[quote=diana_holbourn,12th October 2004 - 03:04 PM]Saffron,

I'm wondering if you got the correct counsel on the matter. The last I heard, the government had refused to ban questions about sexual history outright. Can you point me to any very recent changes in the law that would indicate that they've changed their position? As far as I'm aware, what's changed is that now a defence barrister has to apply to the judge to ask questions about a woman's sexual history and explain why it's relevant, but often, they get permission.


Hello, i managed to find this article that explains things a bit .Read the section under Sexual History.I have bolded up the relevant points.
Snoopy <_<


Campaigners for rape victims are calling for special lawyers to work with women in rape cases to try to increase conviction rates.
It comes as the BBC has learned that fewer than one in 10 rape cases ends in conviction, compared to one in three a decade ago.

Between 1999 and 2000 nearly 8,500 cases of rape were reported to the police. Out of that number just 634 convictions were secured, that is just 7.5%.



We think it is very important to have special prosecutors because cases are just given to whoever is available on the day

Sandra McNeill
Rape Crisis Federation

The issue of evidence lies at the heart of the problem in convicting rapists.

What is worrying campaigners further is that they estimate that three quarters of women who are raped never even come forward to police.

The Crown Prosecution Service (CPS) says the conviction rate is low because of the huge rise in rapes reported which involve a man already known to the woman.

In these case, they say, it is often one word against another and therefore very difficult to prove. It means that 50% of cases never get any further than the police station.

But campaigners say that even if a case comes to trial, the way a woman can be questioned about details of her sexual history means the odds are often stacked in the defence&#39;s favour.

Sexual history

Former criminal barrister Sarah Maguire says the situation has become so bad she has stopped defending people accused of rape because it is so easy to get them off.

"I like a challenge when I am in a court case," she told the BBC.

"If I am going to be trying to persuade a jury to acquit a client I like to feel that when I win it is because of my advocacy, not because the whole system is so stacked in my favour.

"It is too easy to win a rape case."

America and Denmark have tackled the problem by introducing special advocates for women to help steer their cases through the courts.

In New York state it has helped push conviction rates above 50%.

UK campaigners say it is time Britain looked at others&#39; systems for rape cases.



We have to be satisfied that someone is rightly being put on trail before a jury

Sandie Hebblethwaite
CPS
Sandra McNeill of the Rape Crisis Federation said: "I would like to see a package of changes which involve advocates for women so when there are legal arguments there is some one in there arguing her end.

"And we think it is very important to have special prosecutors because cases are just given to whoever is available on the day. They don&#39;t have any contact with the women before hand.

"We think the introduction of special prosecutors would help tackle the conviction rate because they would be specialised as the defence is specialise."

The CPS has ruled out special independent advocates for women but has started to use special barristers in prosecuting sex offence cases.

It is also increasing contact between the victims and the CPS.

However, it says a case should only proceed if there is a realistic prospect of conviction.

Sandie Hebblethwaite of the CPS said: "We have to be satisfied that someone is rightly being put on trail before a jury.

"The consequences of a conviction for rape are very serious, up to life imprisonment.

Radical overhaul

"Cleary no one should be put in the position of being convicted of rape by a jury with the consequences if there was not sufficient evidence to put them on trial in the first place."
But for those who have already had a bad experience of the system this is not enough.

"If there is a one per cent chance of conviction they should take it," one rape victim told the BBC.

"I have been told all along that rape is the second most serious time next to murder.

"Something of like 94% of murderers get convicted so why do only about 9% of rapists get convicted. I am not standing for that."

The Home Office says there have been some moves to improve the rates of rape convictions.

But with figures as low as they are currently it is perhaps unsurprising that campaigners are arguing for a radical overhaul of the system.

Sorry i have to post in twice but i managed to find the articel i was reffering to earlier.

Snoops

Judge says new rape law fails to protect victims

GREIG CAMERON


A LEADING Scottish judge has criticised the courts for failing to enforce a law preventing the sexual history of a rape victim being scrutinised unnecessarily.

