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Rape Trials

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Vera Baird (Redcar): The crime of rape is suffused with myths. The first relates to the true nature of rape: the rapist is a stranger, lying in wait in a mask on a dark footpath in the dead of night. That is "real" rape.

Such incidents are few. The truth about rape is that in 21st-century Britain, one in four women is either raped or suffers an attempt at some stage in her life, and 90 per cent. of those are perpetrated by partners, ex-partners or men they know.

The space between the myth and the truth contributes to a further myth—that if a man a woman knows, as one High Court judge put it to me, goes a bit too far when she does not want it, that may be misbehaviour but it is not a serious crime. As a result of that myth, the sympathy in a rape trial between parties who know each other will be with the defendant. He faces a serious charge intended for the prosecution of "real rape", of the masked and dark night sort, but is regarded as only technically at fault, in a possibly understandable way, in an existing relationship.

Much research has been done on the impact of rape on women, which all points to it being just as traumatic to be raped by someone a woman knows as by a stranger. Some such women find it harder to deal with. They feel betrayed not only by the men but by their own judgment. They suffer shock, self-blame, anger, depression and fear of being alone. The effects are generally long term: 97 per cent.. of women sampled had lasting emotional harm; 90 per cent. had ongoing family or relationship problems; and 54 per cent. reported that their education or employment had suffered. Rape, even by a man known to the woman, and contrary to the second myth, is an extremely serious and damaging crime.

On 8 April, the inspectorates of constabulary and of the Crown Prosecution Service published a report on the investigation and prosecution of rape. They agreed. The report states:

Yet rape is vastly under-reported. A literature review for the inspectors by Professor Liz Kelly of the university of North London shows that about 90 per cent. of raped women make no complaint. When rape is reported, fewer than half the cases even start as prosecutions. One in five reaches trial, and fewer than half those result in a conviction. All these drop-out rates are far higher than for any other crime. The conviction rate for those who report is just 7.35 per cent.

Why do women not report rape? Research shows that many believe that the police and the courts will not think that rape by someone the woman knows is "real rape". They fear that they will be blamed or disbelieved and that they will not be supported. In particular, they fear that a further myth—that a woman who has had sex with A and B is more likely to have had sex consensually with C—will persuade a court to allow C to bring up her previous sexual history in public to embarrass and discredit her. The admission of such evidence causes great distress to rape complainants, and has been known for many years to deter women from reporting rape.

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The inspectors' report suggests that all those reasons for not reporting are fully justified. When investigating rape by men known to the woman, police do not follow up inquiries that might support the complaint. Police statements about previous heterosexual history show that

In deciding whether to prosecute, both the police and Crown prosecutors make

The literature review points out:

Of course, the decision-making process is also influenced throughout by the prospect of success at the next stage and, ultimately, by the likelihood of a guilty verdict at trial. It is clear that police and prosecutors, in making negative decisions based on those stereotypes, are giving unwitting testimony that the courts are also subject to those stereotypes. The inspectors' report makes clear reference to similar problems in the trial process. After 25 years at the criminal bar, I can tell the House that rape myths certainly operate in trials all the time.

In an attempt to tackle the myth that previous sexual experience makes it more likely that the complainant has consented, the Government passed sections 41 to 43 of the Youth Justice and Criminal Evidence Act 1999 to prevent questioning about a woman's sexual history if the object is to show that she consented. That exclusion is very important.

The Canadian researcher Catton has shown that where jurors hear evidence of previous sexual history, their view of the guilt of the accused diminishes in proportion to the amount of material heard. That is so even if the complainant denies all the material alleged. In other words, sexual history evidence contributes to wrongful acquittals. Therefore, the Government tried to rule that out.

The offence of rape is committed if a man has sex with a woman, knowing that she is not consenting or being reckless over whether she is consenting. It follows that if he honestly believes that she is consenting, even if she is not, he is not guilty. Although section 41 of the 1999 Act prevents questions about previous sexual history to show consent, it does not exclude them if the aim is to show that the accused believed that the woman consented. As a consequence, the defence of belief in consent is run in almost every case. Previous sexual history can then be, and is, allowed in. Once that subject is in the trial, it impacts on the issue of her consent just as much as on that of his belief. All the humiliation, the effect of deterring women from complaining and all the effects that the Canadian researcher noted fall into place, despite the Government's good intentions.

