For a legal system to be fair it is vital that the rights of the defendant to a fair trial are upheld, but it is equally important for the complainants to obtain justice. The rights of both defendants and complainants must be balanced. Women should be enabled to obtain justice without jeopardising the rights of the accused. In rape trials though this is rarely the case, the defendant is too advantaged, allowing men guilty of sexual assault to go free.
Over the last few decades, the legal system has taken a rapping with freeing defendant after defendant following wrongful conviction: the Guildford four, the Birmingham six and Judith Ward, to name a few. As shocking as these miscarriages are, miscarriages of justice resulting from wrongful acquittals should not be forgotten. It is an injustice not only when the innocent are convicted but also when the guilty go free, or when a case never gets to court at all.
The plight of the rape victim remains as acute as ever. They are viewed in and out of court with suspicion and hostility, and facilities which are meant to aid them are few and far between (Temkin 1987). In the US too, conviction rates are low. According to the FBI in only 16% of reported rapes end in conviction (Steketee and Austen). Consequently the courts have been described as a “disaster area” for rape victims (Bart and Moran 1993) and many of the reforms enacted have had a very limited effect (Allison and Wrightsman 1993). In Europe too, rape trials are an area of particular controversy (Pitch 1995). For example in Switzerland it has been estimated that only 2% of reported rape cases lead to a conviction (1994).
In the 1970s there were campaigns aimed at dispelling the myths surrounding rape. All sorts of myths were challenged: that rape was an expression of sexual desire; that rape was due to the irresistible urge of male sexuality; that rapists were crazed psychopaths; that rapists were black; that rape was a mere misunderstanding, etc… However, today many of these myths still exist strongly in many peoples minds, along with a few “new” myths.
One such prevalent myth is that men need protection from women who are prone to make false allegations for all sorts of reasons, ranging from spite and revenge through to fantasy and pretence (as a means of hiding their infidelity or sexual adventures) to confusing bed sex with rape. Or it is argued that a woman could have avoided the rape if she had not laid herself open to attack (victim precipitation), or she asked for it and secretly enjoyed it (victim participation). Myths about the nature of rape are contradictory, on the one hand rape is often seen as easy to get over, or as an experience that women should “lay back and enjoy”; and on the other hand, it is seen as a very serious crime. Rape is the ultimate form of objectification, in which the womans consent is overruled and her humanity denied. The offence poses a threat to physical integrity and this is compounded by humiliation and deprivation of privacy and autonomy. Yet rape is trivialised by women as well as men. It is argued that some rapes are not as bad as others. It is obviously true that there are different reactions to rape, as to any other trauma, but to argue that therefore rape should be graded according to its gravity misses the point. Rape is the ultimate denial of female subjectivity in a culture where a whole range of sexual practices operates in male interests.
Societal expectations concerning rape reporting are also contradictory. One view is that if a woman is raped, she should be too upset and ashamed to report it; the other that she will be so upset that she defiantly will report it. Both views exist simultaneously, but it is the latter that is written into law. Any delay in reporting is therefore used against her. There is further contradiction in that the complainant should appear upset as a victim but controlled and calm as a court witness. If in court she appears lucid as a witness she may not be seen s a victim. If she appears too upset, she runs the risk of being seen as hysterical and therefore not believable.
One common theme throughout many of these myths is that they absolve men from responsibility for rape. Such myths are important, as rapists draw on them to justify their violence. In Scully and Marolla (1985), men convicted of rape were interviewed; one argued “she semi-struggled but deep down inside I think she felt it was a fantasy come true”. Rapists do not invent their rationalisations; they draw on social myths reflecting ideas that they have every reason to believe that others will find acceptable (Grubin and Gunn 1990).
Women have been accused of lying about rape from time immemorial, and some women do make false allegations of physical battery. According to police statistics, approximately 8% of rape, as compared to 2% of reports of other crimes, are false or lack supporting evidence.
Even if 8% of women do lie about rape, they are the exception, not the rule. If there is any rule, it is that sexual assault is by far the most underreported crime in the United States (national crime centre 1992).
Myths about women making false allegations override commonsense explanations of why they should run naked into the street, cry compulsively, spend the night in police stations for fear of retribution for taking the case to court, change their name, move home, or even go into hiding. The phase “false allegations” needs up-picking, the malicious woman who concocts a false story to take revenge on a past lover would not get very far in the legal system, where a past sexual relationship usually precludes cases even getting to court. It is possible that on rare occasions women who have perhaps been raped or abused in the past may allege that it has happened again, but it is unlikely that a sensitive investigator would not be able to uncover this. Temkin (1987) points out that there is no evidence that fabricated allegations happen more often in rape cases than for any other type of crime.
