A System Which Causes Undue Harm to Victims of Rape

If Blackstone's Formulation is based on the principle that the state should not cause undue or mistaken harm then we need to seriously consider the harm to victims of rape and sexual assault who are subjected to an horrendous ordeal and then tragically failed by a system which allows them to be discredited and humiliated in the name of justice and all too often their courage in coming forward turns out to be in vain.

English jurist William Blackstone in his seminal 1760s work, Commentaries on the Laws of England, remarked that "All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer." Blackstone's formulation, which is central to the UK criminal justice system, is based on the principle that the state should not cause undue or mistaken harm. The low rate of rape convictions, which has declined to 60% from a high of 63% in 2011-12, suggests that Blackstone's Formulation is applied particularly zealously to rape and sexual assault trials in the UK.

Both Alison Saunders, Director of Public Prosecutions, and DAC Martin Hewitt, National Police Lead for Adult Sex Offences, are right to emphasise the need to challenge the pervasive myths about rape that exist within the police, the Crown Prosecution Service (CPS), the judiciary and, as juries are made up of supposedly ordinary people, the wider public.

The National Ugly Mugs Scheme (NUM) supports sex workers (who face many barriers to engaging with the criminal justice system due to the stigma associated with their work) when they are victims of sexual assault to engage with the elements of the criminal justice system. From my own experience of running NUM for two years, the CPS and police forces in many areas have professionalised their responses to rape and sexual assault and most officers are aware that stereotypes are dangerous and must be challenged.

In fact, many officers dealing regularly with sexual offences are regularly left dumbfounded by the verdict in court. One seasoned officer who had worked on a high profile rape case recently told me that the final verdict had confirmed to him that "there is no justice in our system for rape victims. Even if they are believed they are subjected to such an ordeal in court. Facts and evidence are rarely a significant factor in the jury reaching a verdict."

The problem is that not only are juries uninformed when it comes to rape and sexual assault but the system is such that confusing the jury and exploiting their apparent lack of understanding becomes the central focus of the defence's strategy. While the prosecution can attempt to present the evidence and educate the jury about the complexities of rape, the defence will warn them about the consequences of convicting an innocent and the judge will ultimately direct them that they must be certain that the offender is guilty to convict them. It is also left for the judge, in their summing up, as the only unbiased party, to urge the jury to cast aside stereotypes and focus on the evidence.

I observed much of the proceedings in a recent high profile rape case where the defence, one of Britain's leading QCs, had deliberately attempted to propagate myths and stereotypes to sow seeds of doubt amongst the jury. Merely doing his job some would argue. One of many examples was the nonsense that rape victims all react with anger and fight back and, if they don't, then they're either lying or exaggerating. To an ordinary juror who had never experienced rape this may seem reasonable.

In fact, Louise Ellison and Vanessa Munro in their study 'Real Rape' Stereotypes and the Relevance of a Previous Relationship in (Mock) Jury Deliberations found that jurors:

"exhibited a strong expectation that a genuine victim of rape would engage in vigorous physical resistance against her attacker, and that, as a result, there would be corroborative evidence of injury. For a majority of jurors, the idea that fear or shock may inhibit physical resistance by a rape victim was only plausible in the context of a surprise attack by an unknown assailant."

Of course, the reality is that people's reaction to rape and sexual assault vary considerably and, contrary to popular stereotype, the majority, around 80%, of offenders in rape cases are, in fact, known to the victim. I assume that, given the aforementioned defence QC's status and reputation, he was peddling myths that he knew to be false but for him it was clear that he'd been paid (handsomely) to do a job and he would employ whatever tactics necessary to discredit the victims' accounts at whatever cost.

In this case, when it came to the summing-up, the judge spent just a few moments urging the jury not to believe stereotypes. I expected a thorough description, back by expert evidence, of the nature of sex offences and the range of responses that are common amongst victims. Despite the defence case being based almost exclusive on what seemed to me to be fanciful theories discrediting the victims, none of which were evidenced, enough doubt was fostered amongst the jury to result in a unanimous 'not guilty' verdict.

I was so shocked by this that I spoke to friends and colleagues who are legal experts in sexual assault cases and the consensus was that generally the system, insofar as it works for rape trials, is not held in particularly high esteem by those working within it. I was told countless times that facts and evidence make way for smoke and mirrors and adversarial theatre which lead to jury verdicts being unpredictable at best. The likability of an alleged perpetrator is often a deciding factor in the outcome which doesn't bode well when it comes to well-known or celebrity offenders.

Some of the recent high profile sex offence trials have led to criticisms of the CPS and the police for being part of a "witch-hunt" to bring down celebrities but, anyone who knows anything about the criminal justice system (unfortunately not David Davies) will know that this is not only inaccurate but dangerous.