Judges rarely stop a defendant from running belief in consent as a defence even when, for example, the complainant says that she struggled but the defendant says that she happily consented. In that situation, there is no room for belief in consent unless the defendant is bravely arguing that he thought that the complainant's struggles showed her consent. Either she struggled or she did not—there is no room for him to make a mistake. Here is a further myth, or perhaps just a

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prejudice. What a man hears or knows about a woman's sexual history can make him believe that she is consenting. He might hear or know things that make him think that she might consent if he makes an approach, but how she actually behaves when he does so is a different matter, on which her previous history can have little effect. The issue can surely be evidenced on by her conduct at the time.

The inability of predominantly male judges to exclude their own gender bias and follow the logic of these not especially difficult arguments means that they habitually allow the defence of belief in consent and, consequently, previous sexual history. The sexism of many judges who hear criminal cases could not be better exemplified than by the recent case of the Crown v. A. That was about a woman's previous sexual history with the defendant. The defendant said that they had had sex before and she denied it. No one doubted that, under current law, his assertion was admissible to show belief in consent, but the question was whether, despite section 41 of the 1999 Act, it could also be admitted via the Human Rights Act 1998 to be official evidence of her consent.

The trial judge felt that his assertion could not be admitted in that way, but he sent the case to appeal "enthusiastically", saying that if previous sexual history were not to be admitted to show consent, no jury could be entitled to know whether any complainant were a prostitute or a nun. That utterance amply demonstrates the operation of myths at trial. It is a damning condemnation of the low level of understanding that the judiciary has of the society that it is intended to serve that a judge at the Old Bailey could, with utter lack of awareness, say such a thing today.

The case of A went to the Court of Appeal, where matters did not improve. Lord Justice Rose and Mr. Justice Hooper gave a judgment in which they found that it was common sense that a woman was more likely of having consented on the disputed occasion if she had had sex with a man before. Any woman judge—supposing there were many of them—or any woman or any judge properly trained in gender awareness could have told them that any number of factors might have made her less likely to repeat the experience and, equally, there may have been factors that made it more likely. Common sense does not point only one way.

Court of Appeal judges are very senior and set precedents that trial judges must follow. Those two judges involved are not old fogeys. They are middle aged and clever. It is a dreadful indicator of how steeped in gender prejudice the higher judiciary and that branch of the law are that the substantial intelligence of those two men was insufficient to allow them to rise above it. Such sexist attitudes mean that the defence of belief in consent can be and is used to sidestep section 41, introduce material likely to generate wrongful acquittals and contribute to women's continued reluctance to complain.

There is a possible solution. Prior to 1975, a defendant could not defend on belief in consent unless his belief were reasonable. Many pressure groups think that that position should be restored. In terms of legal precedent and principle, it is right that no one should be convicted of an offence if he makes an honest mistake, even though it is unreasonable. The report of the Home Office review team on sexual offences, "Setting the

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Boundaries," recommended in July 2000 that the Canadian law on the matter should be introduced in this country. The Canadian law says:

That law focuses attention firmly on the events at the time, which must, logically, determine or, at the very least, dominate the defendant's belief. What the man believed on the basis of rumours about the woman would, rightly, be pushed to the margins and would usually be completely excluded. However, previous sexual history would be admitted if, somehow, it had influenced him. In 1995, the Law Commission also thought that that approach was right. I ask the Government whether they intend to follow those recommendations and close the loophole that gives rise to wide-ranging injustice and, if so, when. I appreciate that, in a debate of this sort, all that I can ask for is an indication from the Government.

