Evidential Issues in Rape Cases

[major_clanger]

In a locked post a friend of mine expressed her deep distress at this story:

BBC: Men cleared as rape woman's group sex fantasy revealed

I posted some comments and another friend asked me to repost them so as to give further opportunity for discussion, so here they are.


As someone has noted, what has happened here is that part-way through the trial the Crown Prosecution Service has decided that in light of new evidence there was no way that a jury would convict, and so they decided to drop the case.

The reason the judge told the jury to give a 'not guilty' verdict is that once the accused has been arraigned (i.e. has had the charge read and given a plea) then there has to be a verdict to end the case.

There are several issues coming out of this. One is that the CPS clearly felt the jury wouldn't convict. As people have said, this says a lot about juries. Our jury system isn't like the one in the US, where both sides spend weeks questioning and objecting to potential jurors. Here, you get the next 12 people on the waiting list and unless one of them is, say, actually related to a witness, you can't really object. If you get a jury who look like Daily Mail readers then you have a problem. In fact, seeing as how a minimum majority verdict is 10-2, if you have three jurors who look like they don't like the alleged victim then you're just not going to get a conviction.

My concern, having studied criminal legal practice, is why this evidence came in so late. It takes six months on average to go from initial charge to appearing in Crown Court, and in that time a lot of things are meant to happen including both sides disclosing the evidence they are planning to use. So where did this transcript of MSN chat sessions come from and why didn't the Prosecution find out about it until after the case had started?

Also, the Prosecution will presumably have objected to this evidence been admissible. Following some very nasty cross-examinations of victims in the past there are meant to be safeguards that limit the extent to which evidence of an alleged victim's sexual history can be used. But (for technical reasons) I can see why, if the chat sessions involved any of the defendants, then they would probably be so relevant to the case that they would be admitted.

And this may be another reason why the case was dropped. If these chat sessions were going to become part of the evidence then the Defence would be bound to cross-examine the alleged victim about them. I can well imagine that either she didn't want to go through with that, or that the Prosecution did not want to subject her to it, especially if they thought the jury would be unlikely to convict anyway.

It's a nasty, horrible mess. But most of the ways I (and other people in the legal profession) can think of that might help fix it would involve saying that, for sexual offences, you set aside some of the key legal safeguards against wrongful conviction that we have developed over hundreds of years. For instance, one obvious option would be to do away with juries in rape cases on the basis that there is lots of evidence that they just do not convict rapists- but just look at the outcry over the current no-jury case. Or we could put the burden of proof on the defendant to show that the victim did consent to sex (in some cases, as a result of changes in the law, this is already what happens) but this goes against the core principle of 'innocent until proven guilty'.

Someone then asked why there should be a presumption that the victim should be disbelieved. My explanation was as follows:

EDIT: A couple of commenters took issue with the way I phrased this, particularly penguineggs here. Their points are fair ones and see my response there for clarification of what I say below.

Well now you're getting to the central point.

One of the bedrocks of the English legal system is that the accused in a criminal case is presumed to be innocent until proven guilty. This is such an oft-repeated idea that people rarely stop to think what it means.

If you presume that the accused is innocent, then you presume that the evidence against him or her is false, and that means that you presume that the witnesses for the prosecution are either mistaken or lying. And, if part of their evidence is a matter about which they cannot really be mistaken - such as whether they consented to sex - then logically you have to presume that they are lying.

And in a rape case, the principal prosecution witness is the victim, and she will not be mistaken about whether she consented, so legally she is presumed to be lying until it is proven that she is not.

In short, if you accept 'innocent until proven guilty' then you get 'victim presumed to be lying about consent'.

Now this sounds horribly harsh. In fact, it's so harsh that given the special nature of rape and related sex crimes the law was actually changed in 2003 to avoid this problem in certain circumstances. Section 75(2) of the Sexual Offences Act 2003 says that the victim is assumed to be telling the truth about not consenting if any of the following are proved:

- where there had provably been violence or a threat of immediate violence to the victim, or to another person
- where the victim was unlawfully detained at the time
- where the victim was unconscious or asleep at the time
- where the victim had a disability that would have prevented her communicating consent
- where the victim had been doped (date-rape cases)

These aren't conclusive, but it's for the defendant to prove that the victim did consent, not for the victim to prove that she didn't.

