Credibility in context: Jury education and intimate partner rape

Introduction

In England and Wales—as in other common law jurisdictions—jurors are generally expected to make credibility assessments relying on their ‘common-sense’ knowledge and understanding of the world and of human behaviour. As Friedland observes, ‘when jurors exercise their common sense in evaluating a witness’s testimony a full and fair credibility determination is presumed to follow’ (Friedland, 1989). While this broad stance is maintained, the extent to which common-sense knowledge provides an adequate foundation for credibility assessment in sexual offence cases has, nonetheless, been notably and exceptionally called into question. In the landmark case of R v D, ¹ the Court of Appeal significantly accepted that it may be necessary for trial judges presiding in sexual offence cases to give appropriate directions to counter a risk of jurors applying stereotypes and misleading generalisations about behaviour and responses to non-consensual sexual conduct when considering a complainant’s testimony. Subsequent case law has supported this position and a range of illustrative ‘educative’ jury directions that might be utilised by trial judges are currently set out in the latest edition of the Crown Court Compendium (Maddison et al., 2017). These guiding statements importantly address a range of false beliefs and attitudinal biases jurors may hold when they enter into deliberations in rape cases. Notably, however, they offer minimal assistance currently on how jurors may appropriately approach evidence in trials concerned with allegations made against a current or former intimate partner. ² Existing guidance is specifically confined to a single statement that a jury might be usefully warned against inferring—in relation to the substantive components of the offence—either the presence of consent or reasonable belief in consent from the mere fact that a complainant and defendant had a previous consensual sexual relationship. ³

This article sets out to problematise this limited approach and accordingly takes issue with the current scope of educational guidance utilised in sexual offence cases in England and Wales. It does so on the broad premise that the distinctive dynamics and circumstances of intimate partner rape are not widely understood phenomena. Accordingly, jurors’ common-sense credibility assessments run the risk of being (mis)informed by false assumptions regarding common complainant responses in this subcategory of rape cases. Tailored educational efforts that provide proper context for complainant behaviours commonly exhibited in cases of intimate partner rape are thus necessitated, this article argues, to assist jurors in their deliberative task and ultimately to promote just trial outcomes. Judicial directions are additionally defended as the appropriate vehicle to serve this educative purpose.

At the outset, and by way of context, it is relevant to note that Crime Survey data for England and Wales indicate that most rapes are committed by known assailants and within this category a significant proportion of rapes—and possibly a majority—are perpetrated by male intimates. ⁴ For example, aggregated data for the period March 2015 to March 2017 looking at female victims of rape (or assault by penetration) found that the offender was a partner or ex-partner in 45 per cent of cases; someone known to the victim other than a partner or family member in 38 per cent of cases and a stranger in 13 per cent. ⁵ The equivalent information is not available for male victims for comparison as the survey yielded insufficient data to provide robust results. Survey findings from other jurisdictions notably paint a similar picture (Black et al., 2011: 19, 39–40; Cox, 2015; see also Tjaden and Thoennes, 2000a). It is against this backdrop, then, that the introduction of educational jury directions in sexual offence cases in England and Wales and the stereotypical reasoning they are designed to refute fall to be considered and critiqued.

Contesting common sense: Jury education in sexual offence cases

To return to the case of R v D, ⁶ in brief, the appellant was convicted on six counts of raping a woman referred to only as D with whom he had cohabited for several years. The last assault was a particularly brutal affair in which D was reportedly dragged to an upstairs room and raped vaginally and anally. D had had an opportunity to report this incident and previous rapes to the police when they called at the couple’s home that same evening but had instead chosen to disclose the assaults when speaking to a single officer two days later. When quizzed about the timing of her complaint during cross-examination, the complainant explained that she had felt too ashamed and embarrassed to report the offences initially as there were several officers present and ‘the atmosphere had not been right’. One ground of appeal was an objection on the part of the defence that the presiding judge had exceeded legitimate comment in describing, in his summing up to the jury, how the complainant may have felt when confronted by several police officers in whom she could not confide. The Court of Appeal, in turn, upheld the trial judge’s entitlement to make comments upon the way evidence in the case was to be approached where there was a danger that the jury might reach an unjustified conclusion without an appropriate warning. ⁷ In the instant case, this legitimately entailed informing the jury that a delayed complaint did not necessarily mean that the allegation was false and extended to making specific reference to the feelings of shame and embarrassment that might inhibit disclosure. Providing additional appellate guidance, Latham LJ clarified that any observation by the judge must be ‘uncontroversial’ in the sense of furnishing jurors with accepted facts and form part of a balanced exposition of the cases for the prosecution and the defence to ensure fairness to both sides. In other words, the Court of Appeal confirmed that a trial judge could appropriately warn a jury against approaching the evidence with any preconceived assumptions but must not give the impression of endorsing argument for one side at the expense of the other. ⁸

