Law: Asking for fairness

Courts should recognise that rape victims are not there to be tried.
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The Independent Culture
I expected the prosecutor to be on my side, but he didn't even introduce himself to me before the case," recalls Jessica, bitterly disillusioned by the criminal justice system. After she was raped by her ex-husband, her fear that he might assault her again gave her the courage to see her complaint through to trial - only then to see him acquitted.

Jessica, 36, who has two small children, has nothing but praise for the way the police dealt with the investigation and the help offered by her local rape crisis centre - all of which made the court process even more of a let-down.

"I was shocked and dismayed that when the defence started telling lies about me, and his friends were called to give character evidence for him and against me, suggesting that I was a slag, the prosecutor didn't leap to his feet and challenge what was being said. "It went on in this vein right up to the closing speeches. The defence lawyer, who was very clever, suggested that I had asked for it, suggested that I liked a bit of rough. The prosecutor didn't disabuse the jury of this even during his closing speech.

"What was really surprising was that though he was on trial, I was the one who was being condemned. I asked myself after the acquittal whether, if I had had someone who knew the story, who had talked it through with me beforehand and who knew what the defence barrister's tactics were likely to be, there would have been a verdict of guilty."

The role of the prosecution is one of the factors being considered in a Home Office study into why the conviction rate for rape has dropped dramatically - from 24 per cent in 1985 to 10 per cent in1996 - despite a threefold increase in the number of rapes recorded by the police over the same period.

David Magson, assistant chief crown prosecutor for the Crown Prosecution Service (CPS) in Yorkshire, has been liaising with the Research Centre on Violence, Abuse and Gender Relations at Leeds Metropolitan University to set up a pilot course to train prosecutors in such cases. He says that the drop in the conviction rate has to be seen in the context of the number of cases now coming to trial which would not even have been investigated 20 years ago.

"You cannot necessarily take the fact that there are now more acquittals as being a failure of the whole system. But I think you can say that there is a greater number of acquittals in rape cases than in other sorts of cases and, yes, we need to look at that," he concedes.

He adds that rape and sexual assault cases are supervised by CPS lawyers with at least 10 years' experience, and cases are presented in court by independent counsel.

"Part of the course will be aimed at increasing awareness of the mainly male counsel so that they do not make the same assumptions that you sometimes hear judges making," explains Magson.

Another aim of the course is to ensure that prosecutors robustly challenge attempts by the defence to cross-examine complainants on their past sexual history. Magson says: "That is quite clearly a duty of the prosecuting counsel. One of the purposes of this exercise is to educate prosecutors so that they are fully aware of all the relevant legislation and decided case law that go towards protecting the victim."

That will include proposals under the Youth Justice and Criminal Evidence Bill that evidence of or questioning about a complainant's sexual behaviour will not be admissible as evidence of whether he or she consented to the offence, unless a judge decides that it relates to a specific instance of fact within 24 hours of the alleged assault, and that its main purpose is not to impugn the witness's character.

The court process has been made even more harrowing for some rape victims who have had to face being cross examined in court by their alleged attacker. Ralston Edwards was jailed for life after he cross-examined his victim for six days, a case which has led to a change in the law to prevent alleged rapists questioning victims.

Concern over the effectiveness of some rape prosecutions prompted the research centre to set up its pilot course offering prosecutors expert training in dealing with the special circumstances that surround rape and sexual assault cases.

The course, which is due to start this spring in Leeds, involves three two-hour seminars covering latest research, changes in legislation, trial preparation, dealing with witnesses, cross-examination techniques and the Appeal Court process. Julie Bindel, assistant director of the research centre, says that the course, which is being designed with the close co- operation of the CPS in Yorkshire, will be evaluated to show whether it results in more convictions. Depending on the results, there are hopes that it may eventually be funded nationally by the Home Office.

"We are not suggesting that prosecutors do not know how to do their job. What we want to do is give them the latest thinking on forensic evidence, courtroom techniques and current research so that they can prosecute these cases more effectively.

"Prosecutors are the people who have to educate juries about rape myths - that there are somehow `deserving' and `undeserving' victims, that marital or acquaintance rape is not as damaging as rape by a stranger - and that means being alive to the influence of their own prejudices," says Bindel.

Speakers on the course include Fiona Mason, forensic psychiatrist at Broadmoor, Jennifer Temkin, professor of law at Sussex University, Helen Grindrod QC, an experienced prosecutor, and barrister Vera Baird, author of Rape in Court, a critique of rape trials, published last year.

Vera Baird says that the Bill will also allow evidence regarding sexual behaviour to be admitted to rebut evidence called by the prosecution about the complainant, so it is essential that prosecutors are trained to avoid that happening. She says: "It is no more to the Crown's advantage to show that the witness is a model of virtue than it is to the defence to show that she is a tart. They are two sides of the same error."