Observing Court Responses to Victims of Rape and Sexual Assault

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 Existing literature often relies on interviews, is outdated by policy, or ignores underlying assumptions.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 identifying problematic practices rather than their underlying causes; with the research that does attempt to do this now being outdated by important policy changes (see Ellison, 2001).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 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 identified 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 unofficial 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 clarity 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 survivor (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 uninformed, 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.

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 withdraw 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 afternoon 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 activity” 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 addition, 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 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 measures, 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 gallery (Home Office, 2005). Kebbell, O’Kelly, and Gilchrist (2007) indicate such measures successfully reduce anxiety in victims; however, others argue that delivery remains inconsistent, and some legal personnel believe juries prefer live evidence to video evidence so such tactics may be detrimental for convictions⁵ (Payne, 2009; Stern, 2010). The Code of Practice for Victims (Office for Criminal Justice Reform, 2005, 2009) also attempted to improve victims’ experiences by setting out a minimum standard of service they should expect. These standards include being kept updated and referred to Victim Support; although research suggests implementation is “patchy” (Payne, 2009). The 2007 SVAAP represents a more holistic attempt at improving responses to rape including introducing training for all prosecution barristers dealing with sexual violence cases (Home Office, 2007). Each court circuit can undertake their own training, as long as it is accredited by the CPS and/or Bar Council. It usually involves sessions about CPS expectations of prosecutors, how to prepare for trial and how to make the appropriate pretrial applications (see Western Circuit, 2011). In addition, training can involve a psychological perspective on rape myths and information about SARCs,⁶ intermediaries and the use of expert evidence (see Western Circuit, 2011). Finally, training can include judicial perspectives on prosecuting rape, which are likely to be influential because of the authority that judges have. Defense barristers, who are the most commonly criticized, do not always receive training, though, and training may be perceived by recipients as ineffective (Smith, 2009). Finally, improvements have also been attempted through providing judges with guidelines about directions to the jury (see Judicial Studies Board, 2010). These directions can include what have been called “myth-busters,” which were designed to try and highlight some of the realities of rape in a balanced and informative way so as to help jurors look beyond the common stereotypes (see Judicial Studies Board, 2010).

Large-scale government reviews by Payne (2009) and Stern (2010) concluded that policies are commendable but not fully effective. Payne’s review asserted the need to tackle unrealistic expectations and delays. Stern added to Payne’s comments by highlighting that victims misunderstand the role of the prosecution barrister. She therefore discussed the introduction of victims’ lawyers to represent the victim as the defense barrister represents the defendant (Stern, 2010). It has been suggested that a victim’s lawyer could act as an intermediary during questioning to, at least partially, address manipulation (Taslitz, 1999). The most comprehensive form of victim’s lawyer, proposed by Wilson (2005), could provide advocacy and representation throughout the whole legal process, including sentencing and compensation decisions. Legal personnel would probably try to reject this because of the perceived impingement on defendants’ rights and so we may benefit from exploring the role of victim’s lawyers in other countries, where the changes have been successfully brought in despite any potential objections. England and Wales are the only nations in the original 15 European Union member states not to provide victims with some sort of independent legal representation; suggesting it does not contravene access to fair trial (Raitt, 2010). The role of victim’s lawyers discussed ranges from simply ensuring that sexual history evidence rules are adhered to, as in Ireland (Kelly & Lovett, 2009; Stern, 2010), to having a role comparable to defense barristers when the victim becomes an auxiliary prosecutor in Germany (Kelly & Lovett, 2009; Sanders & Jones, 2007).

The debate about these lawyers could be enhanced by looking at literature on victims’ rights. Defendants’ rights have traditionally been considered absolute because of their foundations in civil liberties, for example, the right to fair trial is cemented in the European Convention of Human Rights (ECHR; Londono, 2007). However, “Convention law recognizes that the rights of the defendant may sometimes be circumscribed by the need to respect the rights of victims and witnesses” (Powles, 2009, p. 328). For example, the European Court ruled that banning defendants from representing themselves in sexual violence cases in England and Wales did not impinge on fair trial (Londono, 2007). Although there is not a specific set of human rights for victims, they are arguably enshrined in the ECHR (Doak, 2008). Articles 3 and 8 of the ECHR acknowledge the need to protect against degrading treatment and invasions of privacy (Londono, 2007). This requires effective laws and investigations to protect the public from crime, and protection against traumatic trial experiences (Londono, 2007). The European Court has ruled that trials do sometimes become so intimidating or intrusive as to breach Articles 3 or 8 in their own right and so courts must try harder to ensure that procedures are less traumatic (Doak, 2008; Londono, 2007).

