The Rape of Reason

One Lady Macbeth writes:

I am a barrister. I have prosecuted and defended in Rape cases for more than 10 years. I have never written an article before but I feel I must since reading Libby Brooks’ article on CIF. She contends that there are more than 47,000 rapes every year in the UK of which under 200 result in convictions:

“If you are raped, the likelihood is that the police won’t help you, and the CPS won’t help you. If you unusually achieve a trial, the prosecution won’t help you and the judge won’t help you. This is Britain in the spring of 2009, with a criminal justice system that delivers only one message to rapists: go ahead with impunity.”

Doubtless she has spoken to many of those pressing their agenda in pursuit of ‘victims rights’ or those, like the Oxford tutor of a mini-pupil I recently supervised who start from the point that all sex is Rape unless specific consent is given. I do not recognise the criminal justice system she describes.

It is simply incorrect, as Libby does, to suggest that judges fail to direct juries on new rulings on consent. Any judge who misdirected a jury on such a critical issue would find themselves on the receiving end of an adverse ruling from the Court of Appeal before they could say “majesty of the law” and any conviction would be quashed.

Similarly it is quite wrong to suggest that questions are allowed on a complainants’ past sexual history because of a legal loophole. Section 41 of the Youth Justice and Criminal Evidence Act 1999 set out such inflexible rules governing the admission of such evidence that the House of Lords ruled in 2002 that it was incompatible with an accused person’s right to a fair trial. They corrected this deficit by allowing judges a degree of flexibility to admit relevant evidence if not to do so would endanger the fairness of the trial. A fair trial is hardly a loophole. As a practitioner I know that applications to be allowed to cross examine on past sexual history are routinely rejected.

All judges who try Rape cases are inevitably experienced criminal practitioners who commonly undertook such cases at the Bar and who have to undertake strenuous and repeated courses in the law governing the area.

There is certainly a perception that Rape cases are handled badly. I hold no brief for the police, CPS or Judiciary but the bald assertion that they ‘won’t help’ a Rape victim is no way to present an argument. There are dedicated Rape suites attached to police stations in every area of the country. There are specially trained officers and medical staff who acquire genuine expertise in such cases. In London there are three medical facilities (The Havens) dedicated to the sensitive investigation of any injuries caused by the assaults, a fourth is planned for the Home Counties. The Crown Prosecution Service has specialist lawyers in Rape cases and, unusually, before a decision to drop a case is taken it must be discussed with a second specialist lawyer. Those cases in which I have appeared, whether defending or prosecuting, frequently involve both police officers and Crown Prosecutors who I would consider zealous in their pursuit of the defendant. Occasionally overly so.

I do see a high acquittal rate in Rape cases. I do not think this represents juries getting it wrong or letting Rapists off. Rape is not a special offence. There is no different evidential standard than in other cases. Evidence is presented, tested and a decision reached as in all other cases. Juries do not like to convict defendants of very serious offences, knowing the effect it would have on that mans life, unless they are sure he is guilty. That is surely right.

I see cases which will contribute to the low conviction rate which should never have been brought to trial. Prosecuting Counsel are unwilling to advise against proceeding with such cases because they will be over ruled and not instructed again. The Crown Prosecution Service abdicate the decision to stop a case to the judge. Judges abdicate the decision to the jury. Juries have sons and brothers, husbands and fathers and they acquit.

Here are some examples of recent cases, which have ended in a verdict of not guilty. A case where the complainant had been videoed giving oral sex to the defendant at the time he was said to have been raping her. A case where the complainant explained during cross examination that she had consented to having had sex with the defendant at the time but retrospectively withdrew it after they had a row when he had hit her. The high profile case of a lawyer who was so drunk she didn’t know whether she had had sex or not with a young chef: she also did not remember having had a lucid conversation with a third person for the best part of an hour. No doubt the jury thought that it was perfectly possible that she had, as the defendant said, fully and consensually engaged in sex even though she was drunk and could not now remember it. Unsatisfactory or instantly regretted sex does not constitute Rape. Drunken consent is nevertheless consent.

There are a number of measures that have been relatively recently introduced in order to ease the burden on the complainant of giving evidence which have had quite unintended consequences. These measures were introduced as a result of heavy lobbying by victims rights organisations but have harmed those they were intended to protect.

It is standard practice now for the complainant making an allegation of sexual assault to be interviewed on video. It is called ‘achieving best evidence’ or ABE in the jargon. The complainant is sat on a sofa in a room with cameras and a sympathetic officer interviews them. The good practice guidelines insist that the officer first puts the witness at their ease, explains that they can use whatever language they feel comfortable with, asks open questions and then gently draws out their story. The video is played in full to the jury. The effect is stultifyingly dull. They last for hours, they are repetitive, the witness seems miles from the camera and any human emotion is lost. This process is exacerbated at trial because the complainant is allowed to be cross examined via a video link from another room in the building. Again, the idea is understandable, the complainant might be overawed by being in a courtroom and frightened by seeing the defendant so, to make them more comfortable they are insulated from the trial process. The reality is that the jury do not see any fear or apprehension in the complainant when they see the defendant, they do not see the relative sizes of the complainant and defendant, they do not see the complainant cry. If they do cry, the judge, in accordance with best practice, turns the link off to protect the dignity of the witness. It is all rather like an exciting episode of Eastenders. It is hardly surprising that juries find themselves unconvinced by such evidence.

Rape should be prosecuted like all other crimes. If the evidence is there, prosecute hard and fair. If it is not, do not humiliate the complainant with a public acquittal and then blame the jury.

Last year, the Labour MP Harry Cohen introduced a Ten Minute Rule Bill to abolish sleepwalking as a defence against rape. Which, believe it or not, it currently is.

The specific offences of rape, serious sexual assault and indecent assault should be abolished, since they serve only to keep on the streets people who ought to be behind bars. Instead, the sexual element should be made an aggravating factor in offences against the person generally, enabling the maximum sentence to be doubled.

That way, a few silly cases that currently come to court would not do so, while many serious cases that currently either never make it to court or end in an acquittal would at least end in a conviction for something. My jaw drops when I hear or read reports (no doubt truthful) of women with serious injuries whose assailants were never charged with anything because there was considered little or no chance of a conviction for rape. Why were they not charged with, say, grievous bodily harm? This way, they would be.

Furthermore, this would be achieved without compromising fundamental principles such as trial by jury and the burden of proof on the part of the prosecution, both of which have already been eroded far too much (i.e., particularly in the latter case, at all).

At the same time, why is no one asking why, if there are so few convictions for rape, almost nobody who makes a false allegation of rape is ever even charged with perjury (with which, given its prevalence, next to nobody is ever charged in general), or with perverting the course of justice, or with making false statements to the Police?