Most commonly, however, false allegations refer to the woman’s words pitted against the defendant’s protestation that she consented. In most trials, the fact of sexual intercourse is not disputed; the issue is the meaning of consent. Men’s exaggerated fear of false allegation is perhaps more about men’s fantasies of women. It reflects a society where forced sex is far more common than imagined and where women who are forced into sex often do not name it as rape.
Two Scottish researchers found that reasons given by the police for complainant fabrication included the following: to explain a pregnancy; as an excuse for getting home late; spite; hyperactive imagination; and remorse (Chambers and Millr 1987). Similar arguments are often presented in court by the defence.
Although the FBI estimates that only 10% of rapes are not reported, police data and the results of national surveys of sexual assault centres indicate that 50% are not reported (Hall 1995). In the UK this issue is even more pronounced with 60% of rapes not being reported.
However, many experts feel that these figures grossly underestimate the degree of underreporting. Underreporting is especially prevalent among illegal and recent immigrants, among women from cultural backgrounds that value sexual chastity, and among women who were attacked by someone they knew (Petrak and Hedge 2002)
The limited information available indicates that African-American and Hispanic survivors, as compared to European and American survivors, face more negative social reaction if they disclose attempted or completed rape (Crawford and Unger 2000). Of all groups, Hispanic women have been found to have the highest rates of staying silent and the lowest rates of asking for help from others. Sexual assault is considered such a stigma that many suffer in silence rather than risk social disapproval and rejection (Ullman and Filipas 2001).
The anti-rape movement of the 1970s resulted in greater public awareness of sexual assault and improved recording procedures and legislation, making it easier for women to come forward. However within less than 2 decades, this process started to be, and continues to be, undermined by a backlash that dismisses sexual assault as “rape hype” and feminist propaganda. This movement also alleges that researchers exaggerate statistics (Media Education Foundation 1992) and that date-rape victims “cry rape” as an excuse for “bad sex” (Roiphe 1993)
Women who regained memories of childhood abuse were accused of lying to gain attention, financial compensation or of waging a personal vendetta against a family member. There have even been efforts to eliminate federal funding for rape crisis centres (Gilbert 1993).
These and other forms of backlash have silenced and continue to silence women who have been sexually attacked, causing some women (at times myself included) to wish that they had been mutilated physically as well as raped, so that they would be believed and respected as truth-tellers and not ridiculed and alienated as liars.
Women may regret having sex (the morning after phenomenon), but this does not cause them to “cry rape”. Women may reluctantly agree to have sex, but there is no evidence that they cannot distinguish such occasions from when they do not consent and are raped. In 1991 a study was carried out by Painter which indicated that it is more common for women not not recognise certain situations, including being “coerced into sex”, as rape than to “cry rape” when dissatisfied with sex. Rather than being eager to classify themselves as having been raped, the opposite appeared to be the case. In other words, when they were raped, they were often disinclined to see it as rape. Painter concluded, firmly, that women are unlikely to “cry rape”. It is important to be clear that consenting to sex, however reluctantly, is different from being raped. Additionally not resisting in response to threats or coercion is also distinct from consenting. The focus of trials should not be placed so heavily on whether or not the woman resisted, but on what lead the defendant to the belief that she consented. It is for this reason that it is (or should be) essential for the defendant to give evidence, or at least to justify his failure to do so.
The police treatment of rape cases has radically changed in the last few decades. The catalyst for this was, in part, an episode of the BBC television series police in 1982, in which police officers were seen in a live investigation of a woman reporting a rape. The brought to the public’s attention the harsh interrogation techniques rape complainants were subjected to and provided the impetus for the police to reform the procedures (Scott and Dickens, 1989). As a result of pressure from the Womans National Commission following publication of its report “violence against women” (1985), the Home Office issued a circular calling for improved police training to deal with rape and sexual assault, the appointment of more women police surgeons and the provision of better facilities for medical examination of women who had been attacked. Police handling of rape and sexual assault complainants, if not perfect, has greatly improved. Most police officers now have had some training (although this is often fairly minimal) and a chaperonage system is in place in many stations.