Subsequent to this decision, the Crown Court Benchbook, which superseded former specimen directions in providing guidance to trial judges when summing up cases in the Crown Court in England and Wales, dedicated a specific chapter to ‘alerting the jury to the danger of mistaken assumptions’ in sexual offence cases (Judicial Studies Board, 2010). Its pages, penned by Pitchford LJ, identified several subjects for stereotyping in addition to delayed reporting which could potentially lead a jury to approach a complainant’s evidence with ‘unwarranted scepticism’. ⁹ These were set out in the form of ‘illustrative directions’ that judges might adapt when dealing with evidence in individual cases, accompanied by a proviso that the precise terms of any advice issued to jurors—as well as the decision to issue advice at all—were entirely for the judgement of the trial judge. ¹⁰ In Miller, the Court of Appeal approved this broad approach and specifically endorsed the following passage from the Benchbook:

The experience of judges who try sexual offences is that an image of stereotypical behaviour and demeanour by a victim or the perpetrator of a non-consensual offence such as rape held by some members of the public can be misleading and capable of leading to injustice. That experience has been gained by judges, experts in the field, presiding over many such trials during which guilt has been established but in which the behaviour and demeanour of complainants and defendants, both during the incident giving rise to the charge and in evidence, has been widely variable. Judges have, as a result of their experience, in recent years adopted the course of cautioning juries against applying stereotypical images how an alleged victim or an alleged perpetrator of a sexual offence ought to have behaved at the time, or ought to appear while giving evidence, and to judge the evidence on its intrinsic merits. This is not to invite juries to suspend their own judgement but to approach the evidence without prejudice. ¹¹

Evidence relating to physical resistance and injury receives similar treatment. Defence lawyers will commonly present the absence of physical struggle on the part of a rape complainant as behaviour denoting consent, invoking the unfounded behavioural assumption that the ‘normal’, instinctive reaction of any person in this situation would be to fight back (see for example, Lees, 2002; Smith, 2018; Smith and Skinner, 2017). To counter this false stereotype, the relevant direction stresses that different people may respond to unwanted sexual activity in different ways, acknowledging that some individuals, while they do not consent, may be unable to physically resist whether through fear or personality (for discussion see Galliano et al., 1993; Sugar et al. 2004). Other directions are designed to counter possible gender stereotyping based, for example, around a complainant’s clothing or drinking of alcohol by underscoring that wearing ‘revealing’ clothing or going out at night and getting drunk does not mean that a person is inviting or willing to have sex. Another warns against assuming a man in an established sexual relationship would never resort to sexual activity with any other person, presumably to challenge the spurious notion that men rape because they are sexually deprived.

Collectively, these illustrative directions—alongside Court of Appeal endorsement—constitute welcome acknowledgement of the threat that unchallenged ill-informed behavioural assumptions pose to the fair administration of justice in sexual offence cases. Furthermore, they provide evidence of an equally welcome commitment to counter extra-legal biases that may have an untoward influence on jury decision-making. Currently lacking, however, as previously flagged, is explanatory guidance on generalisations or misconceptions that might arise specifically in connection to allegations of rape by a current or former partner. One might consequently conclude that no special considerations apply in these cases that warrant specific guidance to jurors. An alternative reading, however, and one advanced below, is that the distinct features and dynamics of intimate partner rape—while recognisable to some professionals– are insufficiently familiar in the public domain. Divorced from context and left unexplained, common complainant behaviours are consequently at risk of misinterpretation and biased evaluation.

