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.

[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?

[surliminal.livejournal.com]

Oh juries should be abolished. End of story. Talk to anyone in criminal law and that becomes apparent immediately. What is less well known is that in Scotland at least the vast majority of criminal cases are sheriff alone (usually in Glasgow :) ie no jury - so in fact the "jury" req is only for serious crimes and not nearly as "intrinsic" to crimnal justice as tv makes it look.

[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...

[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.

[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.

[alexmc.livejournal.com]

Professional jurors?

[zornhau.livejournal.com]

Because judges are never utter loons, or right wing nuts are they?

Juries are the least bad option, I think.

As for those merrily wanting to shift the burden of proof onto the accused; this potentially turns a rape accusation into a letter de cachet (pardon my bad French). Though almost all rape accusations are honest, this would hand a scary tool to the tiny percentage of women who are stalkers, sociopaths, bunny boilers and so on.

[incy.livejournal.com]

until of course you get a judge who decides to form a bad impression of the witness and there are likely to be a lot less judges involved then member's of a jury.

[surliminal.livejournal.com]

What's the point when you have judges? Juries are mean to provide common sense but all they really provide is unskilled prejudice. A min of 3 judges per case to rule out *their* biases would be good but very expensive - cases would be backed up for years..

[alexmc.livejournal.com]

Because judges are bloody expensive. I am thinking of professional jurors being something like a magistrate. But I suppose that doesn't hold up because magistrate's aren't paid either, are they?

[surliminal.livejournal.com]

See comment above re an ideal (& impossible)panel of at least 3 judges per case, so nutter prejudices would be overruled, by and large. Also judges who publicly give weight to irrational prejudice largely get pilloried forit these days and that wrecks their career progression. I am unashamedly elitist on this: judges are very bright by and large; juries are predominantly drawn from all the people who can't get out of jury service ie the bright/professional/employed. Judges also usually take huge pay cuts to become judges, another litle known fact so tey're mostly pretty civic minded. I'm not talking amateur magistrates here btw who largely do combine te worst of all worlds..

(My I wish my sociolegal empirical stuff on juries wasn't 20 years out of date..)

[penguineggs.livejournal.com]

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

[surliminal.livejournal.com]

No and if you want a combo of not knowing the law PLUS blind prejudice that's where to go!

There are all kinds of models - eg in civil technology cases it is often suggested a judge sits assisted by technological advisers. In child protection, lay community volunteers heavily trained by pros, do seem to do well in Scotland. Jury training might be a model to follw but again it would be ruinously expensive (CHildren's panel training as I recall takes c 2 years albeit very part time..)

[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...

[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.

[penguineggs.livejournal.com]

The judges I've met socially (who are all in a particular sector of law) have all been extremely smart and some of them have been socially responsible (to a marked degree in one particular case), but their attitudes have been very much coloured by coming (still) from a very narrow sub-set of the population and coming up through the side of the profession in which women are even more of a minority than in the other side,

What's your objection to magistrates?

[penguineggs.livejournal.com]

Now that, myself, strikes me as the real mischief in this case. There would have been no story if the judge had told the jury that the CPS had withdrawn their case in the light of new evidence and he was therefore directing them to acquit. It was his commentary which a) has caused the publicity; and b) got a lot of defence barristers going, "God, Facebook! Why the hell didn't I think of it before?"

[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.

[smofbabe.livejournal.com]

However, there could be cases where the judge's personal experience might affect an opinion, or where the judge has subconsciously formed a prejudicial opinion about either the defendant or the defendant's counsel and that could prejudice the result. I don't defend the US jury system as perfect (it's been described as being judged by 12 people too stupid to get out of jury duty) but at least you do have the voir dire system to help get rid of people with an obvious bias (if the legal teams are doing their jobs correctly) and less possibility of a single person's prejudice doing damage.

[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.

[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.