It could be argued that as the right to fair trial is relatively “negotiable” while Article 3 is absolute, we should prioritize victims’ rights (Londono, 2007). Despite this, defendants’ rights are important and it seems that “no one set of rights should prevail, and both sets of rights should be afforded equal respect” (Doak, 2008, p. 247). It therefore appears that measures, such as victim’s lawyers, aiming to improve victim experiences in court have a basis in civil liberties (Raitt, 2010). Despite these arguments, the victim’s lawyer did not make it into Stern’s (2010) final recommendations and was ignored by the government response to the review (Cabinet Office, 2011, p. 3). However, in this document Theresa May, the Home Secretary and Equalities Minister, highlighted that responses to rape are “a long-term issue that needs long-term solutions” (Cabinet Office, 2011, p. 3). The document also recognized the need for further improvement of CJS responses to victims, with the aim “that every victim be treated with dignity” (Cabinet Office, 2011, p. 17). This, it argues, involves ensuring “that every investigation and that prosecution be conducted thoroughly and professionally, without recourse to myths and stereotypes” (Cabinet Office, 2011, p. 17). Such a response seems positive and should be celebrated if it leads to concrete improvements. Having said that, there is a notable absence of discussion about expectations of defense barristers, and it is unclear whether the quote above refers to the general act of prosecution or merely the prosecutor not referring to myths.

Explaining Policy Ineffectiveness

In England and Wales, we cannot simply hope the effects of policy will eventually kick in, as countries such as Australia, Canada, and the U.S. report similar problems despite implementing policies around 10 years earlier (Daly & Bouhours, 2008). Research attempting to explain policy ineffectiveness has suggested causes such as a focus on efficiency and targets (Temkin, 1999) and a failure to properly monitor CJS agencies (Jordan, 2001). A lack of sanctions for falling short (Skinner & Taylor, 2009) and the inherent tension between the roles of CJS professionals and victim needs have also been suggested (Jordan, 2001; Kelly et al., 2006). Skinner and Taylor (2009) also suggest it takes more time, money, and effort to transform entrenched discourses and cultures than policy “solutions” may convey. Crow and Gertz (2008) have identified court cultures at local, regional, and national levels, and Ulmer and Johnson (2004) believe they influence how courts are run at least as much as formal rules. Those who do not comply with cultural “norms” may be perceived very negatively and are often ostracized by their colleagues, as reputation appears to be highly important among legal personnel (Hall, 2009). In addition, these cultural norms are considered part of professional conduct, and so legal personnel aiming to be successful have an incentive to follow them (see Ostrom, Hanson, Ostrom, & Kleiman, 2005). One example of court culture is judicial passivity, which Ellison (2000) thought to be rife because too much intervention in trials has been grounds for successful appeal, and this reflects badly on the judge. Court cultures may therefore act as barriers to policy implementation.

Rape myths are another common explanation. These stereotypes are held by both the public and CJS personnel, and result in victims being considered at least partly culpable if they are not unequivocally blameless and visibly upset (Ellison & Munro, 2009; Rose, Nadler, & Clark, 2006; Temkin & Krahé, 2008). In reality, victims react differently and should never be held responsible for their rape (Temkin & Krahé, 2008). Attempts at educating legal personnel about rape myths have been identified by Stern (2010) as failing to be fully effective and having the potential to perpetuate stereotypes if not properly formulated. For example, in previous interviews with legal personnel, all commented that they had not found training useful, and one stated that training taught him to be suspicious if a victim was visibly distressed (Smith, 2009). Here, training was presumably aiming to show that not all victims react the same to rape; however, the barrister went away with a new stereotype about “real” victims. Rape myths may also be perpetuated by the logic of the law, which compares cases with a hypothetical “ideal” case (Hudson, 2002). For example, Temkin and Krahé (2008) argue that the idea of a stranger violently raping a “virtuous” woman is often perceived as the norm against which to measure real situations. Attempts to explain low convictions rates solely with rape myths have been problematized, though, because the number of acquaintance rapes gaining conviction is higher than expected (Lovett, Uzelac, Hovarth, & Kelly, 2007) and victims of other crimes are also harshly cross-examined⁷ (Brereton, 1997). The problems faced by sexual violence victims are therefore not solely about rape myths, and it is important to explore the context of the CJS to move forward (Yancy Martin, 2005).