While I am on the subject of things that can give rise to injustice, I turn once more to the judiciary. I appreciate that it does not fall under my hon. Friend's Department, but I understand that an interdepartmental working party will be set up to act on the inspectors' report. It is plain that rape myths have force throughout the criminal justice system, from top to bottom, and that the training that the inspectors recommend at their end, as it were, must also be applied to the judiciary. Will my hon. Friend urgently press for such training and for the swift recruitment of more women judges, so that male myths can be combated where they start by the achievement of a critical mass of women on the bench?

A year ago, I had a conversation with a famous female broadcaster—almost a household name—and the director of a prominent female equality lobby group. We three, confident middle-class women, decided that, if we were raped by someone we knew, we would be unlikely to report it. Now that I have read the inspectors' report and the case of the Crown v. A, it seems even less likely that any of us would report the offence. The abject long-term failure of the criminal justice system to protect women from rape must stop now.

1.14 pm

The Parliamentary Under-Secretary of State for the Home Department (Beverley Hughes) : I congratulate my hon. and learned Friend the Member for Redcar (Vera Baird) on securing the debate and on making an excellent speech. I warmly commend the work that she has been doing not only today, but over a period of time, both to raise awareness of those issues and to suggest some ways forward.

My hon. and learned Friend knows that I share the concerns that she raised about the level of convictions, the way in which women are treated and the issue of previous sexual history, which can mitigate against women feeling confident about bringing such experiences into the criminal justice system.

My hon. and learned Friend referred to the joint inspectors report published earlier this month. We certainly share her concern, and that expressed in the

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report, at the small proportion of rapes recorded by the police that result in a conviction. As she and the report said, there are few offences that impact so severely on a victim and, as with other aspects of personal crime—child sexual abuse would be another example—there is undoubtedly substantial under-reporting.

It is against that background that the Crown Prosecution Service inspectorate and Her Majesty's inspectorate of constabulary have undertaken a joint inspection into the investigation and prosecution of cases involving allegations of rape. As my hon. and learned Friend said, we are presently considering how best to take the project forward following that report, and there will be an interdepartmental working group. I have no doubt that as the process of work unfolds, some of the issues in the report for which she has called to be examined will be at the forefront of recommendations for training people throughout the criminal justice system.

As has been acknowledged in the debate, the Government took steps in the Youth Justice and Criminal Evidence Act 1999 to try to ensure that victims of rape were provided with protection if the case reached court, where they should be facilitated and enabled by the court process. Since September 2000, there has been a ban on defendants without legal representation cross-examining rape victims personally. That has put an end to rape victims being put through the appalling situation of the accused sometimes reliving his crime in court when he questions the victim. Under that provision, only a lawyer can question rape victims. If an unrepresented defendant refuses to instruct a lawyer, the court has the power to appoint one to conduct the cross-examination on his behalf.

My hon. and learned Friend mentioned section 41 of the 1999 Act, which relates to previous sexual history. It limits the questions that a rape victim can be asked under cross-examination about their previous sexual history in order that they do not have to go through the distressing and unnecessary ordeal of being cross-examined about their history. One of the difficult issues relating to that section is the balance that has to be struck between protecting alleged victims and ensuring that the defendant has a fair trial. I was a member of the Committee that considered the 1999 Act, and the intention behind that provision was to ensure that the number of cases allowing the introduction of previous sexual history was kept to an absolute minimum. It was specifically designed to eradicate the practice of impugning a victim's credibility as a witness by introducing such evidence.

As my hon. and learned Friend pointed out, the House of Lords judgment on Crown v. A has had a bearing on the way in which the courts are now interpreting the legislation. The case involved a challenge to the compatibility of the section 41 provisions with article 6 of the European convention on human rights, the right to a fair trial. As my hon. and learned Friend said, the judgment was delivered in May last year.

At its core were the strict limits that section 41 places on admissibility of previous sexual history evidence, and particularly on previous sexual contact between the defendant and the complainant. I am pleased to say that

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the House of Lords acknowledged that women who alleged that they had been raped should not be harassed unfairly, or at all, by questions about their previous sexual experience. It was felt that assumptions had too often been made that a woman who has had sex with one man is more likely to consent to sex with other men, or that she is less worthy of belief. The judgment also accepted that sexual behaviour between the complainant and other men could only in the rarest of cases have any relevance, and that section 41 deals sensibly and fairly with questioning and evidence about a complainant's sexual experience with third parties.

