rights Act'.
The committee was set up in response to the growing concern about the
fall in the conviction rate. It is often argued in the press that this
is due to more 'date' rapes, where women cry rape when they regret
having sex the night before. Yet there is no evidence for this
hypothesis. It is also clearly not feasible that 94 per cent of women
who report rape are making false allegations, especially since we know
that only a fraction of rapes are reported. So what are the reasons for
the decline? Firstly, it appears that the increase in the sophistication
of DNA analysis has had contradictory effects. On the one hand it has
become easier to link rapes by the same man over a period of time.
On the other hand rapists have learned more sophisticated tactics and
are not so likely to rape strangers but instead, as illustrated by the
three serial rapists that we identified in 1993, are more likely to chat
up their victims first, isolate them and then argue that they consented.
Secondly it appears that a number of Appeal Court decisions have
undermined the effectiveness of the Sexual Offences (Amendment) Act 1976
by quashing convictions on the grounds that sexual history evidence was
disallowed by the judges. This has led even the more liberal judges to
allow such evidence.
Thirdly, more marital rape cases are reaching court and are very
difficult to prove when defence barristers fish around and present all
kinds of very doubtful evidence about the reputation of the alleged
victim who has usually suffered years of harassment and violence. Judges
still regard marital rape as far less serious than rape by others
although women who have left violent husbands are at great risk of both
rape and homicide. The sexual offences review steering group, which
recently published its recommendations entitled 'Setting the Boundaries'
(Home Office 2000) attempts to provide a comprehensive reform of the law
on sex offences, to enable abusers to be appropriately punished.
In chapter 2 the review proposes a streamlining and expansion of the
existing offences of rape and indecent assault. The steering committee
proposals widen the definition of rape to include penetration of the
mouth by the penis. A further offence of sexual assault by penetration
should be enacted to cover all other forms of sexual penetration of the
anus and genitalia, and should also carry a maximum life sentence. A
lesser offence of sexual assault, defined as non-consensual touching
which a reasonable bystander would recognise as sexual, should be
enacted to replace the existing offence of indecent assault, attracting
a 10 year maximum sentence.
This group of offences should be reinforced by enactment of new
offences of assault to commit a serious sex offence and of abduction
with intent to commit a serious sex offence, each with a maximum penalty
of 7 years, while the existing offence of burglary and intent to rape
should be replaced with an offence to trespass to commit a serious sex
offence. The committee soundly rejected the call to make 'date rape' a
separate offence. Instead they have called for a radical reform of the
system.
The most significant change proposed is to define for the first time
what is meant by consent. The steering group recognised the difficulty
that has arisen in relation to the interpretation of consent and
proposed to overcome these by recommending that consent be defined as
'free agreement'. Under these proposals a defendant would need to show
that a complainant's consent had been 'freely agreed'. This would at
least put some pressure on the defendant to explain what led him to
consider that the woman freely agreed, without altering the burden of
proof.
They also recommended that there should be a non-exhaustive list of
circumstances where consent is not present. Lacey (2001) suggest this is
somewhat in line with the Theft Act's treatment of dishonesty,
illustrating circumstances in which consent in this sense is not
present. This might include model judges directions; for example, 'In
deciding whether the complainant did freely agree to sexual intercourse…
you should not assume that the complainant did freely agree just because
they did not say of do anything.. or just because they did not protest
or physically resist. These offences would require proof of intent or
recklessness, which would be defined subjectively but which would
include an attitude of indifference to consent.
These include:
- Where a person submits or is unable to resist because of force, or
fear of force
- Where a person submits or is unable to resist because of threats
or fear of serious harm or serious detriment of any type to
themselves or another person
- Where a person was asleep, unconscious, or too affected by alcohol
or drugs to give free agreement
- Where a person did not understand the nature of the act, whether
because they lacked the capacity to understand, or were deceived as
to the purpose of the act ·
- Where a person was mistaken or deceived as to the identity of the
person or the nature of the act.
- Where agreement is expressed by a third party
( Home Office 2000:19)
However, the committee rejected proposals to use the benchmark of
what the reasonable man would consider to be free agreement. Since a
defendant can surely argue that he 'honestly believed' free agreement
was given, the change does not advance us much further than the Morgan
ruling. Great emphasis is placed at present on the failure of victims to
physically resist or scream and juries are rarely warned that the
response of 'freezing' is not uncommon where victims are often terrified
for their lives and, therefore, do not show resistance. Silence,
ambiguous behaviour and the absence of clearly expressed unwillingness
could now be treated as evidence that affirmative agreement was absent.
The significance of equivocal behaviour could be reversed, because it
would reinforce prosecution claims that consent was absent.
Will this change lead to more convictions? It might help, but
defendants will, of course, argue that the complainant did freely agree,
and that force or confinement was absent. Rape is rarely corroborated
since it usually occurs in private. Other imbalances in the trial
procedure also need to be addressed. Juries have to decide who is
speaking the truth, so the criteria on which they are instructed to
judge credibility is crucial. At present judges often imply in their
summing up that the woman's credibility, unlike the defendant's, rests
on evidence regarding her past sexual history and sexual character.
Nicola Lacey (2001) outlines other limitations of the proposals. The
exclusion from its official remit of rules of evidence and of the norms
which shape the policing, prosecution and trial processes. She gives the
example of Jennifer Temkin's research on the attitudes of lawyers
prosecuting and defending rape cases. :
In a system in which a prosecuting lawyer can unabashedly claim that
'I think it's just common sense that if a woman looks like a scrubber
she's going to get less sympathy from a jury than someone who looks
respectable' and moreover is probably justified in so claiming - and in
which a defence lawyer can assert that 'If you've got a sort of tarty
woman then you're 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…'
one has to ask how much can be achieved by even radical changes to the
adjustment of the definition of rape in substantive criminal law' (CLR
2001:12)
Lacey suggests that other strategies are needed to change the
prevailing sexual culture such as professional education designed to
shift cultural attitudes, codes of practice specifying the nature of an
advocate's professional responsibility not merely to her or his client
but also to the court in such cases; and guidelines for judges
specifying their positive responsibility to ensure that the trial - and
in particular cross-examination - is conducted in a way which shows
adequate respect to victims. She argues that a troubling question is
whether in the prevailing sexual culture, the unmodified adversarial
trial process can deliver justice in sexual cases. She concludes that
the establishment of a comprehensive review of sexual offences which
excluded evidence and procedure was fundamentally misconceived. Overall,
Britain lags far behind other common law countries where far more
sweeping, wide-ranging reforms have been introduced. Effective reform of
the system will require resources, in training and retraining, in the
provision of adequate support services and in ensuring that the
perpetrators of violence are brought to justice and that women are
protected from repeat victimisation.
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