Part of this context is that the CJS is made up of organizations, each with their own objectives and priorities. Yancy Martin (2005), a U.S. researcher, argues that the need for legal personnel to fulfill their roles within these organizations is likely to be prioritized over any personnel empathy for the victim and so acts as a barrier to good practice. For example, she points out that the defense role requires barristers to perceive the victim as the accuser, with the defendant having every right to challenge the “accusation.” This is linked to another part of this context, the adversarial system.

Adversarialism

Adversarial systems are “essentially combative and competitive” (Ellison, 2000, p. 45), with advocacy manuals referring to trials as battles between “warriors” who must “break” and “butcher” the witness (Wellman, 1997). Although Wellman (1997) is now 15 years old, barristers in their mid- to late 30s would have been educated using these principles and more recent manuals retain a sense of manipulating evidence (see Bergman & Berman-Barret, 2008). Taslitz (1999) suggests this creates “macho adversarialism,” which promotes rationality and aggression (see also Collier, 1998); encouraging routine victim degradation because the focus is on winning rather than justice (see also Ellison, 2000).

Although some victims find that the trial was better than they expected (Kebbell et al., 2007); barristers frequently confuse, coerce, and silence victims (Taslitz, 1999). Ellison (2000) links this to questioning techniques such as extensive repetition, frequent interruption, closed questions, and demanding precise recollection of peripheral details (Ellison, 2000). Other authors refer to the use of irrelevant (Heenan & McKelvie, 1997) or leading questions, undertaking “pining out”⁸ and gradually refining witness’ comments to coincide with their argument (Kebbell et al., 2007). Ellison (2000) and Smith (2009) suggest these techniques are “justified” by barristers and judges in reference to their client’s interests and judges’ ability stop anything improper. However, Ellison (2001) questions the latter because protecting witnesses is often perceived as contradicting the judicial role of neutral umpire; and judges tend to have biased views of what is improper as many were originally defense barristers. Improper questioning is also supposedly prevented by the various Codes of Conduct, for example that of the Bar Council.⁹ The two most discussed aspects of the Bar Code are the need to “promote and protect fearlessly by all proper and lawful means, his lay client’s best interests” and the importance of not causing undue harm to witnesses or knowingly misleading the jury (see Bar Council, 2004; Sanders & Jones, 2007). Lees (1996) and Burton, Evans, and Sanders (2007) observe that such Codes of Conduct are frequently breached without objection, though; possibly because the need to promote their client’s interests is perceived as overshadowing the demand for consideration of victims. Codes alone cannot guarantee ethical behavior; as there are always loopholes and colleagues are unlikely to become whistle-blowers (Nicholson, 2006). To ensure ethical behavior, Nicholson (2006) therefore argues that barristers must develop a moral character that encourages them to behave ethically.

Alternative types of justice

The problems identified in adversarialism make it important to compare responses with inquisitorial systems in continental Europe. Inquisitorial trials do not involve juries, with judges evaluating a dossier of evidence instead (Doak, 2008). Trials are therefore perceived as official enquiries rather than battles, and evidence is mostly written rather than oral because judges are trusted to ignore “hearsay” (Tak, 2003). This is considered advantageous for victims because they do not usually attend trial, although they may be asked supplementary questions in a private, pretrial hearing (Ellison, 2001). However, Dutch defense barristers have been accused of improper questioning during pretrial hearings, with the examining magistrate failing to intervene (Ellison, 2001). In addition, while countries with adversarial systems are the only countries with rape conviction rates classed as “low”; some inquisitorial countries also have worrying success rates¹⁰ (Kelly & Lovett, 2009). This may reflect the fact that adversarial and inquisitorial systems are not as dichotomous as traditionally stated¹¹ (see Hodgson, 2008).