The act, introduced in 2002, was brought in after teenager Lindsay Anderson committed suicide following a traumatic cross-examination in court after she had been raped.

But Sheriff Andrew Lothian said the Sexual Offences (Procedure and Evidence) (Scotland) Act is being sidestepped without challenge by an increasing number of lawyers.

The act provides powers to protect women from irrelevant questioning about their sexual past by making sure these questions have to be lodged with the court in advance.

But Lothian claims that more and more applications for questioning are being lodged and the Crown prosecution is not challenging this.

He said: "It would appear that more applications for relaxation are being sought than may be strictly necessary.

"This state of affairs, which some commentators have seen as the Crown hardly fighting tooth and nail for its witnesses, and the court taking its lead from the attitude of the parties rather than by independent assessment, may mean that there will be less restrictions than had been anticipated.

"I am afraid we have not heard the last of this one."

Sandy Brindley, national development worker for Rape Crisis Scotland, said it was crucial the Crown takes a tough stance when enforcing the act.

She said: "There has been some concern about the act and it is really worrying to hear a sheriff is voicing these fears.

"There needs to be a robust approach by the Crown, ensuring whenever there is an application for this kind of evidence, it appeals against it."

John Scott, solicitor advocate and chair of the Scottish Human Rights Centre, said: "I do not think the act is really working for anyone. For a lawyer defending an accused person, it makes it much easier to get things wrong.

"For a complainer, the impression I get from cases I have handled is there are more questions being asked than there were before the act."

Lindsay Anderson, 17, committed suicide in July 2002 following a cross-examination by defence lawyer John Carruthers. The teenager was asked to display the underwear she wore during her rape in 2001.

[quote=Snoopyseed,13th October 2004 - 03:06 AM]Sorry i have to post in twice but i managed to find the articel i was reffering to earlier.

Snoops?

Judge says new rape law fails to protect victims

GREIG CAMERON
A LEADING Scottish judge has criticised the courts for failing to enforce a law preventing the sexual history of a rape victim being scrutinised unnecessarily.

The act, introduced in 2002, was brought in after teenager Lindsay Anderson committed suicide following a traumatic cross-examination in court after she had been raped.



I also have to point out that it was because of the cross examination rules that prevented many people reporting the rape, likening it to a second rape in court.I have to say that it was because of the cros examination rule altogether that totally stopped me from reporting the monster who raped me.
Snoopy

Hi Snoopy

Please don&#39;t misunderstand me - as I said in my earlier post I understand that there are cases where this law SHOULD remain. But in cases where it is a question of one person&#39;s word against another&#39;s, it is surely not just to allow the prosecution one line of questioning without allowing the defence the same privilege.

In my husband&#39;s case, the only evidence offered was his accuser&#39;s word. The jury were asked to decide who they believed. The prosection asked my husband every minute detail of his sexual history, down to how many partners he had had, how many one night stands etc., despite the fact that we have been happily married for 7 years. We were not allowed to question her about her sex life, which by all accounts was incredibly diverse and active. As a consequence, my husband was portrayed as a sexually active, immoral man out for a good time, and she came across as a virginal saint.

What chance did he have of acquittal, when the scales of justice were so heavily weighted against him? It is an exact flipside of the cases you are talking about earlier - he was judged to be "up for it" because of his sexual history. I don&#39;t dispute that the cases you have outlined above are horrific, and that something in the law DID need to change. But when the decision of conviction rests on one persons word against the other, how can it be justice to allow such biased questioning?

I think the key in this case is that it was not the victim who was up for trial, it was your husband.The victims are not questioned as they are not being accused of anything.
I think another point also is that it doesnt matter how many times a person has had sex in their life or if they are promiscuous or not, it doesnt matter if they are virgins or prostitutes, no one deserves to be raped.
As already mentioned many times, your husbands case falls in the minority, compared to cases where the defendant is guilty.

