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Frances Gibb, Legal Editor
Juries are to be instructed to ignore myths surrounding rape in an attempt to raise Britain’s low conviction rate for the crime.
Under new directions to be given by judges in rape cases, jurors will be told not to assume the victim was “asking for it” because of the way she dressed, her behaviour or her demeanour.
The directions will address popular misconceptions, for instance that in a “real” rape a victim will struggle and be injured, or that a victim’s consent can be inferred from provocative clothing or flirtatious behaviour.
Such myths are said to be exploited by defence lawyers who play to the public’s views that the stereotypical rape involves a stranger at night, violence and injury, and that the victim will report it immediately.
The initiative has been promoted by Vera Baird, QC, the Solicitor-General, because of continuing concern that rape convictions in the UK remain the lowest in Europe.
The idea of judicial directions has been developed over recent months, Ms Baird told The Times. A small group, including psychiatrists, researchers and a “shadow jury”, had looked at what influenced people’s views.
A second group, including judges, lawyers, Treasury counsel and Ms Baird, then drew up draft judicial directions to cover some half dozen of the main myths about rape.
These have been seen by the Lord Chief Justice and are with the Judicial Studies Board, in charge of training judges and consultation between judges.
“It is very hard to draw a line to stop judges from giving evidence, which they are not allowed to do, and letting them give directions based on judicial wisdom,” Ms Baird said. “In their training judges are taught about these myths, and it doesn’t seem right that they should know about these but not be able to do anything about them. I am hopeful we will have a body of work ready by the autumn.”
At present 6.5 per cent of reported rapes end in a conviction, she said, but that compares with 5.2 per cent two years ago. Ms Baird said: “When people say that the rape conviction rate has plummeted from 19 per cent two decades ago to 6.59 per cent now, you have to remember that there were far, far fewer cases of rape reported two decades ago.
“Rape within marriage was not even a crime — and almost all the cases were stranger rapes in dark alleys that were relatively easy to convict.” She added that, although 6.5 per cent of rapes reported to the police resulted in a conviction, 34 per cent of all rapes prosecuted resulted in a conviction — the highest rate for ten years.
The idea of draft directions has been prompted by a recent landmark case in which the judge ruled that jurors could be told that a genuine sex attack victim is sometimes slow to come forward because of the trauma she has experienced. Usually any delay in reporting an assault is seized on by the defence to undermine the credibility of the complainant.
Judges and the Attorney-General have agreed a policy position: “The courts are alert to the need to ensure fairness to complainants in rape cases as well as to defendants. The Court of Appeal has recently confirmed that in a case where a defendant raises the issue of delayed reporting to undermine the credibility of a complainant, a judge is entitled to direct juries that delay can also be due to the traumatic feelings that follow a rape.”
But Peter Lodder, QC, chairman of the Criminal Bar Association, spoke of dangers of a move which might upset the balance of a fair trial. “Of course, moves to increase the effectiveness of prosecutions in rape cases are to be welcomed. But any initiative to make sure that all rape allegations are tried and tried effectively must be counter-balanced by the importance of ensuring that a fair trial for a defendant is not undermined.”
He said the problem with judges giving template directions to juries was that every trial was “case-specific” and a general direction might not help. “Such directions would have to be treated with care and we should not undermine the common sense of juries who can form a view as to what is normal, or abnormal — what is acceptable, or unacceptable,” he said.
Myths to be challenged
— A genuine victim will report rape at once The Court of Appeal has recently confirmed that juries can be told that delay can be down to trauma after the rape
— False allegations of rape are common There is no reliable evidence that more false complaints are made in rape cases than in other serious crimes
— Most rapes are committed by strangers
— Most rapists are known to the victim: a partner or former partner, friend, colleague, acquaintance or professional
— Rape victims should put up a fight and show signs of struggle, and a victim will sustain genital injuries Not all victims resist, many fearing the consequences. Many women freeze
— Consent to sex can be assumed from dress, flirting, drink
— Juries would be told that if a man flashed his bulging wallet around in a pub and then had it stolen, no one would say that the person who stole it was not really a thief
— Stranger rape is more traumatic than rape by a known person
— Sexual assault is a traumatic experience whoever the perpetrator and sometimes more traumatic if a breach of trust is involved
Juries are to be instructed to ignore myths surrounding rape in an attempt to raise Britain’s low conviction rate for the crime.
