Deborah Orr: What about all the women who have been raped?

'We see the law concerning itself more with protecting men from false accusations than seeking justice for women who've been raped'
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The Independent Online

Yesterday, finally, five law lords delivered their judgement in the case of "Y". "Y" is the 26-year-old student whose claim that the new protection afforded to women in rape trials under the 1999 Youth Justice and Criminal Evidence Act infringed his right to a fair trial. "Y" wished to present evidence that the woman who alleges rape against him had agreed to sex with him the week before. His argument is that this evidence is relevant to his defence, and that the new law stops him from defending himself. The law lords have decided, thankfully, that it does not.

The law, which only came into force last December, seeks to protect women from having their sexual history related in the courts during cross-examination. In no other crime is an alleged victim treated in this way. It is rather like asking the victim of a burglary if she had been "asking for it" when she forgot to lock the back door the year before. That is why women's groups have been campaigning for years to stop the practice. It amounts to nothing less than institutionalised humiliation in court, and it does sway juries.

The relating of past sexual histories is certainly prejudicial, and is, to at least some degree, a contributory factor in the appallingly low conviction rate for rape accusations. After decades of campaigning, it was a real achievement to have this protection enshrined in law. The challenge by "Y" came after it had been in force for only a week. His own trial, and the trials of quite a number of other rape cases have ground to a halt while the issue is resolved.

But the baffling thing is why this appeal was allowed to run its course in the first place. The controversy started when an Old Bailey judge raised doubts about whether the change in the law would allow defendants a fair trial. Judge Simon Goldstein postponed the case and discharged the jury after "Y" claimed that he'd had a previous sexual history with the defendant, and that the existence of the law harmed his defence because he could not cite this previous relationship as evidence.

But that was not true, because the new law forbids the relating of sexual history "unless it is absolutely relevant to the case". Surely it is obvious that a previous history with the victim is possibly relevant to the assumption of consent, while previous history otherwise is most definitely not.

This is pretty much exactly what the law lords have ruled, stipulating that to avoid compromising any defendant's right to a fair trial under human rights laws, relevant evidence and cross-examination about the complainant's previous sexual relationship with the accused should be admitted. There will be no rewriting of the new law, because it is judged as accommodating such an eventuality as it stands.

Instead, a small step forward in the struggle to make rape trials more just has been held up, along with the trials of quite a number of people. Judges continue to seem unable to be sensible about rape trials. In recent weeks, as well as this débâcle, we've had Lord Abernethy, a Scottish judge, throwing out another case because the alleged victim was not citing force or the threat of force, which the Judge in his wisdom declared was an "essential" component of rape.

Again and again we see the law concerning itself much more with protecting men from false accusations than seeking justice for women who have been raped. "Y" may believe that because he has once or twice received consent from a woman to sex, that he somehow retains the right to have sex with her forever and ever, but most men would not agree with him. The vast majority of men understand what rape is, just like the vast majority of women understand that it simply isn't on to accuse someone falsely of rape.

Still though, the adversarial atmosphere goes on. A significant minority of women appear to believe that "all men are rapists". A large minority of very angry men appear to believe that any change to the rape laws will release floods of vengeful women to fit them up for a life sentence.

Where do these horribly distrustful stereotypes come from? They come from the rape figures, of course. In 1999 more than 8,000 rapes were reported to the police ­ treble the figure of the mid-Eighties. Studies suggest that this is still the tip of the iceberg, and that 75 per cent of women do not report their rapes. Only one in 10 of cases reported to the police go to trial, and of those, few end in conviction.

From these figures, you could draw the conclusion that a huge amount of men raped women, or that a huge amount of women falsely accused men of rape. My theory is a different one: that actually, a much smaller number of men rape than the figures would suggest, and that they do not fear the law, because they use the fears stoked in men by their own behaviour to make sure that the law continues to protect them.

Take Adam Carruthers, for example ­ the 38-year-old policeman who was found guilty earlier this week of raping a housewife and a former academic in their homes. It now turns out that as many as 20 more women had made complaints about him over the years, ranging from indecent exposure to rape. One woman was raped by him several times, and attempted suicide after ongoing abuse from him. It also emerged that in 1998, the Crown Office had decided not to proceed with a case against Carruthers, following an inquiry by the Dumfries and Galloway police force, for which the father-of-two worked.

Or take the Channel 4 documentary, screened in the mid-Nineties, and titled Getting Away With Rape. The film-makers studied rape trials involving the rape of victims by people they had a passing acquaintance with, and found, in that time, one man who stood trial for rape on seven different occasions and was acquitted by each jury, and another man who pulled the same trick five times.

Or Richard Baker, the disc jockey who was convicted of four rapes, two indecent assaults and one attempted assault, but who, after his trial, was accused by many more young women who had met him at the holiday resort where he preyed on his victims

Or Nicholas Edwards, who would have got away with what was at least his sixth rape, had an appeal to the Lords not made it permissible for five other women, who had made allegations against him in the past without conviction, to give evidence.

All men are by no means rapists, but some of the men who do rape, rape again and again, protected by the fact that their crime, as long as there were no witnesses, will be considered as one woman's word against theirs.

Logging failed rape accusations against men could really help in the apprehension of dangerous criminals. Suggest such a register, though, and a surprising amount of otherwise sensible people will suggest that gangs of unscrupulous women could conspire together to get innocent men put behind bars. Meanwhile, judges have called instead for a register of those who falsely claim rape. Being raped, it appears, is much less traumatic than being accused of it ­ even when you're guilty as hell.