Observing Court Responses to Victims of Rape and Sexual Assault
| Author | Olivia Smith,Tina Skinner |
| DOI | 10.1177/1557085112437875 |
| Published date | 01 October 2012 |
| Date | 01 October 2012 |
75Smith and SkinnerFeminist Criminology
Feminist Criminology
7(4) 298 –326
Observing Court Responses
© The Author(s) 2012
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DOI: 10.1177/1557085112437875
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Sexual Assault
Olivia Smith1 and Tina Skinner1
Abstract
Despite years of policy reform in England and Wales, court responses to rape
and sexual assault victims remain inadequate. Existing literature often relies on
interviews, is outdated by policy, or ignores underlying assumptions. This study
therefore observed rape and sexual assault trials, identifying underlying assumptions
using critical discourse analysis (CDA). The main themes that arose were routine
delays, notions of “rational” behavior, extreme interpretations of “beyond reasonable
doubt” (BRD) and “burden of proof,” and winning as priority. These highlight the need to
move beyond prioritizing shorter term change and begin addressing the fundamental
inadequacies of court responses to rape and sexual assault victims.
Keywords
adversarialism, courts, observation, rape, sexual assault, trials, victim justice
The Criminal Justice System (CJS) in England and Wales is persistently critiqued for
poor responses to rape, and despite years of policy reform, courts resist change (Brown,
Hovarth, Kelly, & Westmarland, 2010). Even with a plethora of good quality research
on these issues, several gaps in the literature remain. For example, most studies use
interviews with victims or legal personnel, but court observations, which explore
actions rather than stated attitudes, are rare. In addition, the focus tends to be on iden-
tifying problematic practices rather than their underlying causes; with the research that
does attempt to do this now being outdated by important policy changes (see Ellison,
2001). This study therefore uses observations to explore judges’ and barristers’ treatment
1University of Bath, Bath, UK
Corresponding Author:
Olivia Smith, Social and Policy Sciences, University of Bath, Bath, BA2 7AY, UK
Email: os212@bath.ac.uk
Smith and Skinner
299
of rape, seeking to understand such treatment in relation to the underlying context of
the English and Welsh CJS.
Existing Literature, Policy, and Practice
Common Identified Problems
Research highlights two main problems faced by rape victims in England and Wales:
high attrition rates1 and inadequate treatment. Rape conviction rates have been identi-
fied as low, for example in 2006/2007, only 6.5% of reported rapes resulted in a
conviction (Kelly & Lovett, 2009). Most attrition occurs at the police stage (Kelly,
Lovett, & Regan, 2005); however, court conviction rates are also thought to be lower
than expected (Brown, Hamilton, & O’Neill, 2007). In 2008, only 38% of proceeded2
rape cases achieved conviction3 compared with 69% of proceeded “violence against
a person” cases in the same year (Walby, Armstrong, & Strid, 2010). This is especially
worrying because the difficulty of obtaining a conviction at trial is the most common
justification for attrition at earlier stages (Brown et al., 2007; Ellison, 2000).
Other conviction rates have been suggested, for example, Stern (2010) uses unof-
ficial Crown Prosecution Service (CPS) data to argue that the jury conviction rate for
rape was 58% in 2009. The contradictions between these conviction rates could be
linked to differences in what the data include. For example, Stern’s figure includes
convictions for lesser offences, seems to only refer to jury trial outcomes, and is
unclear about whether nonadult victims are included. Stern notes that this lack of clar-
ity and consistency is problematic and should be rectified. Regardless of debates about
statistics, though, Westmarland (2008) argues that focusing only on attrition remains
problematic because it removes the focus from victim treatment.
There is consistent evidence of revictimization by the Criminal Justice System
(CJS; Ellison, 2007), and it is for this reason, we use the term victim rather than survi-
vor (see also Yancy Martin, 2005). Revictimization has been found to occur in several
ways, and these are well discussed in the literature (Ellison, 2000; Jordan, 2001;
Skinner & Taylor, 2009). For example, despite research indicating that victims need to
feel in control (Campbell, 2008); Skinner and Taylor (2009) found they were rarely
consulted on important decisions. Payne (2009) suggested victims are often left unin-
formed, despite policies “guaranteeing” they will be kept up-to-date (see Home Office,
2005). Stern (2010) adds that victims also receive little information about what to
expect from the CJS, leaving them with unrealistic expectations that cannot be met.