Current understandings of justice and how it should be achieved have also been critiqued using alternative understandings such as parallel justice and feminist jurisprudence. Parallel justice argues for a more holistic understanding that does not rely solely on the CJS. Instead, it suggests that victim justice should be addressed by a parallel system, decoupling it from offender justice (Westmarland, 2008). This is because one institution cannot provide 100% of victim support and a more holistic, multiagency approach is required (Koss, 2006; Westmarland, 2008). Parallel Justice is therefore thought to provide an alternative concept of justice in which support is available regardless of what, if anything, is happening with the offender (Herman, 1999; Westmarland, 2008).

Nicholson’s (2000) notion of feminist jurisprudence can also provide an alternative to current responses. She uses this concept to critique the Enlightenment tradition of legal positivism around which the CJS is currently centered. This tradition prioritizes “expert” and scientific evidence over anecdotal evidence (Kelly, 2010), which may disproportionately affect rape victims whose trials often centre on anecdotal evidence about consent. Nicholson (2000) argues this positivist focus is problematic because the law should acknowledge the nuances of reality and barristers should actively focus on an ethic of care rather than winning (see also Ellison, 2000). Although Nicholson’s post-positivist perspective may be controversial to some, it is with this notion of an ethic of care that we wish to critique current responses to sexual violence.

Method

We used qualitative court observations because the research required rich data that recognized the complexities of trial processes. Court observations do not rely on retrospective or anticipatory accounts and can explore issues that are too familiar for those being researched to recognize (Foster, 2006). They also allow an exploration of controversial details that interviewees may omit (Sarantakos, 2005). Observations do have several limitations, though, for example, personal or procedural reactivity (Robson, 2004). Several judges glanced at the researcher while speaking so her presence may have influenced them; however, legal personnel are frequently observed so it is unlikely they significantly altered their actions. Our personal beliefs also inevitably influenced which details were recorded, although we actively looked for evidence of alternative perspectives to alleviate this (Darlington & Scott, 2002; Foster, 2006). Another limitation is that observations cannot explore meanings with the participants (Darlington & Scott, 2002); however, our previous interviews with legal personnel explored many of these meanings.

It is a criminal offence to bring recording equipment into court (Her Majesty’s Courts Service, 2009) and so the researcher made extensive notes, featuring as many direct quotes as possible. Although Lees (1996) gained access to court transcripts for her research, we did not attempt to negotiate such access because of time, financial costs, marginal possibility of success, and lack of other information such as body language or voice tone. To focus the notes, we consulted existing literature and recommendations from the International Commission of Jurists (ICJ; 2002) and Legal Momentum (2005). Demographic information on those involved, the nature of the prosecution and defense cases, and details about the indictment were therefore noted (ICJ, 2002; Legal Momentum, 2005). In addition, any delays, incidents occurring between court sessions, and what was said during the trial were also written down.

Purposeful sampling was used; selecting a court based on regional court conviction rates for rape and attempted rape. These statistics are available in Appendix and show that the Western circuit was interesting as it is the only region where conviction rates have declined since 2003. Out of these Western circuit courts, we then chose a large Crown Court in which sexual violence trials are fairly common. Within this Crown Court, trials were then selected using opportunity sampling, as the researcher attended any adult sexual violence trial that started as soon as possible after the end of the previous trial. Six trials were observed over a 3-month period. Although small samples are often critiqued as being ungeneralizable, qualitative research tends to focus on analytic rather than statistical generalization (Curtis, Gesler, Smith, & Washburn, 2000). This means that research explores how findings fit with wider theories rather than generating predictive rules for whole populations, making small samples less problematic (Curtis et al., 2000). In addition, six trials provided a lot of very rich detailed information, especially since trials tended to involve up to 4 days of observation. The trials were varied in the contexts and characteristics of those involved. Five trials involved a rape charge; however, they also featured secondary charges such as sexual assault or inciting a family member to sexual conduct. The legal personnel were mostly White, middle-class males, although there were some female barristers and one female judge. The victims were mostly White women, although one trial featured a White male victim with severe learning difficulties.