So why not apply this to all rape cases? Because at the moment the policy is that there needs to be firm evidence of circumstances where consent wouldn't or couldn't have been given. To use Whoopi Goldberg's unfortunate term in the Polanski case, these are all 'rape rapes'.

There is an argument for saying no, the nature of rape cases is that there should always be a presumption against consent. But as I hope I've explained above, this would mean taking all rape cases out of the usual innocent-until-proven-guilty basis of criminal law and putting them in a special category of their own.

Comments

[davidwake.livejournal.com]

So, if someone has a copy of this transcript they can rape her with impunity. i.e. she cannot now say 'no'?

[major-clanger.livejournal.com]

No. But if you were one of the participants, and the chat included comments about being open to group sex, then it might be evidence that your version of events being that it was group sex, not gang rape, was at least not inherently unlikely.

Also, sadly, there is the problem that some members of a jury will form a bad impression of the witness and as I note it only takes 3 jurors to feel this way for a conviction to become virtually impossible.

[autopope.livejournal.com]

That last sentence is, alas, the best argument for no-jury trials I've heard in a long time.

[davidwake.livejournal.com]

Yes, that's an interpretation.

And there was a comment that the witnesses credibility was shot to pieces. Therefore if it's her word against X's...

[penguineggs.livejournal.com]

In which case, the answer to the above question is in fact, "Legally, no but practically speaking, yes."

[surliminal.livejournal.com]

Very good summary. Once upon a time i taught this area and was very glad to stop. Does that dreadful doctrine on "unreasonably but subjectively believed the victim was consenting" still hold?

If you applied a kind of welfarist "law and ecs" approach to rape ie conventional legal process demonstrably does not work to provide "justice", I couold see an argt for making it an exception to conventional due process (rather as in NZ child law, evidemce of domestic violence of any kind means a parent presumptively gets no access rights to a child with no further prooof needed). But that will never happen in criminal law and would i guess be against Art 6 anyay?

[brixtonbrood.livejournal.com]

The only place I'd disagree with you is that the complainant doesn't *have* to be lying for the accused to be innocent - the complainant can be mistaken about their own actions (especially because they don't remember) and the accused can be more or less reasonably deceived about capacity for consent. Given the effect of alcohol in some troubling recent cases this is not just a theoretical distinction.

It's a nightmare. I've seen it suggested that victims just sue for civil damages, but that's a hell of a decision to rest on the balance of probabilities. I'm almost tempted to recommend bizarre IT-based science fiction solutions.

[dougs.livejournal.com]

Not arguing, but just completing the argument: The complainant could also be mistaken about the identity of their assailant -- when a rape did occur, but the rapist was someone other than the accused.

[brixtonbrood.livejournal.com]

True for the sake of completeness, but not a rape-specific problem, in fact rather less of a problem for rape than for other crimes.

[waistcoatmark.livejournal.com]

The problem with the no-jury approach is that a large portion of the country is of the opinion that judges are aging fuddy-duddy men who fall into the "she was asking for it dressed like that" category.

Whether that opinion is true or not I leave to people with more experience of judges than myself (not tricky, I don't believe that I've ever met one), but it'd be a tricky sell to the country that it would improve the chances of convicting men in rape cases.

[penguineggs.livejournal.com]

There was a judge in this country (Jerry Harman) who was reputed to have told a witness who indicated that she wanted to be called "Ms So-and-so" rather than "Miss So-and-so" that only prostitutes used Ms.

[surliminal.livejournal.com]

That opinion is largely a nonsense now IMHO. Almost all proper judges I have met (ie, not amateur magistrates) have been both scarily smart and socially responsible. This may however reflect Scotland ratner than England. The people who are judges are now, remeber, predominantly MY KIND OF AGE. they are David Tennant not Wm Hartnell...

[htwj.livejournal.com]

If you presume that the accused is innocent, then you presume that the evidence against him or her is false, and that means that you presume that the witnesses for the prosecution are either mistaken or lying. And, if part of their evidence is a matter about which they cannot really be mistaken - such as whether they consented to sex - then logically you have to presume that they are lying.


You presume that the accused is innocent - and the job of the prosecution is to prove guilt. I do not see your logic that the evidence is false.