You said
"But when the decision of conviction rests on one persons word against the other, how can it be justice to allow such biased questioning?"

There must of been more to it than this, as hearsay is not law.
If your husband was convicted on one persons word, without any evidence, i cant see how it is not possible for an appeal in any way?
I also cannot see how it was possible for a conviction to hold up without evidence, as i said before hearsay is not law.
If this is the case you were very poorly defended, and surly your husband could not of gone to prison without any evidence to proove he is guilty, what about an alibi? where was he at the time of the alledged rape? who was he with? surley he could prove he was elsewhere if he is innocent?
I just fail to see how anyone can be convicted without no evidence at all, in fact with cases where there is no eveidence they rarly get out of the police station and into court.The CPS just wouldnt take a risk of sending it to court unless thye know thye can secure a conviction, and to secure a conviction based on no evidence whatsoever, is just not right. With no evidence it should be easy to prove your husbands innocence by having alibis, ect? and therefor liable for an appeal?
Snoopy

Judging by Saffron&#39;s case, it seems that maybe the law should be changed to make it so both prosecution and defence have to apply to the judge and make a convincing case as to why it&#39;s relevant to bring sexual history into a case.

It seems to me, Saffron, that your barrister must have defended your husband poorly if he didn&#39;t ever intervene to stop questions that he could have demonstrated to be irrelevant by pointing out that promiscuous people won&#39;t necessarily be more likely to rape people, because rapists are often motivated by a desire to gain power over someone or to vent anger on them, or to humiliate or scare them, not just by a desire for sex.

Dont know if I got the quote bit right&#33; Sorry if I didnt&#33;&#33;

Anyway, the point is, saffron is right. My husband was acquitted, which was totally the right decision.

However, he should have NEVER been in court in the first place - even the prosecution barriser admitted that to me as we were waiting for the verdict. He was visibly embarrassed when my husband produced photographic evidence which completely disproved this woman&#39;s entire story.

The entire case was built on one woman&#39;s word, and circumstancial &#39;evidence&#39; that was made to fit the story. The allegation was 18 years old. The woman had been married since the alleged attack and had 2 children with her husband. She was clearly disturbed, and clearly something had happened in her past. However, there was not one shred of evidence to suggest that my husband even knew her (which he didnt). worse, the detailed descriptions of the place the alleged attack took place in, and the detailed description of my husband&#39;s physical appearance were completely inaccurate, bordering on to the absurd. This is not isolated - it is not a weekly occurance, I grant you that - but it isnt unusual either. My husband ended up in court because he totally refuted this woman&#39;s claims - the CPS took that as &#39;someone is lying&#39; and they did not really care who that was.

The point is, if the police were allowed to conduct a full and thorough investigation, rather than the biased &#39;complainant validation&#39; exercise they carry out now before the CPS get involved, the false allegations would be weeded out before they get any where near a court room. That would stop innocent men being convicted on dubious terms with no appeal - as quite often if there was no evidence to prove a story, there will be an equal amount of no evidence to disprove it either&#33;

I back this campaign in principal - in practice, however, the law needs to be reviewed before the falsely accused (who are completely innocent) can be drawn into the debate. These are the people that the system has betrayed the most. I dont want to upset anyone with that comment - at least victims have the backing of the authorities as they are fighting for their justice.

Hi Snoopy

In my husband&#39;s case it was not a rape trial, although he was originally accused of rape. However, the complainant waited 14 weeks before realising she hadn&#39;t been raped, but merely indecently assaulted. There was no forensic evidence to prove that he had even touched her.

However, he did admit that they had been in her hotel room together, they were both exceptionally drunk, and that she had instigated sexual contact. She attempted to initiate sex, and he felt guilty and left. She was furious that he had turned her down, and went to a friend&#39;s room and claimed she had been raped. She insisted she didn&#39;t want to go to the police, but her friend persuaded her to go.