However, the House of Lords was not prepared to accept that the blanket exclusion of evidence of prior sexual history between the complainant and the accused, subject to certain exceptions, was a proportionate response. Contrary to the apparent intention of the legislation, the court took the view that as a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on circumstances, be relevant to the issue of actual consent, or belief in consent. The judgment left it to trial judges to draw the line between cases in which previous sexual experience between a complainant and an accused would be irrelevant, and those in which relevant sexual experience of that kind might be admitted under section 41. In leaving the judgment to trial judges, the House of Lords judgment has altered the structured way in which it was envisaged the section would be implemented by the courts.

Section 41 is a relatively new provision, and has needed time to bed down. I accept my hon. and learned Friend's view of the way in which decisions have generally been made under the provision. The inspection report says that there are different views on how well the provision is working; there will be few surprises about the different constituencies of opinion. Such concerns need to be examined, and we are planning a study, in light of the report from the inspectors and the House of Lords judgment, to evaluate the impact of section 41.

The overall aim of the research will be to examine the impact of section 41 on the prosecution of sex offence cases and the handling of such cases by the courts. We are finalising the details of how the research will be conducted, and we will consult key interest groups about our plans. The research will specifically examine the question of attrition, and involve interviews with participants in the process, including victims and victims groups. It will also consider a sample of cases, and examine issues such as the effect of the values and attitudes of decision makers at points along the criminal justice process. We expect the evaluation to start this summer and to report next year. Following the evaluation we shall consider whether any further changes to legislation are necessary.

Another important element in the 1999 Act includes special measures to help vulnerable or intimidated witnesses to give evidence more effectively in court, such as by having screens in court and live TV links. The national implementation of those measures starts in July this year in Crown and magistrate courts. That more sympathetic court environment will also be of great assistance to victims of rape.

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My hon. and learned Friend also referred to the sex offences review. All sexual crimes are truly dreadful crimes that deeply affect the lives of victims and their families and, sometimes, whole communities. The review was set up in January 1999, with a view to introducing modernised and strengthened legislation that reflects today's world.

What is needed is a clear and comprehensive range of offences that provide for the adequate protection of all victims of sexual offences, especially children and the more vulnerable members of our society, underpinned by a schedule of penalties that enables the appropriate punishment of abusers. The general principle being applied in the review process is the need to increase the protection offered by the law, whilst ensuring fairness to the defendant. The question of consent is arguably one of the most difficult issues a jury is asked to consider. One of the proposals made by the independent review body is that a clear statement on the key principles of the meaning of consent should be incorporated into legislation.

We are currently analysing all the recommendations made by the review. My hon. and learned Friend asked several questions in relation to that. Ministers are going through the recommendations in great detail, considering how the sex offence laws should be changed and the issue of penalties. I am not in a position to say what our thinking is on her questions because we are not in a position to make it public. We need further time to consider matters. We are taking those issues, and the views expressed by the groups she mentioned, very seriously. We intend to legislate as soon as parliamentary time allows.

The whole context of the perspective and experience of victims in the criminal justice system is extremely important. The Home Secretary is working hard to bring that to the fore right across the board. Last October, we gave many victims the opportunity to make a personal statement about how crime has affected their lives. That will ensure that they can be given the right level of protection and support, and that their needs are taken into account at every stage of the process. Later this year, we will be announcing our detailed plans for a bill of rights for victims, and possibly a victims' commissioner. We are considering those ideas in relation to the proposed White Paper on criminal justice. That entire White Paper will be written from the starting point of understanding the needs of victims and witnesses better. We must ensure that the whole of the criminal justice system is re-geared to place those issues at the fore at every stage of the way in which the justice system works.

I welcome my hon. and learned Friend's contribution to an important issue. I have heard keenly what she has had to say, and I can assure her that the issues are under active consideration and are being taken seriously by the Government.

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