Practicalities, Rape Myths and 'Rationality':
An Exploration of Court Responses to Rape
Olivia Smith [email protected]
Department of Social and Policy Sciences
Research funded by the Economic and Social Research Council
Presentation Overview:
• What the research is about
• How the research was carried out
• What was found:
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Routine delays
Challenges with special measures
Focus on rationality
Manipulation and a focus on winning at any cost
• What might help:
• Some short-term changes…
• Longer term discussions...
The Research: What and Why?
Years of evidence about:
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•
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Low conviction rates
Inappropriate questioning
Sexual history evidence
Rape myths
Policy has attempted change
• Positive effects BUT also seems
to fall short of full effectiveness
• Important to research why this
might be
‘Francis Andrade’ image from guardian.co.uk; ‘Judge Rudland’ image from topfoto.co.uk; ‘Baroness Stern’ image from falseallegations.wordpress.com; ‘Stern Review’
image from news.bbc.co.uk
How the Research was Carried Out
• Observation methodology
– Fill a gap in the literature (alternative to interviews)
– 10 months (2012) + 3 month pilot (2010)
– Noted quotes from trial and other events, e.g. what
happened in the public gallery
• 18(+6) adult rape and sexual assault trials at a large
Crown Court in the South of England
– Also 3 non-adult cases in pilot study;
interviews, and non-sexual violence
observations
– Provided very rich information
Gavel image from Waseda University International Community Centre: http://www.waseda.jp/icc/EVENTS_E/ComingEvents_E/2008-2/court_E.html
The Findings:
• Manipulation of evidence
• Routine use of irrelevant stereotypes and inappropriate
questions
• Legal personnel appeared aware of the detrimental effect
on evidence clarity- focus on winning, not finding out
what happened
• Manipulation was disproportionately about
survivors because of interpretations of Fair Trial
and defendants’ rights
• Routine delays, challenges for special measures and a
focus on ‘rationality’…
Routine Delays
Extensive delays in all trials:
– Just under 6 hours average delay per trial
– 84 percent delays occurred before survivors’
evidence
Created unnecessary stress:
– “The longer we delay, the more upset she gets so if we could
just make a start...” (Usher, T15)
Main causes of delay:
– Problematic special measures
– Late arising evidence (lack of pre-trial contact?)
– ‘Black hole’ of paperwork
‘Delayed stamp’ image from www.ibanet.org
Example of Late Arising Evidence
– Judge: “...It would have been better if it had
all been sorted before today. Not, I’m not
giving any criticism”
Prosecution: [Yes, some of it is because of
comments arising today when I went to
introduce myself ](T23)
Example of ‘Black Hole’ of Paperwork
– Defence2: “Unexpectedly for us, we’ve found
out that the next witness to be called is not
[S2], but rather [S3]”
Defence1: “[We can’t cross-examine yet
because] there’s a body of unused evidence
that still hasn’t been seen” (T7)
Where direct quote was unavailable, paraphrased comments are in ‘[...]’
‘Paperwork’ image from worryaday.blogspot.com
Positive Change: Attempts to Alleviate Delay
Send away when possible
– “I’ve heard that you’re finding this process difficult and I
understand that. Um, you don’t have to stay in that room and
watch any more at the moment. In fact [you have until 2pm
tomorrow] and that means you don’t have to sit there in that
room feeling uncomfortable” (Judge, T10)
Learning lessons
– T9 Judge ordered enquiry: “By Thursday, the, um, court
should have a letter provided by the CPS explaining [what
happened]... Something seriously did go wrong here, I’m
not trying to rub anyone’s nose in it, things do wrong, but if
an individual is at fault here then it’s important that they
know”
Challenges for Special Measures
Technical faults caused frequent delays:
– “This must come as no surprise, these problems come in
pretty much every trial that uses them”(Prosecution, T12)
– The barristers comment that they don’t remember a trial
using special measures that didn’t go wrong (Field notes, T16)
Delays caused unnecessary stress:
– “If designing something to upset this witness, you couldn’t do a better
job [than delays from special measures]” (Defence, T15)
Positives- Investment to prevent delays:
– “I’ve made a terrible fuss about the machinery in this court [and will be
meeting to secure investment in new facilities] to avoid some of the
delays we’ve experienced” (Judge, T7)
– “I haven’t had one of those work yet, I have to say... the synchronisation
[with witness room] has been a problem” (Clerk, T16)
More Challenges for Special Measures
Poor sound quality:
– “Despite our best efforts, this witness’
evidence is not intelligible using just the
video...” (Prosecution, T7)
– “[The video link has a ‘skype effect’ where
there’s a delay], which is something we’re
just going to have to bear in mind [for crossexamination]” (Judge, T15)
Intimidation despite screens:
– In the previous trial, Survivor used screens
instead of video link but Defendant shouted
at her to ‘tell the truth’ across the
courtroom. (Field notes, T15)
‘Video link’ image is from CPS.gov.uk
‘Screens’ image is from WitnessesinScotland.com
A Focus on ‘Rational’ Behaviour
Barristers measured evidence against ‘rational’ norms
– “How come you came to be outside the club without her then?… Why didn’t you
wait for her outside the club?… If you were supposed to go to her house, how
was that going to work?” (T4)
This disproportionately affected survivors
• Burden of Proof: “There is no forensic evidence, there is no incriminating text
message, there is no supporting witness; so you have to decide based on the
women.” (Defence2, T7)
• ‘Dichotomy of honest/liar’: “Somebody is lying and somebody is telling the
truth… You’re going to have to decide what you think of her and, more
importantly, what you think of her evidence.” (Prosecution, T23)
Rape myths formed part of the ‘rational’ ideals against which evidence
was judged- may explain their persistence despite training?
– Defence: [How long was it between that and telling the police]?
Survivor: “Because I didn’t have much confidence”
Defence: “Now that’s a ‘why’ answer, I’m asking a ‘how long’ question”
(Field notes, T22)
Resistance to ‘Rational’ Behaviour
Some judges and prosecution barristers tried to challenge
stereotypes and the focus on rationality
–“It’s going to be brought up... but don’t give in to myths and
stereotypes about people in that domestic context. You do not
know how victims of rape and domestic abuse behave unless,
sadly, you have some knowledge of it” (Prosecution, T15)
BUT this was easily undermined in subsequent defence
comments
–“Of course I agree, there are myths and stereotypes... But [...],
we should add, shouldn’t we, if we’re talking about what
experience shows, is that not all allegations of rape by young
girls are true... Uncomfortable fact, but one we have to deal
with...” (Defence, T9)
Preliminary Recommendations
Tackling problems with delays:
• Wasted Cost Orders- incentive to be ‘trial ready’
Tackling problems with special measures:
• Allow survivors to watch their pre-recorded interview
separately
• Let survivors use separate corridors (and empty the
public gallery)
Tackling problems with questioning:
• Pre-trial preparation for witnesses
• Survivors’ lawyers
Conclusions
• There were some positive findings to celebrate!
• However there are also persistent problems
• Some of which are relate to the
context of the CJS e.g.
‘Rationalist Tradition’
• While short-term solutions are
important, they must not distract
us from addressing longer term
issues
‘Lady Justice’ image is from Cyprus Law: www.thecypruslawyer.com