My husband voluntarily attended the police station and was immediately arrested for rape. It wasn&#39;t until 14 weeks later that his accuser phoned the police and said she hadn&#39;t actually been raped. My husband admitted consensual sexual contact, she insisted that it had been non-consensual, and that she was asleep while he touched her. And there you have it.

Like you, I couldn&#39;t see that the case would ever get to trial, as it was based literally on one person&#39;s word against another. But as our solicitor said, sexual assault it a very serious accusation, and the police had to take the case as far as it would go. And the CPS are under a tremendous amount of pressure to increase convictions for rape and sexual crimes.

I appreciate that it was not the victim who was on trial, but my husband. However, in this case, credibility of the defendant and the witness is absolutely crucial - so how can the prosecution be allowed to destroy his credibility, but the defence are not alllowed to do the same with the prosecution&#39;s key witness.

I believe now that we were very poorly represented, and I wish that at the time we had questioned and probed our barrister and solicitor more. But as we were living through the nightmare, we genuinely thought that they knew best. It&#39;s a bit like getting a diagnosis from a doctor - unless you have been misdiagnosed in the past, you tend to trust your doctor to make the right decision.

I think the idea of having to make application to the judge before you can question someone on their sex life is a far more just idea. Like Diana said, just because someone has had numerous sexual partners does not mean they are more likely to rape or assault someone. Rape is more commonly about power than sexual gratification.

Hindsight is a wonderful thing, and with its benefit, my husband would not have allowed himself to be in the situation where he could be accused of rape. But he was foolish. Men do need to be more aware that by getting themselves into that situation they are vulnerable to accusations like these.

Hello Saffron, i can see the bigger picture now.I think to be honest the fact that your husband was drunk and in the same hotel room as this women, highly went agaisnt him in the eyes of the law. Even if nothing did happen it would be incredibly hard to prove innocence because he was actaully there, and drunk and present, therefore unable to have a defence.They would of only brought the fact that he was drunk up in court and used this against him, if it had of gone to trial.I do however think that now you were given the best advice in regards to taking a plea bargain.And like you said

"But he was foolish. Men do need to be more aware that by getting themselves into that situation they are vulnerable to accusations like these."

Where ever drink is involved no one can really take anyones word for the truth as both have clouded accounts, it would of also been brought up exactly why was he in a hotel room with another women and drunk anyway?
I think that the best thing you can do now is to let this go, the plea bargain was the best bet all round.It could of been disatrous for your husband if it had of gone to court, i cannot see any defence at all for him as he was there, and was drunk.I also think it is decent of the women to call back and have the courage to say she wasnt actually raped.
Men also need to be aware that they can easily be put into this situation , women can make false accusations as i have heard of this before, but often men accnot prove what went on one way or another because they were drunk, in the eyes of the law cannot have a defence either as being drunk often means a clouded or inaccurate version of events. I hope that you can both move on from this, and put the past behinind you.
Snoopy

Not quite, but I fixed it, and I&#39;ll let you off&#33;

Hi Snoopy

I don&#39;t think I have made myself clear. For the record, my husband did not accept a plea bargain, and it did go to court. Ironically, the judge said that had my husband pleaded guilty he would not have received a custodial sentence, which sounds mad to me. He chose to fight to preserve his name, and ended up in prison. He was in her hotel room because she invited him there. She admitted this in court. She admitted she drank 8 bottles of beer, a bottle of wine and 5 or 6 tequilas.