There are several documents outlining what victims can expect, for example, “The
Prosecutors’ Pledge”4 (Crown Prosecution Service [CPS], 2005) and “Code of Practice
for Victims” (Office for Criminal Justice Reform, 2005, 2009); however, Payne (2009)
states that victims do not know which list to use. The expectations outlined can also be
problematic, for example, the “Prosecutors’ Pledge” promises victims protection from
“irrelevant” attacks against their character (CPS, 2005); but the victim’s interpretation
of irrelevant may differ from a barrister’s.
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Delays and cancellations at the start of trial have also been identified as traumatic
for victims (Payne, 2009). Although sentence reductions are larger when guilty pleas
occur earlier in the criminal justice process, there is still a 10% reduction in sentence
if defendants plead guilty on the day of trial (Sentencing Guidelines Council, 2007).
This means the defense often risks waiting until then in the hope the victim will with-
draw beforehand (Payne, 2009). Victims can therefore anxiously prepare for trial only
to find that it is cancelled or delayed by legal arguments. There is some good practice
being identified, though; for example, trials are occasionally listed to start in the after-
noon so that the victim is not summoned on the first day (Payne, 2009).
Kelly, Temkin, and Griffiths (2006) also suggest that despite the implementation of
special measures to improve victim experiences, victims are routinely intimidated and
asked about their sexual history, to discredit them and imply the presence of consent.
This may involve the assumption that women with more sexual experience are more
likely to make a false allegation, despite American research indicting evidence to the
contrary (Flowe, Ebbesen, & Putcha-Bhagavatula, 2007). The 1999 Youth Justice and
Criminal Evidence Act restricted use of sexual history unless one of four requirements
is satisfied and a written application is made pretrial. These requirements are that the
evidence is (a) relevant but does not relate to consent or (b) relevant to proving consent
and the “sexual activity” occurred around the same time as the alleged events or
(c) was too similar to the alleged events to be coincidental or (d) relates to questions
raised during the victim’s evidence-in-chief (Youth Justice and Criminal Evidence
Act, 1999). In spite of this, the fact that the meaning of “relevant” and “sexual activ-
ity” is left open to judicial interpretation means that sexual history “evidence” remains
common, mostly occurring without any application (Kelly et al., 2006). In addition,
sexual history evidence may be used to support the defendant’s reasonable belief in
consent (Youth Justice and Criminal Evidence Act, 1999); which may undermine the
restrictions as arguments for consent and the reasonable belief in consent are likely to
be closely linked (V. Baird, personal communication, December 11, 2011).
Attempts at Improvement
Policy reform has attempted to improve CJS responses to sexual violence in England
and Wales. This has involved extending the definition of rape to include marital
(1991) and male rape (1994), and recognizing oral rape as more than sexual assault
(Sexual Offences Act, 2003). In addition, defendants are now required to show any
claimed belief in consent was reasonable, and the jury can assume the absence of
consent in certain situations (Sexual Offences Act, 2003). These situations include
fear of violence, or actual violence, against the victim or a third party; the victim being
unconscious, involuntarily intoxicated or unlawfully detained; or the victim having a
disability that limits their capacity to consent (Sexual Offences Act, 2003). In addi-
tion, if the defendant is found to have intentionally deceived the victim about the
fundamental nature and purpose of the contact, or by impersonating someone (else)
known personally to the victim; then, consent cannot be possible and the defendant
Smith and Skinner
301
must be convicted (Sexual Offences Act, 2003). There has not been any systematic
evaluation about how effective this has been; however, research suggests it has made
little difference to trials (McGlynn, 2010).
Attempts at improving victim treatment include the introduction of special mea-
sures, the Code of Practice for Victims and the 2007 Sexual Violence and Abuse Action
Plan (SVAAP). The Youth Justice and Criminal Evidence Act 1999 introduced special
measures, including using screens, giving evidence via video link or playing the
recorded police interview, removal of formal legal dress, and emptying the public gal-
lery (Home Office, 2005). Kebbell, O’Kelly, and Gilchrist (2007) indicate such mea-
sures...
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