In these cases the theatrics and the attempts to distract the jury's focus away from the facts and evidence are intensified. In one recent high profile rape trial the defendant spent hours on the witness stand rambling on about his difficult childhood, bereavement and what he had been through and the defence then concluded their case by reading out more than 30 statements from dignitaries, church leaders, politicians, celebrities, army officers; basically anyone that they thought might hold some sway with twelve random jurors.

When the judge summed up the case, much to my surprise, he said that the jury must consider the many references of good character from people in positions of authority in deciding a) whether the defendant would be capable of committing such acts, and b) whether he would be capable of lying in court. So, in effect, he was saying that if a person is able to (and given the opportunity to) find a whole host of high profile character references then he or she is less likely to be guilty. So much for equal access to justice. It raises the question of whether Jimmy Saville would have been found guilty had he been alive to face trial for his crimes.

Victims are subjected to character assassinations and yet don't get the opportunity to communicate their good character or humanity to the jury, whether by talking about the challenges they've faced in life or by having people speak about what jolly good people they are. In this case, only the accused was given the chance to talk about how difficult giving evidence had been for him.

This is a solid example of the reversal of power in rape trials where - unlike other crimes where more power tends to lie with the prosecution, partly because of the police and CPS resources at their disposal - there is so much focus on the victim's activities that the power balance is shifted significantly. One of the alleged victims in a recent case spent hours being cross examined and was given such a hard time on the stand that, as soon as he had finished, the first thing he said to family and friends supporting him was "if I get raped tonight then I'm not reporting it to the police because I don't want to go through that again." The defendant was ultimately found not guilty.

One of the main problems with understanding juries and basing reforms on evidence and research is that it is unlawful to conduct research with real juries. However, a number of studies using trial and jury room simulations have established that juries have little trouble convicting defendants in stranger rape cases but where the victim and the accused know each other they tend to give the defendant the benefit of the doubt.

Another factor which shifts the balance in favour of the defence in sexual offence cases is the often minimal contact between victim and prosecuting counsel before the trial. The defendant will have had a long time to prepare the case in close collaboration with his lawyers and will know the questions he or she will be asked when giving evidence and what the main focus of the defence argument will be.

So, what can be done to improve the situation? Juries are lauded in Britain as an untouchable part of our cultural heritage and a cornerstone of our democracy but, when it comes to sexual offence trials, cases which would return a guilty verdict based on the evidence are being acquitted. That's not to say that we should scrap juries but it is necessary to assess why they're so unwilling to convict in rape cases, particularly when the accused and the victim are known to each other, and how we can change a system which is currently so imbalanced that it isn't fit for purpose.

Some recent changes have undoubtedly had a positive impact but the news that conviction rates have decreased is a startling reminder that the system tragically fails sexual assault victims and needs radical reform. Former Director of Public Prosecutions Kier Starmer is currently conducting a consultation for the Labour Party on rape trials and I sincerely hope that his proposed reforms are more substantial than merely incremental changes which would amount to little more than rearranging the deckchairs on the Titanic.

There are many questions which need to be considered. Should victims be represented in court? Should victims have regular contact with prosecutors and be central to building the prosecution case in the same way that a defendant is? Do we need independent experts in every rape trial challenging the myths deliberately peddled by the defence? Should the judge be encouraged to intervene more to prevent deliberate attempts to misrepresent the reality of rape? Should the burden of proof be clarified? Do judges need more training? Should character references be allowed to influence the verdict? Should the alleged perpetrator be allowed to go into irrelevant detail about their life in order develop empathy amongst the jury? If the point of a trial is justice, does the adversarial system work in sex offence trials or would the 'inquisitorial' system of most Continental European jurisdictions where the trial judge does most of the questioning be more suitable? Should we allow majority rather than unanimous verdicts for juries?

Alison Saunders and Martin Hewitt are right to identify the need to change attitudes and challenge stereotypes about rape and sex offences, particularly in society as a whole. However, our system, based on Blackstone's Formulation, only requires the defence to foster a shred of doubt amongst the jury to result in a defendant being given the benefit of the doubt and acquitted. When it comes to sexual assault trials, where the balance is so weighted against the prosecution, it is no wonder that propagating myths, discrediting victims and distracting jurors' attention away from the facts and evidence is often a successful defence tactic.

If Blackstone's Formulation is based on the principle that the state should not cause undue or mistaken harm then we need to seriously consider the harm to victims of rape and sexual assault who are subjected to an horrendous ordeal and then tragically failed by a system which allows them to be discredited and humiliated in the name of justice and all too often their courage in coming forward turns out to be in vain.


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