by Harriet Wistrich, CWJ Director
Nowhere is a woman’s experience of the criminal justice system brought into greater relief than when she reaches the court room, whether as a witness or as a defendant. This has been illustrated brilliantly in Helena Kennedy’s classic text, ‘Eve was Framed’ (and her recent update, ‘Eve was shamed’) in which she shares her experience and observations of the British legal system and how sexist attitudes towards women produce unjust outcomes.
The woeful experience of rape victims in the criminal justice system, and particularly in the court room, has been well documented and prompted significant legislative reform with further reforms promised in the New Year under the government’s proposed Victim’s Law. For those rare occasions (under 3%) when a rape allegation actually reaches the criminal court, victims need to be prepared for the most vigorous cross examination. In most rape cases the victim will be subject to a vigorous attack by the defence of both her credibility and character to cast doubt in the jury’s mind, as to whether she consented to sex or was effectively ‘asking for it’. In our jointly authored report on the Decriminalisation of Rape published last year, we set out a history of some of the key reforms introduced and identified what else needs to change. However, despite the prohibition of cross examination as to previous sexual history (without special application to the judge) and the introduction of guidance on rape myths and stereotypes, the experience of giving evidence is still often described as brutal.
Disclosure in rape cases
One of the major issues for rape and sexual offence victims, is the frequent requirement to provide large quantities of disclosure, not only in digital form but also from third parties including medical records and not infrequently school and social services records amongst other things. The content of such disclosure is often intimate, sensitive and deeply personal. The idea that some of this disclosure will be provided to the alleged perpetrator and his team is one of the reasons that many victims pull out of the process before trial. Of course defendants have a right to disclosure of any evidence that might undermine the prosecution case, but that should be limited only to evidence relevant to the issues in dispute in the case, not an opportunity for a fishing expedition to search more generally for evidence that might, for example, be useful in attacking character of a victim and thereby casting doubt as to credibility.
It is not surprising therefore that so many rape victims feel that they are on trial, as much, if not more than the defendant who is under no such obligation to disclose all of his personal records (although some may be seized by the police, upon arrest). The sense of victim blaming may be compounded where a defendant gets the benefit of a ‘good character’ direction (in cases where he has no criminal convictions), whereas a victim will get no such equivalent direction. Given that so many rape cases will depend on the jury’s assessment of who is telling the truth, this can be an additional undermining factor that weighs against a victim.
‘False’ rape allegations
The measures that exist to assist rape victims magically disappear if a woman who has made an allegation of rape is prosecuted in circumstances where there is some evidence to suggest she may have lied about the rape. False allegations of rape are of course very rare; that is unsurprising given the horrendous experience that most rape victims experience when they pursue an allegation to court. Where these prosecutions take place, and the alleged victim becomes a defendant, she will lose her entitlement to anonymity and the benefit of guidance on rape myths and stereotypes. Such prosecutions (usually for perverting the course of justice and/or perjury) are rare, estimated to be in less than 1% of rape allegations made, but where the CPS consider there is evidence to prosecute, we often see far more investment by the police and prosecution in building a case to support a conviction than in the average rape prosecution.
Whilst a malicious allegation leading to the unlawful arrest and prosecution of an innocent person should in most circumstances be prosecuted, the risks of doing so where the evidence is not conclusive can be grave. This is nowhere better illustrated than in the excellent Netflix drama, ‘Unbelievable’ based on a real case where two victims of a very dangerous and clever serial rapist were convicted of offences when they were in fact victims of a most traumatic attack. In many of the cases in the UK where such prosecutions have taken place the woman may be suffering from a serious mental illness, as in the tragic case of Eleanor de Freitas, who took her own life on the eve of the trial, rather than, as she stated in her suicide note, facing the ‘shame’ she anticipated being exposed to in the court room. We will never know whether the ‘shame’ she referred to was of being exposed as a liar, or of her past sexual practices being exposed. Bipolar disorder, the illness that Eleanor was diagnosed with, can cause hypersexuality during manic episodes. It is an enduring tragedy for Eleanor’s family that the CPS pursued this prosecution when a psychiatric report warned of the risk of completed suicide.
Criminalisation of victims
Whilst rape is now recognised as a particularly complex area for courts to deal with protections put in place to tackle what are essentially misogynist attitudes which undermine justice, similar measures do not on the whole exist in other types of cases involving violence against women. In our report on Women who Kill we highlighted the number of miscarriages of justice in this area, which are in part caused by myths and stereotypes around domestic violence and a lack of specialist training for criminal justice practitioner in this area. For example, it is often asked why a woman who killed her abusive partner didn’t leave that relationship. Or victims who do not conform to the stereotypical view of how a victim should behave are doubted as to whether they are really victims.
Understanding the dynamics of a coercive and controlling relationship and why, for example, a woman may feel forced to commit crimes, such as handling stolen goods, or use a weapon to resist anticipated violence, can be critical. Expert evidence can help to explain the actions of the defendant in a particular situation. The English courts are unfortunately very reluctant to admit such evidence unless it is of a medical or clinical nature. Expert evidence could help provide a better understanding of why a woman acted in the way she did. Expert cultural reports which explain religious or community codes and beliefs around shame and honour, for example, can be invaluable. Special training for judges and lawyers which is gender, race and trauma informed should be mandatory. Guidance on myths and stereotypes surrounding domestic violence should be introduced. There should be further modelling and extension of specialist domestic violence courts, including using these where women are being prosecuted but advance a defence based on their experience of DV.
Legal representation for victims
Victims do not have their own lawyers. The prosecutor’s role is intended to be neutral and independent; their role is to present evidence. Some jurisdictions in Europe offer legal representation for victims but they usually where the justice system is inquisitorial. We would support the use of independent legal representation for victims, for some limited circumstances including, for example there are disputes as to disclosure in rape cases.
We wait to see whether a new scheme being introduced, known as Section 28, which will allow cross examination of a modern slavery or rape victim’s evidence to be pre-recorded earlier in the process and outside the court room.
Readers may wish to respond (as CWJ will be) to two current important consultations:
1. Delivering justice for victims: A consultation on improving victims’ experiences of the justice