The 1976 Sexual Offences Act was designed to protect rape victims from unnecessary cross-examination about their previous sexual experience. But is it working in practice?
Two particular trials which stick in my mind symbolize the inconsistencies and contradictions manifest in the operation of current rape laws. In the first case, a teenager was allegedly raped by a young man whom she knew as a friend. He was tried at the Old Bailey, and his evidence was that the complainant agreed to have sex with him and that, in any case, it was well known in the local community that she was promiscuous and easy. At the trial, she had to suffer the following interrogation from the judge, Mr Justice Kilner-Brown:
"-How old were you at the time of this incident?
-I was 16 1/2.
-Had you had sex with anyone before this?
-Yes.
-With one boy, or more than one boy?
-More than one.
-And at the time, were you going steady with one boy?
-Yes.
-So whatever may have been reputation, were you going steady and was all that finished with?"
A couple of months earlier, in the very same court, a similar case was up before another judge. There, the young man wanted to give evidence of what he had heard about the alleged victim's past sexual history. The girl was 14 and, according to the defendant, she had been involved in various sexual activities with a number of boys at a party. The Recorder of London, Mr James Miskin, who was trying that case, did not allow defence counsel to cross-examine the complainant about any aspect of her sexual history. The jury had to reach their verdict without any knowledge of the alleged victim's reputation.
Leaving aside the fact that the jury acquitted in the first case and convicted in the second, the complainants' experience of the whole court procedure will have been very different. The kind of treatment that rape victims receive in court depends to a considerable degree on the attitude and sensitivity of the trial judge. Unfortunately, in my experience, the first approach illustrated here is rather more prevalent than the second.
In the context of a study on the law of rape, I attended some 50 contested trials and 30 cases where the defendant pleaded "guilty" at the Central Criminal Court in 1978-79. Press reports usually create the impression that gang rapes are not only particularly horrific, but also relatively rare. The reality of that turned out to be rather different: although these cases were undoubtedly horrific, they were by no means rare. During the year I spent at these courts, one in three trials involved two or more defendants.
My overall impression was that although the law works well for certain types of rape offences, it is unsatisfactory for the vast majority of cases which involve the issue of consent. The rape victim's harassment by the court seemed reduced to a minimum in cases which conformed to the stereotype of the "ideal" rape. Here, the incident tended to be seen as an explosive sexual encounter between total strangers, the offender being a dangerous psychopath - rather like the recent case of the Tottenham rapist.
The "ideal" victim was either sexually inexperienced, or at least respectable - virginity virtually guaranteed a conviction. In any case, she did everything in her power to resist her attacker and had serious physical injuries to prove it. There seemed to be an assumption that anything other than such an offence was not rape at all. As one lawyer cautioned the jury: "This was not the case of someone being attacked in a dark alley by some sex-starved young man. These people knew each other."
The "ideal" cases, however, only represented about a third of the contested rapes tried at the Old Bailey during this period, and furthermore, most defendants involved in these pleaded "guilty". My observation was that about 80 per cent of contested trials did not belong to this category. In the majority of cases, the defendant and the complainant were known to each other and the standard defence was one of consent. Public concern with the protection of the rape victim and attempts at reducing the trauma involved in attending court have not led to much improvement in practice as far as these rapes are concerned.
The last major public outcry on the law of rape in 1975 (triggered, as the current one, by a number of disturbing media reports of grossly unfair attitudes to the victim and lenient sentences for the rapist) led to the appointment of the Advisory Group on the Law of Rape and subsequently, to seemingly significant changes in the law.
The Sexual Offences (Amendment) Act 1976 was expressly designed to protect the complainant from publicity as well as from hostile and distressing cross-examination in court. Limitations were placed on the introduction of evidence regarding her previous sexual experience. It is now up to the trial judge to decide whether or not such evidence is relevant in any particular case. Not surprisingly, wide discretion has led to a very uneven implementation of the law. I found that while some judges adhered to the spirit of the 1976 Act, others tended to interpret it in rather a narrow way and sometimes disregarded it altogether.
Judge Brian Gibbens voiced his disapproval of the Act in no uncertain terms: "I think it might be unfair, perhaps even more so in an older woman, to prevent cross-examination on sexual proclivities, but that is what Parliament wants... This wretched section overturns many of our habits in criminal trials". Such opinions, I felt, clearly had some influence on how judges interpreted and adhered to the law.
Leaving aside the strictly legal considerations involved in the operation of the 1976 Act, it was clear from my observation that individual judges had blatantly different approaches to complainants in rape cases. At some point in the course of giving evidence, most women became tearful or even acutely distressed. Attitudes by judges, again, were very variable. The majority were fairly sympathetic, particularly when the victim was young, and adjourned for a short while to give her time to recover.
Others were not only unsympathetic, but down-right hostile. In one case, a 17-year-old complainant, who had been assaulted by two men she did not know, was having great difficulty in telling the court what had happened to her. She became very upset, crying and muttering "I can't, I can't say it...". Judge Edward Sutcliffe, looked at the jury and told her in a harsh tone and with considerable exasperation: "You're going to have to pull yourself together if you are going to give this evidence, you know".
Although the law imposes some limitations on the cross-examination of the complainant about her sexual history with men other than the defendant, there is no restriction about her prior relationship with the accused. When a woman was known to have had a sexual relationship with a man who later raped her, no matter how brutally, her allegations was invariably viewed with extreme suspicion. One woman had been raped and severely beaten by her ex-boyfriend and the defence justified the incident with reference to earlier episodes of violence which, it was claimed, she accepted and possibly enjoyed. As his counsel suggested: "That night was no different to others - the beating may have been more severe, but that is all".