Under new directions to be given by judges in rape cases, jurors will be told not to assume the victim was “asking for it” because of the way she dressed, her behaviour or her demeanour.
The directions will address popular misconceptions, for instance that in a “real” rape a victim will struggle and be injured, or that a victim’s consent can be inferred from provocative clothing or flirtatious behaviour.
Such myths are said to be exploited by defence lawyers who play to the public’s views that the stereotypical rape involves a stranger at night, violence and injury, and that the victim will report it immediately.
The initiative has been promoted by Vera Baird, QC, the Solicitor-General, because of continuing concern that rape convictions in the UK remain the lowest in Europe.
The idea of judicial directions has been developed over recent months, Ms Baird told The Times. A small group, including psychiatrists, researchers and a “shadow jury”, had looked at what influenced people’s views.
A second group, including judges, lawyers, Treasury counsel and Ms Baird, then drew up draft judicial directions to cover some half dozen of the main myths about rape.
These have been seen by the Lord Chief Justice and are with the Judicial Studies Board, in charge of training judges and consultation between judges.
“It is very hard to draw a line to stop judges from giving evidence, which they are not allowed to do, and letting them give directions based on judicial wisdom,” Ms Baird said. “In their training judges are taught about these myths, and it doesn’t seem right that they should know about these but not be able to do anything about them. I am hopeful we will have a body of work ready by the autumn.”
At present 6.5 per cent of reported rapes end in a conviction, she said, but that compares with 5.2 per cent two years ago. Ms Baird said: “When people say that the rape conviction rate has plummeted from 19 per cent two decades ago to 6.59 per cent now, you have to remember that there were far, far fewer cases of rape reported two decades ago.
“Rape within marriage was not even a crime — and almost all the cases were stranger rapes in dark alleys that were relatively easy to convict.” She added that, although 6.5 per cent of rapes reported to the police resulted in a conviction, 34 per cent of all rapes prosecuted resulted in a conviction — the highest rate for ten years.
The idea of draft directions has been prompted by a recent landmark case in which the judge ruled that jurors could be told that a genuine sex attack victim is sometimes slow to come forward because of the trauma she has experienced. Usually any delay in reporting an assault is seized on by the defence to undermine the credibility of the complainant.
Judges and the Attorney-General have agreed a policy position: “The courts are alert to the need to ensure fairness to complainants in rape cases as well as to defendants. The Court of Appeal has recently confirmed that in a case where a defendant raises the issue of delayed reporting to undermine the credibility of a complainant, a judge is entitled to direct juries that delay can also be due to the traumatic feelings that follow a rape.”
But Peter Lodder, QC, chairman of the Criminal Bar Association, spoke of dangers of a move which might upset the balance of a fair trial. “Of course, moves to increase the effectiveness of prosecutions in rape cases are to be welcomed. But any initiative to make sure that all rape allegations are tried and tried effectively must be counter-balanced by the importance of ensuring that a fair trial for a defendant is not undermined.”
He said the problem with judges giving template directions to juries was that every trial was “case-specific” and a general direction might not help. “Such directions would have to be treated with care and we should not undermine the common sense of juries who can form a view as to what is normal, or abnormal — what is acceptable, or unacceptable,” he said.
Myths to be challenged
— A genuine victim will report rape at once The Court of Appeal has recently confirmed that juries can be told that delay can be down to trauma after the rape
— False allegations of rape are common There is no reliable evidence that more false complaints are made in rape cases than in other serious crimes
— Most rapes are committed by strangers
— Most rapists are known to the victim: a partner or former partner, friend, colleague, acquaintance or professional
— Rape victims should put up a fight and show signs of struggle, and a victim will sustain genital injuries Not all victims resist, many fearing the consequences. Many women freeze
— Consent to sex can be assumed from dress, flirting, drink
— Juries would be told that if a man flashed his bulging wallet around in a pub and then had it stolen, no one would say that the person who stole it was not really a thief
— Stranger rape is more traumatic than rape by a known person
— Sexual assault is a traumatic experience whoever the perpetrator and sometimes more traumatic if a breach of trust is involved
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