Contextualising intimate partner rape

Compared with other categories of rape, it is true to say that intimate partner rape remains relatively understudied and has, in addition, generated limited popular discussion. Indeed, Heenan has commented that the unspoken response to this area of sexual offending has much in common with a whispering campaign—’known about by many, but with few willing to address it openly’ (Heenan, 2004). Such research as exists, has, however, done much in recent years to further understanding of rape perpetrated in marriage and other intimate relationships. One of the key findings to emerge from this body of research—based typically on the first-hand accounts of survivors—is the often long-term and repeated nature of victimisation that occurs in women’s established intimate relationships with men. Rape by an intimate partner may be an isolated incident for some women. For a significant number of women, however, it is a trauma that they relive multiple times in relationships that may be relatively short-lived or stretch over years. For example, in separate ground breaking studies, American researchers Russell and Finkelhor and Yllö interviewed women who had experienced rape in their marriages and found that as many as half had been raped 20 times or more by their husbands and rape was a repeated occurrence for the majority (Finkelhor and Yllö, 1987; Russell, 1990). Subsequently, Bergen conducted interviews with American women raped by a male partner and found that some women were assaulted ‘so frequently they lost count’ (Bergen, 1996: 19) while the rates of multiple assaults (physical and sexual) reported by women in another US survey prompted the researchers to conclude that ‘much of the violence perpetrated against women by intimates is chronic in nature’. ¹² Their findings indicated that just over half of the women raped by an intimate partner spoke of multiple occasions when they were victimised by the same man (Tjaden and Thoennes, 2000a). Such findings are consistent with those of studies conducted elsewhere, although typically on a smaller scale. For example, an Australian study based on in-depth interviews with 21 survivors of intimate partner rape included accounts of women who had been raped once by their partner and others who had been raped repeatedly over a space of months or years (Parkinson and Cowan, 2008).

This same body of research has, importantly, also brought to light the interconnections between sexual violence in marital and other intimate relationships and other forms of domestic abuse (Basile and Hall, 2011; Bennice and Resick, 2003; Bergen, 1996; Campbell and Soeken, 1999; Finkelhor and Yllö, 1987; Parkinson and Cowan, 2008; Russell, 1990). There is evidence that partner rape is more likely in battering relationships, for example, although sexual violence is sometimes a feature of a relationship in which there is little or no other physical violence (Finkelhor and Yllö, 1987; McOrmond Plummer et al., 2014). Many of the women surveyed by Russell, for instance, experienced rape and battering unrelated to the rape(s) while a smaller proportion experienced rape only (Russell, 1990). Other investigations of the correlates of partner abuse indicate high rates of concurrence of partner rape and non-sexual physical assault (Basile, 2008; Campbell and Soeken, 1999; Coker et al., 2000; Randall and Haskell, 1995). By way of example, Haskell and Randall found in their Canadian study that half of the women in the random sample of respondents who reported physical assault in their intimate relationship with male partners were also forced to have sex by these same men. Some women in the study experienced sexual assault in isolation. ¹³ While the relationship is still being studied, it is becoming clear, in addition, that intimate partner rape in many cases forms part a complex pattern of coercive and controlling behaviours aimed at establishing and maintaining women’s subordination and dependency in relationships. ¹⁴ Studies thus relatedly suggest that women whose partners are controlling psychologically, verbally or economically are more likely to report being raped, physically assaulted and/or stalked by their partners. ¹⁵

While each woman’s experience is unique, contemporary research has importantly also extended knowledge and understanding of women’s responses to the violence and abuse they experience at the hands of intimate partners. ¹⁶ There is, for example, a greater appreciation—at least amongst researchers and some professionals—of the complex situational and interpersonal influences that help to explain why women can become entrapped in relationships with the men who rape them and/or subject them to other forms of abuse. It is thus recognised that women often stay in relationships with abusive partners for fear that an attempt to break free might lead to an escalation in violence. Such fears are well-grounded, moreover, as women are known to be at heightened risk of further violence—including fatal injury—when they seek a separation. Indeed, some study findings significantly indicate that men who engage in sexualised violence are more likely to issue threats kill or severely injure their partners—and to carry out their threats—than men who perpetrate non-sexual physical abuse only. ¹⁷ Safety fears will also often extend to children and other family members or friends, who can be the target of direct threats (Anderson and Saunders, 2003). Hence, women may make the rational calculation that the safest option (for them and for those closest to them) at a given moment in time is to remain in a relationship rather than to seek a separation (Griffing et al., 2002; Stark, 2009).

