Improving Justice for Rape Victims
Photo courtesy of Aditya Joshie, Court
by Pam Enne
DISCLAIMER! CONTENT WARNING RAPE
Calls for reform of the law on serious sexual offences have been prompted by low conviction rates for rape throughout the UK. A researcher at Aberdeen University has suggested that the root cause of the issue lies in the accepted logic of the law. David Lorimer, an ex-consulting engineer, applies his understanding of risk analysis to the criminal law. He believes that an option for trial without a public jury could go a considerable way to empowering victims and providing better judgements in rape cases.
PE: How do you equate the criminal trial to a technical risk analysis?
DL: A criminal trial is an assessment of blameworthiness against a standard of probability – ‘beyond reasonable doubt’. There are competing risks at play; risk of conviction of the innocent versus risk of acquittal of the guilty.
PE: What is the current status of rape law reform in the UK?
DL: The law on rape in the UK varies throughout the jurisdictions of Scotland, Northern Ireland, England and Wales. Yet, each nation struggles to provide support, protection and justice to those who claim that they have been raped. This is best illustrated by the low conviction rates for rape throughout the UK and the ongoing efforts for rape law reform by institutions, such as Rape Crisis Scotland, as well as politicians like Anne Coffey MP and established members of the legal profession such as Lady Dorrian in Scotland and Sir John Gillen in Northern Ireland. Recent figures from the Crown Prosecution Service in England show that while complaints of rape increased over the past six years to almost 60,000.
In 2018, prosecutions for the crime have dropped to their lowest levels in more than a decade, with just over 3 per cent of reported rapes resulting in conviction.
PE: Is there a common thread that runs throughout UK jurisdictions in rape trials?
DL: I would say there are two key threads. The first is our common adversarial system which effectively promotes emotive responses from jury members wherever advocates and barristers can bring them into play. This effectively feeds on prejudice. The law has been tweaked over the years to try and combat such unfair advantage being brought to bear but one only has to attend a rape trial to observe such practices first-hand, blatantly alive and kicking.
The second is a House of Lords judgement that was made in 1991 (DPP v P) where an often-oversimplified precedent was set leading to the legal fiction that prejudice in the jury can somehow be directly outweighed or negated due to the strength of evidence giving rise to that prejudice. The dubious nature of the logic which underlies this ‘paradigm’ was manifested quite recently in the Ched Evans case.
Evans was found guilty of rape but, on appeal, new evidence relating to the complainant’s allegedly promiscuous sexual history was deemed admissible.
This is fundamentally on the legal basis that the new historical evidence (defined as ‘similar fact’ evidence under English law) was of sufficient strength (‘probative value’) to outweigh its prejudicial effect. The way this evidence was introduced was questionable and when the jury, upon retrial, took just two hours to acquit Evans there was a subsequent furore from women’s groups and campaigners seeking to improve the plight of complainants (referred to as complainers in Scotland), and the rates of conviction, in rape cases – yet the underlying, over-simplified legal precept, namely that probative value can directly outweigh prejudicial effect, has never been held to account.
From a risk perspective this precept holds a number of difficulties. In terms of legal process, so called ‘Rape Shield’ legislation, which is supposed to bar a complainer’s sexual and medical history from being admitted at trial, is rendered ineffective where a judge decides before the trial that such evidence has the right level of probative value or evidential weight. So, we have two separate stages of risk analysis, one at the pre-trial stage conducted by a legal professional who is not generally party at that time to the evidence yet to be presented at trial, and whose decision on admissibility is thus made before all the facts have been relayed by witnesses, tested and proven in court. The second stage, conducted at trial by members of the public jury whose understanding of the complexities of the law and of the social, sexual and psychological factors bearing upon difficult cases such as rape, is likely to be overshadowed by preconceived notions of justice and the imagined mythology of rape, particularly with respect to ‘rape myths’.
A judge may be unlikely to bar certain evidence that, if left out, may give rise to an appeal or impact the perception of a fair trial
Yet, s/he is at liberty to withhold evidence based on some form of pre-trial value judgement about probative strength (or lack of it) with respect to notions of prejudice. The jury takes this ‘pre-filtered’ evidence and is unlikely to see things analytically from a legal perspective, particularly where sexual or medical history impacts on the credibility of the complainer and jury room performances have stirred up personal prejudices.
PE: What do you see as the opportunities and benefits offered by non-jury options in rape trials?
DL: Non-jury civil courts (and inquiries) without juries are more suited to complex technical analysis of events than criminal courts with public juries. This is part of the reason why failed criminal rape cases have recently found success and a certain level of justice for victims in the civil courts (see ‘Miss M’ v Coxen and Ms Clair v Goodwillie and Robertson.
A systematic reform of the criminal law could bring in changes incrementally, such as in the first instance, the option for the complainer (referred to as the complainant outside Scotland) to ask for a trial without a jury wherever sexual or medical history has been deemed to be admissible. This would amount to an empowerment of the complainer in a process in which they have historically been relatively powerless and voiceless.
Incremental implementation would provide the opportunity to monitor judgements and any unforeseen potential for appeal.
Non-jury trials could provide the opportunity for consistent, informed and educated analysis to be carried out by a small, cross-disciplinary panel of professionals, and perhaps one or two members of the public, with all the relevant knowledge, facts and evidence available to them, both live and recorded.
PE: How does all this compare with industrial risk analysis?
DL: Determining the likelihood of a series of events which might occur in future, which is what industrial risk analysis is generally concerned with, is quite analogous to assessing the likelihood of a series of events which have allegedly transpired, which is what a criminal trial is concerned with (reference for instance Lord Cullen’s excellent technical analysis for the Piper Alpha Inquiry which had a significant impact on industrial risk analysis). In carrying out an industrial risk analysis, a large company would gather experienced personnel from different stakeholder disciplines to brainstorm a sequence of events systematically and identify key risks at each event before assessing overall likelihoods of occurrence. This is similar to how civil courts and inquiries operate.
The idea of having one person, no matter how experienced or knowledgeable, predetermine what technical information should be passed on to a team of untrained amateurs and to then allow them to embark, unattended, upon a detailed and complex analysis with very serious consequences, would be unconscionable.
Editors’ note: David Lorimer holds a bachelor’s degree in engineering science and a master’s degree in criminal law from Aberdeen University, where he is currently studying for a PhD in law. He also holds a bachelor’s degree in law from Dundee University. He regularly contributes to The Scottish Legal News and his related blogs can be found on Aberdeen University Law School’s ‘law blog’ website.
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