The research focus on critically assessing legal cultures from an explicitly post-positivist perspective meant that critical discourse analysis (CDA) was useful (van Dijk, 2003). CDA explores how power is produced, legitimated and challenged in “texts,” which are social actions and images as well as written words (Fairclough, 2001). The data were therefore analyzed in the context of other texts and wider discourses (Wodak, 2004), and we identified how different actors were empowered or disempowered (Fairclough, 2001), as well as any challenges to dominant discourses (van Dijk, 2003). CDA has limitations, for example, distinctions between the interpretations of the researcher and the intended audience are often ignored (Paltridge, 2006). Although we attempted to interpret events with legal personnel, witnesses and the jury in mind, the interpretations presented here are ultimately our own.

Problems and Priorities: Observations on Sexual Violence Trials

The emergent themes from the data were routine delays, the notion of “rational” behavior, extreme interpretations of “beyond reasonable doubt” (BRD) and “burden of proof,” and winning as priority.

Routine Delays

The practicalities of trial were potentially very stressful for victims, especially in relation to delays while waiting to give evidence. All six trials featured delays, ranging from 1 hr in T1 to over a day in T3; with the mean length of delay being 4 hr per trial. Most of these occurred more than 2 days, with an average of 75% of delays occurring while the victim waited to give evidence. For example, T4 featured almost 6 hr of delays, over 5 hr of which were while the victim was present, and in T5 all parties attended court only for the trial to be postponed. Delays occurred for multiple reasons, for example, problems with special measures (T4), loss of jurors (T6), and child care needs of both the victim and defendant¹² (T3; T5). The most common cause, though, was the overrunning of other cases that judges dealt with each morning before trial. Delays were referred to “We’ve got as much chance of starting today as Murray has of winning Wimbledon” (T4 prosecution, LD¹³). However, these comments did not challenge the inevitability of the continual delays, suggesting that they were considered a routine aspect of trial.

There was some resistance to this, for example, two judges started trials later than usual in an attempt to prevent delays:

Shall we say 10:30. I have other cases at 10:00 that I have to deal with but I don’t want to keep you unnecessarily. (T1 judge, WT)

Out of an abundance of caution, I shall say quarter to 11. I shall do my best, I can’t promise anything, but quarter to 11 please. (T4 judge, WT)

This is positive; however, by qualifying her attempt at preventing delays with “I can’t promise anything,” the T4 judge did not wholly reject the “inevitability” of delays. In addition, both trials were slightly delayed the following morning despite these attempts at prevention since even with the later start times, previous cases overran.

Resistance was also evident in T6, where the judge released a missing juror after 1.5 hr to protect victim welfare. Despite wanting to wait further and shoulder more delays, the judge became proactive and began the trial for the victim’s sake because of his reduced attention span as a result of severe learning difficulties: “Were it not for the fact [victim] is waiting to give evidence, I would wait further … that is a luxury we cannot afford” (T6 judge, LD). However, the overarching absence of proactive¹⁴ attempts at preventing or challenging delays suggests they were normal and not considered hugely problematic by the court.

Behavior as “Rational”

There was evidence that the CJS operates within a positivist context, leading to an assumption that behavior is “rational.” This led to a strong focus on whether a victim’s actions were “rational,” with no recognition that behavior is often “irrational.” Instead, failure to act “logically” was treated as suspicious and the assumption of “rational” decision making was used to argue the defendant would not commit rape: “He knew that the car was traceable to him … why would he be so stupid as to go on and rape the woman that he had been seen with only moments before?” (T3 defense, WT). Actions were thus compared with hypothetical “normal” situations based on logic: Defense:

And you say you were looking for the police?

Victim:

Yeah

Defense:

But you had your phone?

Victim:

Yeah

Defense:

So you could have called … so why did you say you were looking for a police car? (T3, WT)

How come you came to be outside the club without her then? […] Why didn’t you wait for her outside the club? […] If you were supposed to go to her house, how was that going to work? (T1 police to victim in video interview, WT)

The latter quote is significant because it shows that witnesses were subjected to an assumption of rational behavior during their evidence-in-chief as well as cross-examination. Having said that, one barrister did resist the notion of “irrational” behavior should be used against the victim: “The defense criticize her for not acting different on the night … [it is suggested she made ‘bad’ decisions] … but as we all know that can happen” (T1 prosecution, WT). This is a positive reminder that legal personnel cannot be treated homogenously.

