In the Media

Rape trial rules flouted by 'devious' barristers

PUBLISHED June 21, 2006

DEVIOUS barristers and ignorant judges are frustrating the Government?s attempt to stop details of a woman?s sexual past being disclosed in rape trials, according to a report published yesterday.

Rape victims continue to believe that having a number of sexual partners gives them a ?reputation? and implies that they are less worthy of belief by the authorities. 
Barristers who use devious tactics to get round the law are being aided by judges who are unaware of the crown court rules and have little knowledge of the legislation that was introduced in 1999.

The new rules have had no ?discernible effect? on the number of allegations of rape ending in a successful prosecution as the conviction rate has continued to fall, according to the report published by the Home Office.

It found that the rules that aim to restrict defence barristers from depicting rape victims as promiscuous have been ?evaded, circumvented and resisted?.

It said: ?Complainants regarded the use of sexual history evidence in trials as unjust and an invasion of privacy.

?Findings from case files, trial observations and interviews raise the possibility that both prosecution and defence share stereotypical assumptions about ?appropriate? female behaviour and that these continue to play a part when issues of credibility are addressed in rape cases.?

Defence lawyers still used evidence and ?rhetorical devices? to impugn the character of rape victims and make their testimony less credible. They were often unchallenged by the prosecution or judge.

?It should not be surprising that the legislation has been evaded, circumvented and resisted, and that the prosecution is reluctant to pursue cases which require grappling with these complex and contested areas,? the report said.Section 41 of the Youth Justice and Criminal Evidence Act 1999 was intended to allow questions about a sexual past only if there was good reason.

The report recommends a series of amendments to make it more effective.

While the law has resulted in a decline in lengthy and humiliating questioning of a victim?s sexual past, the report found that defence barristers now use more subtle and ?devious? tactics to invoke stereotypical notions of acceptable femininity. Some defence lawyers were found to make applications to allow evidence of a woman?s sexual past just before crossexamination in an attempt to undermine her performance and disrupt the evidence.

Almost a quarter of the 17 judges questioned for the study said they did not believe that the law was necessary, the report added.

A similar number of judges regretted the lack of confidence in the judiciary that had led the Government to bring in the law, and several judges thought that the measure was part of Labour?s strategy to ?control the judges?.

The report said that sexual history evidence was introduced in more than three quarters of trials, often outside the scope of Section 41.

In one case a defence barrister asked a defendant if there had been blood on the bedsheets after he had sex with a woman who made a rape complaint against him. The report said: ?This was clearly intended to suggest that C was not a virgin when she first had sex with D.? The study recommended a number of changes to the law, including drawing up a definition of sexual behaviour covered by the rules, applying it to the prosecution as well as the defence and adaptations to exceptions. 

A Home Office spokesman said: ?Clearly, it is not working as well as we would hope and we are taking this information on board.? The report?s findings would be considered as part of the Government?s current consultation on improving the law on rape.

The research included looking at 170 case files, observing 31 trials and holding interviews with judges, barristers and prosecution service lawyers.

  • Rape usually committed by strangers
  • Real rape happens at night, outside and involves a weapon
  • There are always injuries to the woman who is the victim of a rape
  • Anyone facing rape or being raped will resist their attacker
  • Women ?ask for it? by their dress, behaviour, or taking risks
  • All victims react in exactly the same way after they have been attacked and raped
  • A rape victim will report the attack promptly
  • Mainly committed by men known to the victim
  • Rape happens at any time, most commonly indoors, involving coercion
  • Minority of reported rapes involve serious external or internal injuries
  • Many women resist, but many freeze through fear or shock
    Most victims of rape know and trust their attackers
  • There are a range of responses, from extremely distressed through to quiet and controlled
  • Majority of rapes are not reported at all