You mention that it would have been difficult for him to "prove his innocence". As a defendant, he does not have to prove his innocence&#33; it is down to the prosecution to prove his guilt&#33; Unfortunately, he had no defence other than his own, truthful, version of events. This is why I find it so hard to accept the situation - the law was weighted against him from the word go. As Raincloud said earlier in this thread, the CPS took the view that someone was lying. Given the seriousness of the allegation, they felt obliged to press the case forward. I have always been under the impression that one person&#39;s word against another is not enough to convict beyond all reasonable doubt, but this is no longer the case.

when he was summing up at sentencing, the judge said he had no doubt that my husband is a hardworking, dedicated family man, but that as he had pleaded not guilty, he had no choice but to return a custodial sentence. The judge then requested a closed court, and what he said was this:

that the "victim" had behaved unwisely by undressing and getting into bed while my husband was in the toilet of her hotel room. That the amount of alcohol consumed by both was enough to give "reasonable doubt" as to who was telling the truth, and that he did not believe the jury had fully considered all the evidence. However, he had to accept the jury&#39;s decision.

I am currently working on finding grounds for appeal. His accuser is now telling his ex-colleagues that he was convicted of rape, that he had been accused of it before, and that it was her testimony that "put him away". These are all lies. She is also claiming that his sentence is 5 times what it actually is. Why is the truth not good enough for her? Why is Indecent Assault not serious enough, especially as by her own admission, she was not raped? Please tell me, in your experience dealing with survivors, is this normal behaviour for a victim?

I only object to the word disturbed here, as you said something clearly happened, but the word disturbed is inappropraite for a human being that has survived an awful truama, it may not of been your husband who attacked her, as you say the description of the attacker does not fit your husband, but someone obviuosly has attacked her, so disturbed is not a kind word to use here.
Rapists are the disturbed ones, not the survivors (note not the word victim used)
I also want to make a note of the fact that you said she reported the attack many years after it &#39;alledgedly happened&#39;

This is every survivors right, many people are able to come forward many years after a crime took place and indeed i fully suport the notion that no matter how much time as elapsed if thye feel the need to go to the police thye should do so.
Im not talking about just rape im talking about any crime.
Sometimes it takes many years to gather the strength to report it.Sometimes Post Traumatic Stress Disorder doesnt kick in until many years later, which then encourages a survivor of crime to report it.No one wants to think about injustices against them, and it is also often the case that survivors try to carry on as normal after a crime, for many years until it becomes too much.

I want to point out that many guilty people have been caught due to survivors of crime reporting it many years later, it has also turned out that in reporting a crime as serious as rape, the defendant has also gone on and raped other people in the time that has lapsed.

I encourage anyone who wishes to report any serious crime against them to report it no matter how much time as lapsed, there is many cases that defendants have not been caught because of lack of evidence despite most people in the law knwoing that they are guilty, it is not until another person comes forward to report the same person for the same crime, that a conviction can take place (or at least a case going to court)


This message has been replied to because i do not want anyone to be discouraged from reporting a rape because of a time lapse.Rape is a serious crime, and time cannot eliminate that.

Snoopy

Hello everyone,

I have been away for a week and slowly catching up on recent postings.

I think I can clarify a few things, firstly though I think I should explain what &#39;Hearsay&#39; is for the benefit of Snoopy.

You are quite right that Hearsay evidence is not admissable (there are a few exceptions) however the evidence of an alleged victim is not Hearsay, they are the person giving DIRECT evidence of an alleged event.
Hearsay is the evidence of a person who has no direct knowledge of the event, thus if I tell you that my attacker was 6 feet tall and wore a black baseball cap, your evidence would be Hearsay and not admissable. The accuser of Saffron&#39;s husband was giving direct evidence, it was not Hearsay.

Saffron is also quite right that the protection of a defendant has been seriously eroded is very true.

About 10 years ago, the warning that had to be given to a jury in uncorroborated allegations of sexual assault was removed. Prior to then the judge had to warn the jury that it would be dangerous to convict without corroboration.

More recently, questioning of the complainant about his/her sexual history, has been limited to special circumstances. This is not a bad law in fact but has led to some serious miscarriages in the USA where trial judges have more rigorously ruled out any questioning of the complainant&#39;s past. Diana has looked into the frequency of when it is allowed here in the UK, probably more frequently. The trial judge has to consider whether the question goes to a relevant issue, if it doesn&#39;t he will rule against it.