On several occasions, the “rational” norm by which actions were measured was a rape myth. Whether the victim had a motive to lie, their emotionality and any delayed reporting were routinely portrayed as important in assessing the victim’s credibility. For example, “rational” ideals were used to suggest that delayed reporting was suspicious, and immediate reporting was “ideal”:

Why didn’t she call the police straight away? (T3 defense, WT)

He went back … and told his carers¹⁵ immediately. (T6 prosecution, WT)

This latter quote highlights how rape myths were not only used by defense barristers, but also referenced by the prosecution as support for the victim’s credibility.

However, there was some resistance to these stereotypes in T3 and T4

She’s been criticized for not going straight to the police … experience shows that people react differently … it is not easy, members of the jury, to tell someone about it. (T3 prosecution, WT)

Why did she not tell someone … that is a valid question … on the other hand you may think … when abuse takes place it is often hard to tell somebody … that is a comment I make. (T4 judge, WT)

In this latter quote, it was very positive to see a judge adopting one of the judicial directions outlined by the Judicial Studies Board (2010).

There was also an assumption that victim credibility could be established by whether or not there was a “rational” motive to make false allegations. For example,

Knowing perhaps if she can get her disciplinarian dad off the scene … then she can get back home again. (T4 defense, WT, during a trial where the defendant was the victim’s father)

Prosecution:

You didn’t need any extra money?

Victim:

Prosecution:

You didn’t need to make a false allegation of rape. (T3, WT)

Despite not explicitly mentioning compensation in T3, the defense had checked if the victim had made a claim. Several questions were also asked about the victim’s finances, with suggestions that “maybe there was a strong financial element to [the allegation]” (T3 defense, WT). The unfounded assumption that the victim had a “rational” incentive to lie (i.e. to get compensation) was then used to suggest her evidence could not be trusted.

Evidence was also assessed using the victim’s emotionality, which refers to whether the victim was “emotional at appropriate points in appropriate ways” (T4 defense, LD). This assumes that emotional reactions can be rationally assessed and that victims will “naturally” respond in similar ways. For example, “In relation to his later experience … [victim] was upset and agitated … does that sound like the sort of thing that [victim] might have made up, was he capable of making up” (T6 prosecution, WT). This quote shows once more that rape myths are not solely used by the defense to undermine victims but also by prosecution barristers to support victim credibility. The usefulness of emotionality was supported by all legal personnel in most of the trials, with three judges actively directing juries to consider it in their decisions:

This is a case that essentially is going to depend on whether you believe what a witness is telling you … it is sometimes the case, not always, but sometimes, you can be assisted in evaluating what a witness is telling you by the manner in which they give it. (T4 judge, WT)

The authority with which the three judges told the jury to use emotionality suggests that it may have been a routine part of their verdict deliberations.

Extreme Interpretations of “Beyond Reasonable Doubt” and “Burden of Proof”

In every trial, juries were directed not to convict unless several factors were present: “There are … fundamentals of law that you must appreciate … so that you can assess the evidence” (T1 judge, WT). These are central to understanding justice in the current system, as juries were told that they must acquit if any of these requirements were absent. All legal personnel including prosecution barristers mentioned these factors, especially the need to be BRD and the burden of proof being on the prosecution.

In all trials, defense barristers reminded the jury not to convict unless they were sure of the truth. This was presented as the need to be 100% certain: “If you think there is any possibility, not probably lying or must be lying, but do you think there is ANY possibility … it’s not saying to her that she’s lying, it’s just saying I’m not sure” (T4 defense, WT). Although a high standard of proof is needed to protect innocent defendants, BRD only requires the absence of “reasonable” doubt, not any doubt at all. No legal personnel ever commented on this. When viewed in the positivist context of the CJS, with its focus on empirical evidence and “expert” proof, certainty was then presented as impossible:

It’s just saying … how can I be sure? I wasn’t there at the time. (T4 defense, WT)

You have to say to yourselves “I simply cannot be sure” … what the scientists are saying is that we can’t be sure. (T6 defense, WT)

Since barristers are authority figures, and no challenges arose from the prosecution or judges, these interpretations are likely to be taken seriously despite not being accurate.