The number of women reporting rape and sexual assault to the police has doubled over the past decade in Britain, but the proportion of reported rapes resulting in a conviction has more than halved there are possible reasons why more women are reporting rape: confidence that the police will believe them has undoubtedly increased and greater acknowledgement of the prevalence of violence against women within the community could well have had an effect; but there could also have been an actual increase in the prevalence of rape.
||Total number of cases reported to the police
||Total number of cases proceeded against at magistrates court
||Total number of trials committed for trial
||Percentage of cases that that did not proceed from 2 to 3
||Number of cases appearing at crown court
||Percentage of cases that do not get from 3 to 4
||Total found guilty
||Percentage of guilty who got conviction of “rape”
||Percentage of reported cases that end in conviction
This trend has continued, and in 2008 the percentage of reported cases which ended in conviction was at an all time low of 6%.
In 1993 a study was done by Lees and Gregory in which women who had not reported their rape where asked why. The most common reason (57%) was a lack of confidence that the police would believe them, or take them seriously, particularly if they knew their attacker. Other reasons were fear of further attack from the assailant or his friends (18%), fear that the man would return, as he knew where they lived (14%), fear that if the man was of professional status he would the advantage over them (in one case the assailant was a high-ranking police officer). Several women did not report the event as they felt, or were made to feel, that the rape was their fault because they had gone willingly to the man’s home. Finally, 15 women were put off from reporting because they did not want to testify in court. Reasons including belief that a conviction was unlikely; belief that she, the victim, would be “on trial”; fear of reprisals by the man; not wishing to involve relatives; and not wishing other people to find out what happened. The reality of woman’s fear of retaliation were brought home by the case in 1995 of a husband who was acquitted of raping his wife only to return to their home days later where he beat her to death in front of their children.
Have you ever asked a woman who has been raped if she enjoyed it? Have you ever asked her if she was asking for it by wearing short skirts? Have you ever asked her if her shoes are not real leather but a “cheap” fake, implying that she may be too? Have you ever asked her to describe loudly in detail what happened in front of room of people? Have you ever asked her why she did not fight back more strenuously? Have you ever asked her whether she has ever had an abortion? Asked her about past sexual relationships? Ever demanded details of her menstrual cycle? Probably not… but these are all questions that have been asked in court. In fact these questions are encouraged on the grounds that they are the only way to protect men from false allegations. These questions also have the side effect of destroying the womans credibility.
So, if only 6% of rape cases end in conviction does this imply that the other 84% are examples of false accusations? Well I don’t think so… especially after myself reporting a rape a few years ago and never getting to court at all… women often put themselves through all the above only to have the defendant acquitted and walk free.
I will leave you with an example of this, which occurred in 1984 when Alister Winter (not real name) was accused by Julie (not real name) of rape. Julie was living with her parents in Sussex and had a boyfriend. One night she went to a Christmas party and got talking to a man there, when she went to leave he claimed that his car would not start and asked if she could give him a lift, thinking that it was a simple good deed she agreed. When they got to his home he insisted that she come in for a Christmas drink to say thankyou. She agreed to go to his flat and once there, the mans mood changed. He offered her drugs, which she refused, saying she had to go as she had to up early the next day. He physically stopped her from leaving, blocking the door and gripping her wrists. The more scared she got the more he seemed to enjoy what was happening/ he threatened to break her arm if she resisted, she pleaded with him and pretended to have an asthma attack. He pushed he down and raped her. After the rape he kept saying how he was not finished with her.
Julie managed to convince him that she needed her inhaler from her car, he made her leave her bag and shoes in his flat to ensure that he would return. When they got to her car Julie managed to leep in and lock the doors before he stopped her. She then drove off with him following her until she got to the police station; half naked, with no shoes and no bag.
Julie was covered in bruises and cuts, and had gotten a STI. She attempted suicide and ended up in psychiatric treatment. But Alister Winter was acquitted, although the judge unusually made an order for him to pay his legal costs of £15000. A friend of Winter was quoted in the media as saying “he used to have any woman he fancied, and has probably raped many times and gotten away with it”.
In 1993 Winter again appeared in court. It transcended that he had been taking women and raping them showing them the newspaper cutting from the previous trial as a method of making sure they did not tell as he would only be acquitted anyway. On this occasion he was found guilty of rape, buggery and administering controlled substances to have sex with female clients.