Rape in the Criminal Justice System in the UK Week 19

Useful new reading Dyer, C. (2008) ‘Judges admit they get round law designed to protect women in rape trials’ Guardian 1 April You can also search the Guardian web site archives for other recent articles about rape law. In the reading list the entry for J. Temkin, Sexual Assault and the Justice Gap should be dated 2008 and should include as the second author B. Krahe. See also Brown, J.M. et al (2007) ‘Characteristics associated with rape attrition and the role played by….’ Psychology, Crime & Law 13 (4):

Other useful journalistic articles Radnofsky, Louise (2007) ‘Government unveils rape law reforms’ Guardian 28 November Hill, A. (2005) ‘Scandal of justice revolution that betrayed rape victims Observer, 1 May. Sawyer, M. (2005) ’50,000 rapes each year but only 600 rapists sent to jail’ Observer 31 July. Dwyer, C (2005) ‘Use of expert witnesses urged to boost rape convictions’ Guardian (17 October). Dwyer, C. and S. Morris (2005) ‘Rape case student “conscious”’ Guardian 25 November ,00.html ,00.html Anonymous (2003) The Rape that Never Ends’ Guardian 29 November Williams, Zoe (2002) ‘Now yes means no’ Guardian 29 Oct.

Why is the treatment of rape in the criminal justice system a problem? Sometimes said that rape is easy to claim and difficult to disprove. But the reverse is the case. In the vast majority of cases in which women who register a complaint to police the alleged perpetrator is not convicted Traumatic for complainant. Low conviction rate, suspicion she may be lying, criteria used to judge a case, all make for a very testing, nightmarish quality to the experience for woman. Over past few years changes in law, leading to Sexual Offences Act 2003, to make it easier to convict, seems to be having little effect.

Underlying issues Weaknesses in ‘outdated’ law or as compared with law in other jurisdictions. Ways that wider attitudes to rape inevitably shape the legal process and the decisions of key actors, including juries, including myths about --what rape really consists of (‘real rape’) as against ‘misunderstandings’ -- understandings of consent to sex (implicit or explicit -- relation between understandings of rape and consent and understandings of male and female sexuality, implications of changing sexual mores

Outline Conviction rate Legal definitions of rape Processing of rape –Trial (judges, complainant, defendant, attorneys, juries) –Police investigation –Complaint process

Convictions for rape Reporting of rapes to the police going up, convictions for rape going down. Temkin (2002:278-9) reports that for England and Wales number of rapes reported to the police increased threefold between 1983 and Kelly (2005) In 2002 proportion of reported rapes leading to a conviction was 5.6% (Kelly 2005), down from 30% in 1980 (Guardian 7 October 1999). Data on how many cases come to trial and how many of these lead to a conviction less frequently cited. Guardian article (Sawyer 2005) says that in 2002 only 14% of cases came to trial- attrition rate very high. Then successful prosecution at trial stage is only about a third. In 2003, out of 1649 cases that reached court, 629 were successfully prosecuted. Figures like these have led to a ‘legitimation deficit (Phoenix and Oerton 2005), I.e.gap or deficit between what state promises (to protect people from crime) and what actually happens, bringing the law into disrepute. Led to the Sexual Offences Act 2003, which came into effect in GET YOUR OWN FIGURES and use to good effect! In essays page numbers (for paper publications) are required for figures as well as direct quotations.

Three aspects of the definition of rape (see especially Temkin 2005 and later sources for changes to law in 2003) Until 1994, penetration of vagina by penis. Gender specific crime. Criminal Justice and Public Order Act of 1994 includes penetration by the penis of either vagina or anus, of either men or women, thus allowing for rape of males for the first time (previously qualified as sexual assault). Section 1 (1) of Sexual Offences Act 2003 widens the definition of rape to include penile penetration (vaginal, anal, or oral) of another person. Penetration by objects is not named as rape but can command equally strong penalties.

Classed constructions of the rape victim

Until relatively recently legal definition of rape included only penile penetration outside marriage, sex without consent in marriage being exempt.

Third aspect of definition of rape is that penetration took place without the victim’s consent. The alleged perpetrator has to have a ‘guilty intent’, i.e. know that the victim did not consent, or be ‘reckless’ as to whether she consented (‘couldn’t care less’) Before 1976 law specified indications that consent not given. Morgan case- defendant’s belief must be sincere. Olugboboja case in 1981 gave right to jury to decide criteria for consent.

’Many men like to believe that women are always available; it's the law's job to disabuse them of this justification of a violent crime.' (Guardian 2 April, 2001) Law now specifies that women has to have had the freedom and capacity to consent but it doesn’t specify what the defendant has to do to ascertain the consent.

Sexual Offences Act Act specifies that defendant’s belief that the complainant consented must be ‘reasonable’ taking into account all the circumstances. Evidence that the woman was unconscious due to ingestion of drink or drugs, will be taken as evidence that defendant’s belief that she consented was not reasonable. Temkin (2005) fears this can be taken and will be taken, as ‘an invitation to the jury to scrutinize the complainant’s behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent (p.9) Penalties for rape also increased, but this may make it more difficult to convict. Jury needs to feel that their certainty that he knew she did not consent must go beyond a reasonable doubt.

The processing of rape: (1)the trial

The judge Smart (1989) Feminism and the Power of Law Gives examples of judge’s summing up statement. Very rarely articulated openly any more.

Judges also take the decision as to whether to admit the complainant’s sexual history or medical history.

Complainant Person in law who reported the rape. Many commentators say that for the complainant appearing in a rape trial is like a second rape. Because the woman seems to be on trial, her behavior is examined rather than the defendant’s. Does the emphasis on her consent makes this inevitable?

Smart on consent Women’s rejection of (hetero)sex in our phallocentric culture is disqualified, or at least not seen sympathetically. Submission may be equated with consent. Agreement to intimacy may be taken as consent to intercourse.

The trial as a pornographic spectacle (Smart 1989) Historical precedents (Clark 1987)

Has this changed? Testimony quoted in an appeal judgement (Australia) ‘Then I put my arm around her and we kissed again and hugged each other and then we were like stroking each other’s upper bodies-- like we were kissing…. Then like (the complainant) when stroking me she lifted my shirt up a bit and then we were still kissing….(Mooney2006:52)

Attorneys Defense attorney plays a major role in rehearsing the assumptions of phallocentric culture and prosecution may fail to challenge.

But does the prosecutor challenge these constructs either? Usually the prosecutor tries to show that she was violated. But this works better in some cases than others. It also recirculates the constructions of women as recipients of sexual approaches, rather than active agents.

Defendant Does not have to testify, and this can’t be held against him. Means that his sexual attitudes and history not necessarily every examined. Judges can now allow jury to know that defendant has been tried for rape before, so long as previous cases were similar.

Jury

Processing of case before trial Improvement to training of police, creation of special units for examining complainants. (Kelly 2005 and articles by Temkin)

Woman complainant Women not exempt from wider ideologies, especially the expectation that its their responsibility to keep men’s sexuality im check as well as their own- because they don’t need it in the same way.

Are the difference in how we understand male and female heterosexualities still relevant? Act seeks to degender the law (refers to persons, allows women to be accused of rape (I.e. abetting a rape) which may ‘neutralise gender’ as the key dimension of rape. But does this modernisation simply ignore the centrality of gender to rape and the rape trial rather than confront it? (Phoenix and Oerton 2006)

Conclusion