Alongside safety fears, economic factors have also been shown to assume major importance as women’s choices are inevitably seriously constrained—potentially to vanishing point—where they are dependent on their partner financially or for somewhere to live (Barnett, 2000; Coker, 2002). A woman may stay in a violent and abusive relationship, facing intolerable conditions, because her financial circumstances at the time dictate no other feasible option. ¹⁸ A lack of employment, absence of affordable childcare and the fact that leaving all too often exposes women to a risk of homelessness (Women’s Aid, 2018) thus constitute some of the many structural barriers that impose severe limitations on women’s options in seeking safety (see Randall, 2004). The plight of marginalised women may be further compounded by, inter alia, material conditions of social deprivation (Slabbert, 2017), immigration status, ¹⁹ disability (Thiara et al., 2011), language difficulties and a lack of awareness of available advocacy and support services for survivors of abuse.

Formal systems, including children’s protective services, the police, legal process and health professionals, have further been shown to act as both facilitators and barriers for women in this situation (Evans and Feder, 2016; Parkinson and Cowan, 2008). For example, women may remain in relationships and conceal a partner’s abusive behaviour for fear of having their children removed from their custody (Wolf et al., 2003). Meanwhile, as Kelly et al. observe, ineffective responses from the police or the courts will prompt women to respond differently than if they received the legal help they were seeking, ‘perhaps staying in a relationship and “managing” the abuse as best they can’ (Kelly et al., 2010: 76).

Beyond such factors, it is recognised that women may deny or minimise the harms they are subjected to because of intense feelings of stigma and shame (Barnett, 2001; Wall, 2012) or self-blame or because they still have an enduring emotional attachment to their partner (Bergen, 1996: 32; see also Parkinson and Cowan, 2008). A change in perspective may take place over time when it becomes clear that the abuse is not going to cease or there is an escalation in the severity of abuse experienced (Anderson and Saunders, 2003: 185). Social support—from friends, family and community—may provide the catalyst for a shift in thinking. Conversely, women who disclose rape or other abuse at the hands of an intimate partner and are disbelieved, are treated unsympathetically, or even counselled to ‘put up with’ the abuse (e.g. to honour the ‘sanctity’ of marriage) may be deterred from taking evasive action. ²⁰ Even with support, there is recognition in the literature that the effects of long-term stress and trauma associated with intimate partner abuse can be debilitating and can hinder women in their efforts to extricate themselves from a relationship and reconstruct their lives (Barnett, 2001; Herman, 2015; Kelly et al., 2010: 76; Riggs et al., 1992). Survivors of intimate partner rape have, for example, spoken of their betrayal, humiliation and shock in the immediate aftermath of an assault, while the documented longer-term adverse mental health effects for some women include depression, severe anxiety, post-traumatic stress disorder and suicidal ideation. ²¹

Notably, the same impacts and dynamics that can keep women trapped in relationships with abusive male partners can also militate against women disclosing offences to the police or to other external agencies. It is understood that the vast majority of sexual assaults are never reported and there is increasing evidence that the same holds true for domestic abuse in various guises. The most recent data from the Office for National Statistics suggest that one-fifth of domestic abuse survivors contact the police (Office for National Statistics, 2018). Complainants of intimate partner rape may consequently have endured a history of domestic violence and abuse (physical, sexual, psychological, economic) but not previously reported relevant offences, alerting the police only when their partner’s actions extended to rape or when the impulse for protection and/or justice outweighed the perceived risks/costs of engaging with the criminal process. Reasons for non-reporting will obviously reflect individual circumstances but interrelated barriers to disclosure documented in the literature and supported by Crime Survey data (Office for National Statistics, 2014) include (but are not limited to) fear of retaliation (Gover et al., 2013; Hoyle and Sanders, 2000), a desire to protect privacy (Felson et al., 2002), stigma and shame (Parkinson and Cowan, 2008; Wall, 2012), economic dependency (Hoyle and Sanders, 2000; Novisky and Peralta, 2015), worries relating to the welfare of children, ²² previous negative experiences with the police and/or wider legal process (Gover et al., 2013), a commitment to reconciliation with an abusive partner and a desire to protect a husband or partner from criminal sanction (Felson et al., 2002; Hoyle and Sanders, 2000; Logan et al., 2015).

