The
reversal of the power balance in rape trials
The
normal relation in the criminal justice system is one in which the
prosecution is more powerful than the defence because it has a whole
bureaucracy of police and other experts at its disposal to gather
evidence, find and interview witnesses etc. But in rape cases, where
there is no much focus on the victims activities, this seems
to be reversed. This is reflected in a low and declining rate of
convictions for rape despite a rising number of reports
The
number of reported rates (in England and Wales - Scotland and Northern
Ireland are separed jurisdictions) and the percentage which actually
resulted in convictions has changed dramatically in recnet years:
in 1995 there were
5,136 reported rapes of which 10 percent resulted in convictions
in the courts
in 2004-5 there were
14,002 reported rapes of which 5.29 percent resulted in convictions in
the courts.
Of
course, long before cases reach the courts there is the problem known
as 'attrition' in which rape cases are dropped by police or by
prosecutors before even coming to a prosecution in the courts. Recent
research has highlighted the continued importance of the way police
classify rape allegations as 'no crime' or CPS prosecutors decide to
drop cases on the grounds of lack of reasonable chance of conviction.
The
key features of rape as an offence in the courts
definition
of rape
The key
issue in a rape trial is not whether sexual intercourse took place
between defendant and victim but whether the defendant had reasonable
grounds for believing that consent had been granted by the victim.
Contrast this with other crimes. Take burglary: if you discover me in
your home at 4 am armed with a crowbar and with your valuables in my
bag, no defence lawyer in a million years will suggest a defence that I
had reasonable grounds for believing that you consented to theft. Take
street robbery: if I rob you of your wallet in a snatch theft (mugging)
while you are coming out of a nightclub in the early hours of the
morning, my defence lawyer is not going to stand up in court and argue
that you provoked me because of the expensive and stylish clothes you
were wearing and that, irrespective of your protests as I removed your
wallet and credit cards, you were really 'asking for it'.
In
these cases the issue of consent is entirely absent. In rape cases, by
contrast, the whole issue is consent. If the defendant sincerely
believed (even if that belief was mistaken) that the victim consented
then the law still says it is not rape.
assumptions
about female sexuality
The
arguments in court about consent then become the vehicle for a massive
display of male prejudices and assumptions about female behaviour.
Judges have been known to remind the jury in their summing up (read the
items by Sue Lees in the bibliography) that when a woman says 'no' she
often means 'yes'. Once the issue centres on consent then the aim of
the defence will be to portray the victim in such a light that the
defendant is justified in assuming that consent was granted. There is a
natural pressure to drag the victim's sexual history into court. For
example: "if she's the sort of woman who has slept with a number of men
in the past why was I not justified in my assumption that she wanted to
sleep with me?" Thus the 1976 Sexual Offences Act precluded questions
on sexual history unless the judge allows it. But as researchers such
as Sue Lees showed, it is allowed time and again. The reason is that
there is trememdous pressure (from the defence) to be allowed to show
that the defendant had grounds for assuming consent.
By contrast there is rarely an attempt to discredit
the defendant e.g. by asking him what his views on women are. All the
prejudices and assumptions of patriarchial culture are mobilised to
show the defendant reasonably assumed consent and that the woman was
indicating consent by her actions (or lack of them) just by the way she
was dressed and the type of (e.g.) bar she was drinking in. Often of
course women do not put up a fight, not because they consent to the man
forcing himself on them but because they are afraid that resistance
will lead to violence and even death.
Sue Lees characterised rape trials as pornography.
The womans body is publically debated and put on trial (rather than
that of the defendant) Men are not seen as responsible at all for their
desires. No-one asks them if they were oversexed. Doctors may be
brought on to testify that women desire sex when drunk etc. but rarely
that men are more sexually aggressive when drunk.
compounded
by acquaintance and intimate rape
Given
that the key issue is consent, where the offender and victim are known
to each other then the assumption that consent was reasonably believed
to exist can be made to appear even more plausible. If, for example,
previous sexual relations existed between defendant and victim then it
is easier for the defendant to argue that he reasonably assumed
consent. Of course, in reality the case may be one of a relationship
that has broken up and the man is still attempting to exert control.
