IS THE LAUNCHING OF A PROJECT TO REVIEW HOW EVIDENCE IS USED IN SEXUAL OFFENCE PROSECUTIONS NECESSARY?
April, 2023
The launching of a project to review how evidence is used in sexual offence prosecutions is necessary in ensuring the CJS can treat victims and witnesses of sexual offences in the best way. If victims or witnesses have negative experiences in court, others may be reluctant to come forward. Though there has been significant process in how trials are handled, with the restriction on the ability to adduce a complainant’s past sexual history, there has been a fall in sexual offence convictions and the number of victims bringing claims to court, though the rate of these offences has increased. This may be because even with an increase in complainant protection, rape myths are still very much present at trial. This results in victims and witnesses being afraid to bring a claim or give evidence, which must change.
This essay will outline how the questioning of victims still allows rape myths to seep into trials and attack a complainant’s credibility. It will then discuss the rape shield and the presence of rape myths in the s.41 gateways. Next, it will discuss the availability of special measures and how they should be expanded to include more victims and witnesses. Lastly, it will discuss jurors’ misconceptions and possible solutions.
Though a complainant may not be questioned about their past sexual history without leave under one of the gateways, they are not completely protected from being subjected to rape myths. They may still be questioned, and unfortunately, many of the questions asked and lines of attack pursued directly stem from rape myths. Complainants may be questioned and criticized on their delay in bringing their claim forward, lack of resistance to an assault, clothing or how much they had been drinking. This can be seen in the Belfast Rugby Trial, where the complainant was cross-examined four separate times, questioned as to why she froze and did not scream for help, and her 'hazy' recollection was used to cast doubt on her claims. (Iliadis et al, 2021) Questions like these continue to push forward rape myths – that a woman who is out late, drunk in a club with her friends, is less innocent than one who is pushed into an alleyway in broad daylight, or that a woman wearing more ‘promiscuous’ clothing is partly at fault for an assault. Her past-times, love and sex life, and clothing choices can be used to “impugn her character and suggest consent.” (Brown, Burman and Jamieson, 1993) Clothing, particularly, is often used to portray defendants as “guilty of incompetent message-decoding,” instead of rape. (Young, 1998) Furthermore, intrusive, hostile and humiliating questioning may lead affect a witness or complainant’s ability to give “full and coherent answers,” due to stress and intimidation. (Doak, 2021)
It is important to acknowledge this and work to tackle rape myths, and ensure that lawyers’ questions are more sensitive. The approach taken in police interviews, focusing on the importance of open-ended questions, breaks and “free-narrative,” (Crown Prosecution Service, 2011) should be applied to complainant and witness questioning as well. Another improvement would be the implementation of a system like Nordic Barnahus system, (Doak, 2021) used for child witnesses and increasingly for complainants in sexual violence cases. The system replaces live cross-examination with investigative interviews, which take place before the trial in a remote location. This reduces the fear of going to court and the possibility of seeing one’s abuser. The process also changes the examination process, using an intermediary who receives advocates’ questions through an earpiece. This allows the complainant or witness to be asked questions by someone they are comfortable with, reducing the stress caused by a stranger asking them intrusive, sometimes hostile, questions. It also allows intermediaries to ask questions in the way best suited to an individual – allowing them to answer to the best of their ability. Adopting a process like this in England would greatly help increase victims’ trust in the system and allow more people to bring claims forward.
Even though rape shield provisions have greatly helped in protecting victims from harmful and humiliating questioning about their sexual history, rape myths are still present and perpetuated through the shield - such as through gateway s.41(3)(c.) Evidence can be adduced to show that the complainant previously had consensual sex that so similar that it could not be “reasonably explained as a coincidence.”[1] Fortunately, not many cases are able to pass through the rape shield as intercourse must be shown to be very similar – but even if the circumstances are identical, this does not mean the victim necessarily consented. In R v T [2004], sexual intercourse on a climbing frame was held to be sufficiently similar to pass through the s.41(3)(c.) gateway, as it was so distinctive. Simply because a complainant has engaged in intercourse with a defendant before, whether twice or 100 times, and in the exact same circumstances, does not mean that they consented this time. This is a harmful myth that increasingly affects complainants the more ‘promiscuous’ they are shown to be.
Some argue that there is a widespread misunderstanding of s.41, which may deter complainants from coming forward. If they believe that their past sexual history will likely be adduced because of s.41, they may believe there is no point coming forward as they will be humiliated and criticized. Therefore, a review of how to tackle this misunderstanding is necessary. Otherwise, the rape shield legislation is effectively working to protect complainants, as the admission of sexual history under the gateways remains exceptional.
Special measures, on the other hand, may need expanding. Though there are many special measures available for vulnerable witnesses, these are put into specific, defined categories – such as those under 18, whose evidence is likely to be diminished by a mental disorder, whose intelligence or social functioning is impaired, or those suffering from a physical disability. It also includes complainants of sexual offences or modern slavery. This covers a large range of witnesses who may need added support or sensitivity during the trial. However, “vulnerability does not begin or end with these categories.” (Doak, 2021) Instead of perceiving vulnerability as something inherent to some, it should be seen as something that affects all of us. Different victims or witnesses of a crime will react differently to giving evidence and being questioned meaning that someone who may not fall into the pre-defined categories of 'vulnerable witness' may still, in fact, be vulnerable. Though their evidence might not be so severely affected that it is not usable, it may not be given to the best of their ability. Additionally, many people may simply not bring forward their complaint or be willing to give evidence, as they fear a trial and its atmosphere. Expanding who may be considered for special measures may allow both complainants and witnesses to feel more comfortable giving evidence and may better allow the justice system to serve its purpose. As mentioned earlier, a system like the Noprdic one may encourage witnesses, who may not have otherwise come forward, to give evidence.
It is difficult to know whether juries are impacted by rape myths - some, such as Cheryl Thomas, claim that rape myths do not affect jury decisions, based on interviews of those who had just completed jury service. However, legislation prevents researchers from being present in jury deliberations, and “observing and accessing real jurors,” making it difficult to “test this issue in a comprehensive empirical way.” (Horan and Delahunty, 2020) Furthermore, rape myths often affect one subconsciously, making it difficult for someone to know they have been affected by them – and even if they are aware of their belief in rape myths, this does not mean that they would admit this in a study. More reliable evidence, for example obtained through realistic mock trials, has shown that jury members often express beliefs about how “real victims would behave,” or what “real rape would look like.” (Leverick, 2019) Therefore, something needs to be done to tackle this. In the UK and other countries such as Canada and Australia, expert evidence has been allowed to be presented to educate juries about “how complainants vary in their behaviour both during and following a sexual assault.” (Horan and Delahunty, 2020) Unfortunately, this has been found to be underused. It may be costly and impractical to do this in all sexual offence cases, and an alternative solution may be to present juries with a standardized, educational video at the start and end of a trial. Another solution may be using a scale to assess whether an individual is affected by rape myths, and to what extent. This could allow those believed to be strongly affected to be excluded from the jury pool.
All of this being said, there has been a significant improvement in the protection of complainants and witnesses in sexual offence trials. However, as mentioned, the continued presence of rape myths in questioning, the rape shield legislation and juries continues to impact victims. The declining number of complaints brought to court shows a lack of trust in the system that needs to be remedied, and a project reviewing how evidence is used in the prosecution of sexual offences is necessary to do this.
[1] Youth Justice and Criminal Evidence Act 1999, s.41(3)(c.)