Added to this, and for many of the same reasons, women who have experienced partner abuse who do report offences can remain deeply ambivalent about the benefits of supporting or pursuing criminal intervention and/or come under extreme emotional pressure to ‘drop’ allegations (Bennett et al., 1999; Bonomi et al., 2011; Ellison, 2002; Hoyle and Sanders, 2000). Lengthy delays in cases reaching court and inadequate provision of specialist support and advocacy add to this picture (SafeLives, 2018). Consequently, it is common for women who come into contact with the police to subsequently withdraw complaints or otherwise disengage from a prosecution down the line (Her Majesty’s Inspectorate of Constabulary, 2014). Indeed, high rates of complainant retraction (coupled with trial non-attendance) are cited as one of the most pressing—and seemingly intractable—challenges facing the criminal justice process in responding to intimate partner abuse. ²³ In the context of intimate partner rape prosecutions, then, complainants may have made a complaint—or multiple complaints—against their partners or former partners in the past detailing violent assaults or psychological abuse, for example, which were subsequently reneged.

Extended jury instructions—a proposed step in the right direction

It is against this broad backdrop that a persuasive case for dedicated guidance in cases involving allegations of rape against a current or former intimate partner emerges, I propose. As outlined, the current set of illustrative directions were introduced as a mechanism to assist jurors to better understand the evidence presented to them in sexual offence cases. This move entailed explicit recognition that juror common knowledge about rape and the varied, often complex, behaviour of survivors was limited and, moreover, likely to consist of erroneous stereotypes or unjustified beliefs about ‘typical’ complainant responses. Misplaced or misleading behavioural assumptions were identified as a threat to accurate fact-determination, in other words, and educational directions embraced as a necessary antidote.

The same underpinning rationale can be applied to an extension of educative efforts to behaviours likely to arise in cases of intimate partner rape. The complexities, dynamics and impact of abuse perpetrated in intimate relationships are not so widely understood that jurors can be safely assumed to have the necessary knowledge to assess complainants’ testimony fairly, free from biased assumptions. The proclivity of defence lawyers to invoke stereotyped generalisations incongruent with many women’s lived experiences as a way of impugning complainant credibility adds to the picture. Unless complainant behaviours are placed in context a danger arises that jurors will make assessments clouded by misperceptions and faulty logic, leading to unjust conclusions. Specifically, as outlined, misconceptions are liable to arise and exert a potentially distorting influence where a complainant alleges rape but has

Rather than keep jurors ‘in the dark’, potentially labouring under false apprehensions (e.g. ‘it couldn’t have been rape because she wouldn’t have stayed’), suitably drafted directions would provide jurors with the information they need to properly evaluate the factual credibility of evidence given by complainants. Jurors would be alerted that staying in an abusive relationship or failing to report (non-sexual) abuse are not reliable indicators of whether abuse was taking place as both reactions may be explained by a range of factors, including fears for safety, economic dependency, lack of a feasible escape route, depending upon the facts of the case in hand. Similarly, jurors would be made aware that a retraction does not necessarily mean that the originating allegation was false as retractions can be the product of fear, shame and stigma and other pressures. Behaviours that are likely to be perceived as perplexing or ‘suspect’ would be rendered more comprehensible as a result, providing a counter to defence interpretations and aiding jurors in their deliberative task.

Precise wording would be for others to formulate. However, in keeping with Court of Appeal guidance, any novel direction intended to serve a context-giving function would need to be balanced in fairness to the defence and be uncontroversial (i.e. confined to accepted facts). While a check on the information that may be contained in educative instructions, it may be assumed that trial judges—by virtue of their trial experience—are familiar with the (undisputable) fact that survivors of intimate partner rape sometimes remain in relationships with the men who abuse them, elect not to report violent incidents or patterns of controlling behaviour and/or withdraw their support from a criminal prosecution after reporting offences and do so for some of reasons discussed above. Accordingly, it would be open to the Judicial College to draw upon this experience to produce illustrative jury directions that are reflective of the empirical realties of partner rape in a suitably balanced way. The onus would be on those responsible for delivering compulsory training to judges who sit in sexual offence cases to raise awareness of the new directions and to promote their usage. As is current practice, trial judges would then be free to adapt available guidance to reflect the factual context, evidence and arguments raised by the prosecution and defence in individual cases.