One explanation for the fall in convictions is the increasing
proportion of acquaintance and intimate rapes (the latter would include
marital rape which became offence in 1991)
Currently,
(2007) it is estimated that in 80% of rape cases the victim and
offender are known to each other. Sue Lees and Jeanne Gregory (1999)
argued that the
effective decriminalisation of rape resulted from the timid policies of
police and Crown Prosecution Service (CPS) and that increase in the
proportion of rapes classified as acquaintance or 'intimate' rape has
been allowed to result in a reduction in convictions. The CPS often
decided to drop cases on the basis of lack of a reasonable chance of
securing a conviction. Lees and Gregory argued that this was in effect
a capitualtion to bias against the victim that characterises the
trials. Instead the CPS should be taking steps to get more reliable
evidence against the defendant. They also argued that serial rapists
(ie. repeat rapists) are planning rapes so as to make them as
acquaintance. But in fact a high percentage of these 'date rape'
situations are ones where the attacker has known the victim for 24
hours or less and thus hardly should count as acquaintance. But these
types of rapes have a very high acquittal rate. The defendant
is more likely to be given the benefit of the doubt.
The
introduction of DNA evidence in the courts has removed the possibility
for the defendant to deny that sex took place so, increasingly, the
defendant maintains that consent was given. Given the nature of rape
cases and the lack of other corroborating evidence it is thus harder to
avoid giving the benefit of the doubt to the defendant. Remember that
criminal convictions require a high standard of proof 'beyond
reasonable doubt'.
the
adversarial trial
The
adversarial trial system which characterises the UK Crown Courts and
other Anglo-Saxon jurisdictions (including the US) can be characterised
as a battle between defence and prosecution in which latter has to
prove its case beyond reasonable doubt in front of a jury. The key
feature of this is the 'no holds barred' cross-examination of all the
evidence presented by the other side. The aim is to 'discredit' the
others case and this can include discreting the character and
reliability of witnesses (this may of course include the victim). The
adversarial trial system contrasts with the 'inquisitorial' system of
most Continental European jurisdictions in which the trial judge does
most of the questioning.
trial
as battle
This
provides the context in which the harrowing cross examination already
noted takes place and is regarded as largely legitimate. All in all, in
many rape trials it is the victim who is on trial in court rather than
the defendant. The anticipation of such an experience is a reason why
many rape victims do not feel able to go through with reliving their
experience again. The trial may be up to a year after the offence and
the victim has meanwhile been trying her best to deal with the injury
by putting it behind her. To have to go through it all again is a
gruelling experience. The study of rape victims by Kelly et al. (which
found that only 12% of initial reported rapes actually got to trial)
emphasised how victims are frequently terrified of court appearance and
being 'torn apart' at a trial
[They
are] absolutely terrified of going to court, and what they always say
is, “His defence is going to tear me apart, how am I going to
deal with that?” Terrified. Terrified of the brief, terrified
of the culture of gowns and wigs and the judge, terrified of being able
to see the offender, but most of all what they seem terrified of is
bringing up all their past history and him getting off. (Rape
Crisis Centre Councillor, Kelly et al p 74)
This is compounted by the attitudes of prosecuting
counsel (Barristers) themselves. This is revealed in Jennifer Temkin's
study. She found that counsel often felt let down by the victim:
maligning her appearance, clothing and sexual character as a reason why
the prosecution might fail.
minimal
contact
a
further disadvantage is the often minimal contact between victim and
prosecuting counsel before the trial. The defendant will have had long
time to prepare the case in close collaboration with his lawyers.
corroboration
ruling
At the
conclusion of the trial, after the evidence and cross-examination has
been completed, the Judge sums up the evidence for the jury before they
go off to consider their verdict. The summing up is the moment of the
Judge's maximum influence on the trial in the adversarial system.