Needless to say, the defendant was acquitted. Shortly afterwards, he was sentenced to life imprisonment (an extremely rare sentence) after pleading guilty to the rape of a woman who had minor physical injuries, but who was only slightly acquainted with him.
The defence tended to rely heavily on the old stereotype, apparently widely accepted by juries, that rape occurs as a result of uncontrollable sexual urges aroused by provocative women. Thus, victims were almost invariably accused of "leading on" their assailants. Provocative behaviour in this sense ranged from accepting a lift home to being out alone late at night. Defence lawyers had no difficulty in presenting women as provocative or sexually available. Their actions and motives were scrutinized at the slightest hint of what has been called contributory negligence on their part. Consider, for example, the following questions:
"Were you in the habit of going to pubs by yourself in the evening?"
"At the disco, you just danced with anybody and everybody, didn't you?"
"Were you quite happy to accept a lift home from him?"
The defence often tried to show that the woman put herself in a risky situation in order to shift the blame from the defendant: suggestions that she was not entirely innocent were used to imply that the defendant was not altogether guilty. Alleged victims were more or less directly accused of provocation in the most absurd situations: in one case, the defendant, who had never met the complainant before, broke into her flat in the middle of the night. All that didn't stop him from claiming that she consented, and during the trial, she was cross-examined as follows:
"-You wore no clothes in bed?
-No, I had on a quilt and a sheet.
-Were your breasts showing?
-No.
-I suggest that the quilt slipped and your breasts were showing".
The general character of the alleged victim was also frequently attacked in court. The jury's attention would be drawn to various facts about her - for example, that she lived in a squat, that her boyfriend had been in trouble with the police over drugs, that she herself had a drink problem or a criminal record. The relevance of such matters to the issue of consent is highly doubtful, but the general lifestyle of all but the most respectable victims was regularly scrutinized in this way. Discrediting her in general terms gave the defence grounds to ask the jury to disbelieve her rape complaint. As one lawyer said: "You've heard evidence about the sort of girl she is - you have to take that into account as a background of the case".
One favourite strategy used to discredit the complainant was to suggest that she had a history of psychiatric illness. Allegations of mental instability were sometimes made without any more concrete evidence that the victim's spontaneous mentioning of feeling depressed. However, where the defence had something more tangible to go on, such as past suicide attempts or periods of psychiatric treatment, the whole area became explored in great detail during the trial.
This would then be used by the defence to suggest that the woman's evidence was unreliable because of her psychiatric history. For example, "We have here a girl of 18. We know from the scars on her wrists that there is some history of attempted suicide. She might be confusing this with another incident". An alternative was to imply that the alleged victim was one of those dreaded women who spend their lives making unfounded rape allegations against innocent men.
The 1976 Act emphasized that the crucial element in the offence of rape is the lack of consent, not force. Nevertheless, rape victims were still expected to prove in court that they physically resisted to the utmost. Cross-examination on this subject tended to set up an expectation of how "real" victims behave, and the particular complainant's reaction was then measured against that:
"-Did you scratch his face?
-You don't think of that at the time.
-Surely, it's instinctive?
-I didn't have the strength to do anything.
-Did you try and run away?
-Yes.
-Did you hit him?
-No.
-Did you push him away?
-Yes.
-Kick him?
-You don't think of things like that, I've already explained".
When the complainant did not have at least some injuries, her story was rarely substantiated. On the other hand, severe injuries did not guarantee success for the prosecution. One young woman who had been locked into a room with her attacker all night eventually got away from him by jumping out of a second floor window. She broke her hip, and now has a permanent limp, but the defendant was acquitted. Another victim needed several stitches for a vaginal tear, and the defence argued that such injuries were perfectly consistent with consent. The expert medical witness, Dr Paul, had this to say: "There isn't a single obstetrician who has practised over five years who has not seen such tears as a result of consensual intercourse in non-virgins". In that particular case, the jury was not convinced.
When the alleged victim did not report the rape at the very first opportunity, her case was always regarded with great doubt. The defence speech would sound something like this:
"Afterwards, she doesn't go to the police or anyone in the street to complain. She doesn't complain to her mother, which would have been normal. Is her conduct afterwards consistent with a person who was raped, or who consented?"
Apart from adding to the horrors of cross-examination, a late report seemed to have quite an impact on the outcome of the trial. Convictions were significantly higher when an immediate complaint was made, and where there was a delay of more than 24 hours, the defendant was nearly always acquitted. Early reporting, however, did not mean that the woman would necessarily be believed. One woman, allegedly raped in a house in middle-class suburbia, ran naked into the street, screaming for help, in broad daylight. Nevertheless, the jury felt that she had consented and her assailant was acquitted.
If all these attempts at discrediting the complainant and impeaching her credibility were not enough to sway the jury, the judge's corroboration warning often seemed to tip the scales against her. Although corroboration is not required in law, judges always warn the jury about the dangers of convicting on the woman's word alone. Some judges managed to do this in relatively neutral terms and to convey that the warning is given in all sexual offences irrespective of the victim's sex. Usually, however, the corrobation warning was loaded and prejudicial, rather like this one:
"Human experience in the courts has shown that women and girls, for all sorts of reasons and sometimes for no reason at all, tell a false story which is extremely easy to fabricate but extremely difficult to refute".
Although the recent publicity surrounding rape has focussed on apparently exceptional and unusual cases, my experience suggests that attention should be directed at what happens in court on an everyday basis to the more "ordinary" cases. The victim continues to be on trial just as much, if not more, than the defendant. She gets the blame for what happened, on the grounds that she asked for it and probably deserved it anyway. While the defendant's rights must clearly be protected, the victim also deserves to be treated with dignity - a quality which certainly is not a distinguishing mark of current court-room practice.
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