Sex case prejudice: A personal view
by
ContraTory
on Tue 18 Oct 2005 09:08 BST
Over the years, a significant number of women have confided to me that someone they had known, raped them. I had no reason to doubt that they were telling the truth; indeed the thought that they might not be had never even entered my head. The circumstances were depressingly similar. They had met ‘a friend’ for social purposes and returned home together ‘well oiled’. They had then been subjected to sexual intercourse against their will. None reported their ordeal to the Police. They were resigned to the fact that they would have been considered extremely foolish to have behaved in the way that they had. No one, they thought, would believe that they had not consented.
I was reminded of these women by a report today (17th October 2005) in The Times by Frances Gibb entitled “Sex case prejudice is still widespread” about speeches made at the recent Bar Annual Conference. We are told that a speaker Ken Macdonald QC reported that the low conviction rate in such cases was of ‘huge concern’. He argued that a reform allowing prosecutors to speak to their witnesses in advance of a trial would help. The Director of Public Prosecutions has commissioned research into whether expert witnesses might be allowed to speak in trials to counter myths about women’s sexual behaviour, such as “she must have consented because she had no physical injuries” and that “it was not common knowledge that women routinely returned to men who beat them up.”
It is reported that Professor Jennifer Temkin of Sussex University said “that the first findings of research among judges and lawyers that she had conducted for the Home Office showed that there was still widespread prejudice and a prevalence of myths about the way women behaved.”
“There was ignorance about the law, with many barristers not knowing that they could not question a woman about her sexual history without making an application to the judge….some judges also “totally misunderstand” the legislation. Juries, too were ignorant about the nature of child sex abuse and often could not believe what they were hearing….As a result, they sometimes had difficulty convicting.”
I admit to not having conducted any research in this matter. I have not been privy to the evidence that provoked the DPP into launching his research. I admit that I know nothing, save for that empirical knowledge gleaned from having been involved in the practise of criminal law during the course of the past twenty-five years. Perhaps I have been blessed by having quite by chance, instructed Counsel who had a very firm understanding of the criminal law. Perhaps too, the judges before whom they appeared were all exceptional in their grasp of the rules of evidence and the law. That they were is beyond doubt.
I must ask you to forgive me however for taking the view that Professor Temkin's assertions concerning the abilities of “many” barristers and judges’ are wholly unfounded. I am unable to accept that in a career spanning a quarter of a century, by sheer chance I have avoided the misfortune of crossing the path of one of these dinosaurs. It was not just barristers, judges and the jury who came in for criticism at the Conference.
Yes, the Police are at fault too. They fail (we are told by Professor Temkin) “to collect evidence in the “golden hour” when women first complained.”
Once again, this is not my own humble experience. Surrey Police seem to be competent in this particular regard. I recall Hampshire Police not being exactly slothful, either. The myth that to juries “no injuries” means “no rape”, is itself a myth. To whom is it “not common knowledge that women routinely returned to the man who beat them up?” In fact most women do not “routinely return”, though disturbingly a significant minority do. I knew that before I practised law. I am unexceptional, an “Ordinary Joe”. If I know it, the general public (the jury) know it too.
As a defence lawyer, I have been involved in cases where false allegations of rape have been made. These cases involved situations were the evidence proved the suspect was innocent. They did not proceed to trial. We have had reports in the media during the course of the past month or so of a case involving a woman having been convicted of perjury for making such false rape claims and another where the judge criticised the Crown for attempting to proceed where the evidence implicated someone other than the defendant. I do not want to dwell upon such cases because it is my prejudice (indeed professional experience) that far more women suffer rape in silence than “fit up” their former partners. The truth is that the public are aware of such cases. When sitting as jury they take seriously their duty to carefully weigh the evidence and not to convict unless they are sure the defendant is guilty beyond reasonable doubt.
The crux of the problem is not the perceived bias or lack of skill or understanding on the part of the lawyers, judges and jury. It is the very nature of the relationship between the victim and rapist. We know (because we have been told) that the vast majority of rape victims are the partners, girlfriends or friends of their attackers. Millions of years of evolution have ensured that members of the opposite sex seek each other’s company for procreational purposes. After a quiet evening out, the couple do not return to his or her flat so that they can just discuss the theories of Marx or Hegel. It is a courting process. When something goes wrong, it is one person’s word against another. I do not have any doubt that in the main juries sympathise with the victim. I have no doubt that they prefer her word to his. At the end of the day, without other evidence, the unpalatable truth is that upon the established facts the jury cannot be certain, so they must acquit.
I fear that yet again, rules will be changed to tip the balance in favour of the prosecution, and that will militate against a fair trial. There is implicit also in these criticisms of the jury system, that the public is not to be trusted to weigh properly the evidence in such matters; that we are prejudiced, ill educated, stupid even. It is not so.
That we must find a way to protect women and punish those who harm them goes without saying, but bending the rules to suit the prosecution, is not the solution.