According to Lees research Judges have often warned the jury how 'easy'
it is to allege rape or make false allegations. In one case reported by
Sue Lees a Judge re0eated the view that women may say no but do not
mean it. The implication is that women do not share same rationality as
men and so their evidence in general is worthless. So the defendant is
justified in assuming they wanted sex when they didn't. This special
'corroboration ruling' as it is known has now been abolished
the attitudes of jurors
The
attitudes of jurors are a further element of considerable importance.
Some recent research underlines the fact that jurors tend to be
hesitant and very much reflect public attitudes stereotypes of the rape
victim. While juries have little problem in convicting defendants
in 'stranger rapes' in the increasing number of cases where the
defendant and victim are known to each other, juries tend to give
the defendant the benefit of the doubt. (This is mentioned further
below)
what
changes have taken place in recent years which might remedy some of
these problems?
-
the
corroboration warning was abolished in Criminal Justice and Public
Order Act 1994
-
the
CPS now spend more time preparing the case for
court. Recently the CPS has been empowered to interview witnesses
(including the victim) pre-trial. The CPS has also started to employ
prosecutors who specialise in the problems surrounding rape. Currently,
(2007) there are 600 special rape prosecutors across England and Wales
-
The Youth Justice and Criminal Evidence Act 1999
requires judges to state explicitly their reasons for allowing sexual
history to be raised in court and also allows in some cases the victim
to given evidence from behind a screen.
-
'similar fact evidence'.
Normally the court would
not know the previous convictions of the defendent, or previous cases
in which the defendant has been involved lest this influence the
decision about guilt or innocence. This could only be brought in at
sentencing stage. But recent ruling regarding what is known as 'similar
fact' enable the jury to be shown evidence of previous cases if they
were exactly the same. That is, if the individual has been charged with
exactly the same offence but been acquitted. Thus a number of well
known serial rapists were acquitted on several occasions of the same
offence. The judge has now the discretion to allow the jury to see the
evidence from these previous trials
-
Sexual Offences
Act 2003 widens the concept of rape
to include anal and oral penetration and tightens up the notion of
consent with a new concept of 'reasonable consent'. Hitherto it was
only necessary to demonstrate that consent was believed. This, it is
argued, will force the defendant to show, at least to some extent, what
steps he took to elicit consent to sexual intercourse. It does not go
as far as the reversal of the burden of proof in which it would be
entirely up to the defendant to demonstrate what steps he took to
obtain the consent of the victim. In some recent research on how far
the Act has affected conviction rates, Vanessa
Munro
and Emily Finch of
Kings College, University of London, found that juries remained
hesitant to convict where alcohol was concerned They found that jurors
often took the view that it was 'reasonable' for a man to assume that
silence represented sexual consent, even if the silence was due to the
fact that the woman was totally intoxicated.
Because
it is unlawful to conduct research with real juries, the researchers
used trial and jury room simulations. Their other main findings were:
In
situations where the woman had become involuntary drunk, many jurors
continued to hold her partially responsible for what took place -
either because she accepted drinks from the defendant, failed to stand
her ground against pressure to drink more or did not take adequate care
to ensure that her drinks were not 'spiked' (by either extra alcohol or
drugs) .
Even when a woman had unknowingly drunk spiked drinks,
juries were reluctant to convict defendants of rape unless they were
convinced that the drink had been spiked with the specific intention of
sexual assault, as opposed to 'loosening up' a reluctant partner.
It
also emerged that jurors were less inclined to equate 'taking
advantage' of a drunken women with rape in situations in which the
woman's normal behaviour was to drink heavily in the company of men.
By
contrast, in cases where the date rape drug - Rohypnol - had been used,
jurors were more inclined to hold the defendant responsible for rape,
even though the effect of the drug on the woman was the same as if she
were very drunk.
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