[nojay.livejournal.com]

As a layman I take M'learned's description of the process as the court proceedings start from the basis that the evidence against the accused is assumed to be false and it is the prosecution's job to prove to the jury that it is true. To that end they bring forward collaborative and non-contradictory testimony by multiple witnesses, introduce physical evidence with a trail of custody to show it is relevant and that it was not tampered with or corruptly created to secure a conviction etc.

The defence may well spend a lot of time in court trying to knock holes in prosecution evidence, either that of witnesses or details in the collection and processing of physical evidence. If they succeed in demonstrating that the evidence is false or at least not convincingly true then the prosecution will (probably) fail as the jury will not be able to find the accused guilty beyond a reasonable doubt.

[penguineggs.livejournal.com]

My concern, having studied criminal legal practice, is why this evidence came in so late. It takes six months on average to go from initial charge to appearing in Crown Court, and in that time a lot of things are meant to happen including both sides disclosing the evidence they are planning to use. So where did this transcript of MSN chat sessions come from and why didn't the Prosecution find out about it until after the case had started?

If you want my informed guess, someone took over the file at a very late stage (every time I've had anything to do with the CPS they're had shockingly high levels of staff turnover/lack of continuity on files, and one of the constant complaints about the criminal bar is underpreparation due to a combination of insanely high workloads in order to make a living at Government rates, briefs being delivered late and iffy clerking decisions) and spotted something which had been overlooked/discounted earlier.

[penguineggs.livejournal.com]

If you presume that the accused is innocent, then you presume that the evidence against him or her is false, and that means that you presume that the witnesses for the prosecution are either mistaken or lying. And, if part of their evidence is a matter about which they cannot really be mistaken - such as whether they consented to sex - then logically you have to presume that they are lying.

And in a rape case, the principal prosecution witness is the victim, and she will not be mistaken about whether she consented, so legally she is presumed to be lying until it is proven that she is not.

In short, if you accept 'innocent until proven guilty' then you get 'victim presumed to be lying about consent'.

With all due respect, the above is not one of your more stellar pieces of legal analysis.

In the first place, it conflates the burden of proof with the standard of proof.

The "presumption of innocence" would lead to a lot fewer semantic traps (into one of which I believe you have fallen) if you reframed it as "assymmetric duty on each party". That is, the prosecution's job is deliberately made more difficult than that of the defence.

On the civil standard of proof, the burden of proof means that if the facts come down 50/50 (that is, if it is absolutely definite that one side or the other must be lying, it's just a case of which one) then the defence wins because the dice are loaded that way.


The criminal standard of proof is one where the dice are even more heavily loaded in favour of the defence (in theory, I'm talking here) because the prosecution doesn't simply have to prove that its case is more likely than not, but that its case is overwhelmingly more likely than not.

So it is perfectly logically consistent (and is particularly likely, I submit, where there are multiple defendants and evidence that the prosecution witness consented to sex with one of them) to have a result in a rape trial where the evidence shows that the chief prosecution witness is more likely than not to be telling the truth, but the defendant still must be acquitted because the prosecution haven't eliminated the possibility that she might be lying to the relevant standard. To take a less emotive subject, murder, the chief reason O.J. Simpson was acquitted of murder, but made liable for unlawful killing in the civil suit, was the chief prosecution witness in that case essentially said, "I'll take the Fifth" when asked the direct question, "Did you tamper with evidence?" After that, a conviction would clearly have been unsafe but it didn't stop a civil suit succeeding on the lower test.

[major-clanger.livejournal.com]

I'll concede this isn't as well-argued a point as I'd like to have made it. It was originally a reply to a comment, and I should probably have re-written it before posting it again, but I was about to head out so didn't.

Also, there was the context I originally wrote it in. On the original post I'd observed that it was quite likely that the case involved five defendants asserting that there was consent and the one victim stating that there wasn't, and that this, combined with the presumption of innocence and the need for at least ten of the jurors to agree guilt beyond reasonable doubt inevitably made it challenging to secure conviction. Someone then asked:

"What I don't understand is - they have a really really obvious motivation to lie, and she doesn't. Why, in the absence of any evidence for a motive for her to lie, is it reasonable to doubt her?"