It was then argued that due to the burden of proof being on the prosecution, doubt about the defendant was irrelevant and any doubt about the victim should result in acquittal: “You just need to be able to say that she has told you the truth, the whole truth and nothing but the truth” (T3 defense, WT). While the 2003 Sexual Offences Act made the defendant accountable for proving consent, this was not mentioned, even in T3 where the victim feared violence because the defendant had a knife, and the burden remained wholly on the prosecution in all trials. The defense therefore only needed to create doubt in the victim’s story rather than belief in the defendant’s evidence:

[Prosecution] poses the question ‘well what was in it for her’ … that question is a dangerous question because it threatens to undermine the whole basis on which you are here … the burden is on the prosecution. (T3 defense, WT)

The law does not require the defense to come up with an explanation. (T4 prosecution, WT)

This led to a focus on the victim, with judges reinforcing such opinions. For example, judicial summaries included directions such as “The burden of proving [the charges] rests on the prosecution throughout; it is not for [defendant] to prove his innocence” (T4 judge, WT). While the defendants were subjected to manipulation during questioning, victims therefore suffered harsher manipulation tactics and more critical evaluations of their evidence. Barristers’ speeches also tended to focus on the victim, putting their actions and evidence on trial rather than the defendant: “You have to assess the central witness in the case” (T4 prosecution, WT). One barrister tentatively resisted this, arguing that “while the defiance don’t have to prove anything, you have to look at the whole situation” (T4 prosecution, WT); constructing doubt about the defendant as context for decision making.

Winning as Priority

Barristers also frequently used manipulative questioning techniques to present certain evidence in certain ways, rather than gathering all the available evidence in a balanced manner. This suggests the focus of trial was on advancing their interests rather than truth finding. All witnesses were subjected to this, but victims were especially vulnerable as they were most susceptible to criticism. Barristers primarily manipulated evidence by asking closed questions to control what information became public. Although more open questions were sometimes asked during evidence-in-chief, these tended to be about specific matters. When the defendant in T6 attempted to stray from these closed answers, the judge reminded him that:

you’re not making a speech, you’re answering questions. (T6 judge, WT)

We want to hear your answers but it’s sufficient to say yes or no while [prosecution] puts his case to you. (T6 judge, WT)

Both judges and barristers therefore reinforced the idea that defendants and witnesses were not present to tell their story, but rather as a tool with which barristers could introduce the information they desired.

Barristers also manipulated the evidence using techniques like “pining out” (see footnote viii), leading questions, pretending not to hear answers and gradually refining answers. For example:

Defense:

It is entirely consistent that the sperm head is from [victim]

DNA expert:

[It is] quite unlikely that you can get DNA information from a single sperm head

Defense:

Let’s put it this way, that it’s certainly not inconsistent with the sperm head being [victim’s]

DNA expert:

Defense:

You can’t rule out that it’s [victim’s]

DNA expert:

No. (T6, WT)

These tactics were used routinely, suggesting that questioning was about ensuring “truths” are stated in such a way as to gain advantage over the other party.

In T6, there was some resistance to this as the victim had an intermediary, which is his statutory right under the Youth Justice and Criminal Evidence Act 1999 because of his learning difficulties. Her role was “to ensure [victim] understands the questions being asked and for us to understand his responses” (T6 judge, WT), for example, by asking barristers to rephrase overly complicated questions. While she sometimes resisted pressure being put on the victim, for example:

Judge:

Did the man walk to the school with you?

Victim is silent

Intermediary:

I think [victim] feels under pressure to answer. (T6, WT)

This is at the outer limits of her role, and she usually only raised issues about the technicalities of a question. For example:

Defense:

Did you have any injuries on that day?

Victim is silent

Intermediary:

Do you know what “injuries” is?

Victim:

Intermediary:

Did you have any bruises or marks on your body?

Victim:

On my stomach

Defense:

Did any of that happen?

Intermediary:

You might need to recall what you’re talking about. (T6, WT)

Evidence manipulated was not only by questioning techniques but also by barristers focusing on irrelevant issues. Although defendants were also vulnerable to this, peripheral details were mostly discussed in relation to the victim because the interpretation of burden of proof led to a focus on victim credibility. For example, in T4 there was a great deal of questioning about the victim’s unemployment which was used to portray her as lazy and draw on class stereotypes to undermine her credibility:

Defense:

I don’t think you were working, were you?