Ultimately, the beneficial effect of a move in this direction would, I propose, be to promote more accurate, less prejudicial fact-determination in this subcategory of rape cases by potentially increasing the reliability of judgements of complainant credibility. Where complainant testimony is unduly discounted or rejected due to ill-informed stereotypical generalisations complainants are unfairly discredited and the fact-finding function of the trial process necessarily subverted. As Ward observes, complainants experience an ‘epistemic’ injustice:

A jury who disbelieves or doubts a witness on the basis of some unwarranted stereotype does her a serious injustice—not on a par with a wrongful conviction followed by a long prison sentence, but a grave wrong nonetheless. (Ward, 2009: 94)

Further considerations that warrant comment are of a more general nature.

A reflection on current directions

Beyond the issues discussed above, there is an additional observation to be made regarding the application of current directions in cases of intimate partner rape. Study findings generally provide support for the ability of educational directions to inform jurors about disparate reactions to rape. However, guidance issued to mock jurors on the absence of physical resistance was found to have limited educational efficacy in a study by Ellison and Munro. ³³ Despite being informed that that there can be good reasons why victims of rape do not fight back physically, including shock and fear, the researchers found that mock jurors overall maintained a commitment to the (false) notion that the instinctive reaction of someone facing sexual assault would always be to offer physical resistance (Ellison and Munro, 2009: 372; see also Ellison and Munro, 2013). Close analysis of recorded deliberations revealed that study participants appeared to fail to make the connection between the guidance given (whether by a judge or an expert) and the case they were presented with, which involved a defendant and complainant who knew each other. More specifically, they associated the type of ‘freezing’ response described in the guidance with a ‘blitz’-type rape scenario, characterised by a sudden surprise attack by an unknown, armed assailant, which jurors accepted would provoke extreme fear. In contrast, mock jurors questioned how fearful a complainant would be if she knew the man she claimed assaulted her and were thus generally unwilling to countenance that a woman in this situation might have ‘frozen in fright’.

These findings further underscore the importance, noted above, of linking information in directions to the factual circumstances of the case in hand. It is amply demonstrated by relevant research that complainants of intimate partner rape will often offer no physical resistance during assaults, in many instances, due to fear instilled by their partners (Bergen, 1996; Finkelhor and Yllö, 1987; Russell, 1990). It is therefore appropriate that trial judges include this information when directing jurors on the reasons why a woman raped by her partner or former partner may not have physically struggled and/or sustained defensive injuries. The current ‘example’ direction simply states that some people do not resist physically ‘through fear or personality’, as previously mentioned, but unsatisfactorily fails to confirm that this holds true for complainants intimately acquainted with their alleged attackers. Again, context is key.

Concluding comments

Educational jury directions were adopted in England and Wales with the aim of promoting fairer, more accurate fact-determination in sexual offence cases. In this article I have argued that a lack of understanding of common complainant behaviours in cases of intimate partner rape represents on ongoing threat to the fair evaluation of rape testimony and set out how dedicated jury directions might be beneficially utilised as a counter measure. It is, nonetheless, important in closing to acknowledge the limitations of this strategy. As highlighted in foregoing discussion, sexual violence in intimate relationships remains, even now, relatively ‘hidden’, rarely openly discussed or debated and is the focus of limited targeted research. Noting advances in separate spheres of domestic violence and sexual assault, Randall observes, for example, that the specific problem of marital rape and sexual violence in intimate relationships remains under the radar:

Much of the research and policy on domestic violence has not adequately addressed the fact that many women are also forced into sex by their physically abusive partners. Similarly, public education and programmes addressing domestic violence typically focus on physical assaults, threats and even emotional abuse, while not drawing sufficient attention to the fact that in too many cases sexual violence is also a component of this violence. (Randall, 2017: 12)