Now we have the proposal that the onus would be on the defendant to prove that consent was given, not that he/she believed it was given. Such a law would go against the fundamental structure of our Criminal Justice System, the burden of proof would be shifted from the Prosecution to the Defence.

It is perfectly true that sexual assault, one of the gravest of crimes, requires an absurdly low evidential burden. As I and Saffron found out, the word of one menacing fantasist is sufficient.

Can you imagine going to the Police and complaining that you have been beaten with a baseball bat. There is no way in this world that without supporting evidence the police would charge GBH. Yet they would charge Rape on the same uncorroborated evidence.

Everybody in the Criminal Justice System knows full well that sexual assault is the easiest of offences to allege and the hardest to disprove.

Snoopy has given some practical suggestions on how to discourage and prevent Rape. I do not disagree with anything said but would equally want to put my back into discouraging false allegations. The possibility of comparable sentencing would certainly go some way as opposed to the derisory sentences we have seen handed down so far.

But on the issue she raises I read a newspaper article recently ( forget which one).
The header was &#39; Drink, the rapists best friend&#39;. The subject matter was the number of complainants who were found to be under the influence of drink at the time of the offence, something like 80%. Maybe some hard-hitting public information warnings may prevent some women placing themselves in positions of vulnerability.

Ashley

Women should not fear that they are going to be vulnerable if they have a drink in the first place. In a recent crime survey in my local area, 80% of women said that they would not go outside after dark alone.Women also stated that they feared they may be attacked if wearing &#39;provocative clothing&#39; or if they got drunk in a public place, despite being out with friends.
The point is even if a women is wearing a bin bag it does not give a man the right to rape them.
Even if a women is drunk, it does not give the man the right to rape them.
Even if the women is walking the street at night on her own.It does not give the man the right to rape them.
The whole point of many campaigns is to say that women should be able to do what they want,wear what thye want, and go where they want without fear of attack.It is the fear of rape that prevents many women doing what they would like to do.
You are right in saying that campaigns would be a good idea to stop women putting themselves in vulnerable positions, but its the rapists that should not be out looking for vulnerable women in the first place.

Snoopy <_<

A review in 2002 revealed

A man would not be able to claim honest belief if he had made himself drunk, failed to take all reasonable steps to ascertain that the woman was freely agreeing, or was reckless as to whether she was consenting, The white paper proposes that "where the prosecution can prove that there is reasonable room for uncertainty about the complainant&#39;s consent and that the defendant did not take reasonable action in the circumstances to ensure that the complainant was willing to take part in the sexual acts", rape will be proved.

On the issue of consent, people will be considered most unlikely to have willingly agreed to sex if they were unconscious, drugged, abducted, subject to threats or fear of serious harm, or incapable of giving consent because of learning disability or mental disorder.

Police believe that fewer than 7 per cent of rapes are reported to them. Of those reports - 8,400 last year - fewer than one in 10 will result in conviction. Such figures explain why so many women have lost confidence in the present law.
Government plans to reform the rape laws, which we report today, are long overdue and welcome. First, they acknowledge that most rapes are committed by acquaintances rather than unknown assailants. Second, they apply common sense to a murky area of the law which has made it hard to secure convictions. The proposals will restrict the defence of &#39;honest belief&#39;, which currently enables a defendant to claim he mistakenly thought there was consent to sex even if there is evidence to the contrary.

These plans will not lead to couples needing to sign contracts before having sex, as has been claimed. They will, however, require a cultural shift in the popular perception of &#39;date rape&#39; as somehow not a real crime. And we welcome the drafters&#39; intention to make it difficult for the defence to raise a victim&#39;s sexual history in court. This alone will remove a major obstacle to raped women, and men, pressing rape charges.

The success of the proposed reforms will ultimately be measured by their ability to secure convictions for a crime that remains a shaming, secret, life-scarring experience for tens of thousands of victims each year.

Snoopy