notes on rape trials

The failure of the criminal justice system to deal adequately with rape as a criminal offence is usually illustrated by the decline in rape convictions in the courts in recent years. The figures usually cited are the following which are for the percentages of rapes in England and Wales convicted in the courts in recent years. The figures show a steady decline apart from a small rise in recent years and they are usually contrasted with the conviction rates for homicide (75%) and assault (25%)

1977	1995	1999	2002	2005	2009
33.3%	10%	7.7%	5.6%	5.3%	6.5%

However, the presentation of the figures in this way is not without controversy. There is an important difference between convictions in the courts as a percentage of incidents reported to the police (known as the attrition rate) and as a percentage of those cases which are prosecuted in the courts (the conviction rate). The figures above for rape convictions are, in fact, attrition rates. Thus in 2009, 6.5 percent of rapes reported to the police were successfully convicted in the courts. But the figures for homicide and assault, with which they are frequently unfavourably contrasted are in fact the percentages of those cases brought to court for prosecution. So the criticism is that like must be contrasted with like. The following table illustrates the issue further. The figures are for 2009

	attrition	conviction
rape	6.5%	47%
violence against the person	4%	71%
burglary	4%	85%

As regards successful conviction of those cases brought to court, rape is still much lower than violence against the person or burglary so the problem remains even in these revised statistics. But when attrition rates are considered it appears that rape does slightly better than violence  against the person and burglary

Nevertheless there is an important argument in favour of regarding the attrition rate is the most important statistic for illustrating how rape is dealt with by the criminal justice system. Although rape might do very slightly better statistically than violence against the person and burglary, there are severe pressures on the victim at various stages to withdraw from the process and so prevent the case coming to court. Thus it is the attrition rate, the small percentage of cases originally reported to the police which get successfully prosecuted in the courts, which shows the real extent of the problem

Research by Liz Kelly and others identifies the several pressures on victims to withdraw. These may concern: fear of reprisals from the offender, lack of confidence in the police and the CPS to take the complaint seriously, lack of support for the victim by the police and CPS in the run-up to the trial process, decisions by the CPS to abandon prosecution of the basis of lack of a reasonable chance of conviction and, most important for our discussion here, fear by the victim of the ordeal of the trial process. (see the quote from Kelly et al. below)

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.

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.

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)

In 2007 it was 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 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.

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.

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.

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 repeated 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 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)

• 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. This may well explain the very slight rise in rape convictions in recent years but it is very much a drop in the ocean.
  

• 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.