My response was an attempt to make - perhaps rather forcefully - the point that if you assume that the defendants are likely to be lying and that the victim probably isn't then you in effect reverse the burden of proof. But yes, it rather simplifies matters and it would be better phrased in terms of standards of proof. (I well recall how much trouble some law graduates had on my BVC in getting to grips with such topics as the difference between evidentiary and legal burdens of proof and was wary of getting into too detailed a discussion.) I like your term "assymmetric duty on each party" though and think that's a good way of putting it.

Nonetheless, juries are in effect told to be inherently sceptical of the prosecution case. At the very least they will be warned that it is for the prosecution to prove its case, not for the defence to prove innocence. In rape cases there may have been a more specific warning about the credibility of the victim. Remember, until 1994 this was normal in cases of uncorroborated claims of rape. S.32(1)(b) CJPOA 1994 made such warnings optional, but in R v Makanjuola the following year it was held that a warning to the jury about the credibility of an uncorroborated victim/witness could still be given if appropriate, such as if there was other evidence that the victim/witness had not told the truth.

It may well be that in this case the victim had denied that any such online chat had taken place. If evidence had then emerged proving that it had, the Prosecution might have felt (in addition to the other factors I mentioned) that a Makanjuola warning to the jury to treat the victim's evidence with particular care (which a jury might well take to mean 'scepticism') would be bound to follow.

[uitlander]

Juries are a difficult subject. I was all for them, until I sat on one. Clearly I can't tell you any details about the case or the actual deliberations.

I think it is safe to say that the majority of my fellow jurors were not terribly gifted in the brains department, and the finer points of law that had been argued in front of them was not something they had any desire to engage with. What I did see was a lot of bigotry and innate prejudices based on perceptions of the social class of the different players in the court room. Having seen that in action, I most definately do not want to ever be faced with a 'jury of my peers'.

[pwilkinson.livejournal.com]

I was all for them, until I sat on one.

At least for rape trials, OMG, yes!

Clearly I can't tell you any details about the case or the actual deliberations.

Which in my case leaves me completely unable to explain why I believe my previous remark.

[brixtonbrood.livejournal.com]

Actually the only juror that I'm familiar with (I wasn't the juror, it was a family member unknown to any of you) came back with a ringing endorsement of the system - in a rather subtle case they did a good, intelligent and principled job.

Doesn't mean that there aren't a lot of crap juries out there, but I just thought I'd add a positive data point amongst the handful of horror stories on this thread.

[coth.livejournal.com]

The jury system and the notion of a jury being the defendants "peers" dates back several hundred years. Surely the total group of judge/jury/representatives/defendants/victim in essentially pre-literate and much less geographically mobile ages would have been a lot closer to being "peers", i.e. socially and educationally homogenous, than they would be nowadays. We've spent several hundred years developing and reinforcing a system to the point where the judge and representatives are likely to be hugely better educated both generally and specifically than most juries and most defendants. Perhaps signs of need to redesign or at least tinker with the system to restore some of that lost balance?

Surely also the whole idea of a "jury of one's peers" is biased to the defence and to the preservation of normal power relationships in that the jury of the defendant's peers will presumably sympathise with the defendant's problems and thinking?

[owlfish]

And before that it was twelve upstanding men. And before that, twelve local members of the nobility. At least since the 1920s, women can serve on them too, a relatively recent change. So, relative values of "peers".

[steer.livejournal.com]

Given the case was presumably one person saying "I was raped" and six saying "it was voluntary" (if the defendants were saying "we did not have sex with her" the chat logs would not be relevant) how could a prosecution ever have taken place even with the most hang em and flog em jury in the world? I guess there must be lots of factors we don't know about.

[major-clanger.livejournal.com]

I guess there must be lots of factors we don't know about

It would probably be a good idea if all blog posts commenting on controversial legal cases were obliged to start with this in 36 point bold!

[ms-cataclysm.livejournal.com]

I was on the jury of two rape trials some years ago . One resulted in a guilty verdict, the other in an acquittal. I don't think that my fellow jurors were prejudiced or stupid -the range of views expressed didn't seem dissimilar to those posted on the internet about this case.

I think that if a skilled prosecutor had known about this evidence in advance, he/she could have worked round it, but as major clanger has pointed out, there seems to have been an ambush late in the day and perhaps a moment of panic .