Victim:

Defense:

And I don’t think you were involved in caring for your [relative]?

Victim:

No. (T4, WT)

Similar issues were discussed in T3, where the victim worked as a prostitute and was subjected to many stereotypes throughout the trial:

Defense:

Were you on benefits?

Victim:

Yeah I was

Defense:

And the money that you made as a sex worker, did you spend that on the drugs you’ve told us you took?

Victim:

Yeah. (T3, WT)

These were used to invoke stereotypes and create an idea of “undeserving” victims. One prosecution barrister resisted the relevance of these stereotypes, highlighting that the victim’s prostitution “doesn’t make her a second class victim” and so the jury should “treat her as a normal person … on an equal standing to any other person” (T3 prosecution, WT). The barrister’s choice of “treat her as a normal person” rather than “is a normal person” may reflect underlying judgment of the victim. In general, though, barristers focused on peripheral details to gain strategic advantage, highlighting the focus on winning rather than justice.

Discussion

The frequent delays observed support Payne’s (2009) argument that victims may experience unnecessary stress because of being left waiting to give evidence. In inquisitorial systems, victims avoid these practicalities because their written statements are usually deemed sufficient and so they do not have to attend trial (Ellison, 2001). This also means that trials primarily consider evidence gathered immediately after the offence, helping combat memory deterioration caused by a lapse of around 1 year between trial and reporting (Ellison, 2001).

Inquisitorial approaches may not be as advantageous as commonly suggested, though. For example, although victims are not cross-examined and may not have to attend trial (Doak, 2008); they can be questioned several times pre-trial¹⁶ (Sanders & Jones, 2007). In addition, protective measures for vulnerable witnesses are less comprehensive than in England and Wales, and any theoretical advantages can be undermined by the practice of legal personnel (Doak, 2008). This can be seen in the improper questions asked by Dutch defense barristers during pretrial questioning, and the failure of examining magistrates to intervene (Doak, 2008; Ellison, 2001). Indeed, some argue that countries with inquisitorial systems experience similar levels of rape myths to England and Wales, for example, there can still be a focus on the victims’ clothing, motivation to lie, and sexual history (Ellison, 2001). In addition, the focus on winning cannot be assumed to vanish simply because there is nominally a focus on finding out what happened, especially as the State is not always neutral and fair in its search for truth (Jörg, Field, & Brants, 1995). It would therefore be overly optimistic to claim that rape victims are treated well in inquisitorial systems. Even if inquisitorialism was desirable, it cannot simply be imported because each CJS has a unique context that may cause inquisitorial approaches to take on a different nature in English and Welsh courts (Ellison, 2001; Taslitz, 1999).

Despite this, the existence of some research suggesting victims are better treated within inquisitorial systems makes it at least worthy of discussion. In addition, many of these problems are related to the inadequate attitudes of legal personnel rather than the fundamental structures of the CJS as in adversarialism (Doak, 2008). This may be why Taslitz (1999), a U.S. lawyer, rejects inquisitorialism, but believes we can still learn from inquisitorial principles. These principles are currently used more than is commonly acknowledged, for example, the use of prerecorded video evidence is arguably more compatible with inquisitorial than adversarial approaches to testimony. The Children’s Reporter Scheme in Scotland also currently deals with hearings involving children using similar values, with trials being like an inquiry where a lay tribunal discusses evidence with experts. This makes trials more about conversations than battles and allows greater reliance on written evidence gained pretrial, enjoying the potential benefits of inquisitorial principles without embracing inquisitorialism. A similar approach could be developed for adult rape and sexual assault trials.

Dripps (2009) acknowledged the problem of jury trials and suggested an innovative solution that did not result in the adoption of inquisitorialism, although it arguably uses inquisitorial principles. Dripps (2009) noted that despite procedural reform to improve conviction rates, rape trials remain problematic because jurors are influenced by stereotypes about male sexuality being naturally aggressive. As a result, Dripps (2009) argues that we should try rape cases in a specialist court without juries, instead relying on a judge or panel of lay-judges like those in a U.K. magistrate’s court. However, both Dripp’s U.S. specialist court and U.K. magistrate’s courts can only impose a maximum 6 month sentence for a single crime (Dripps, 2009). Dripps argues that this is better than nothing, as most rape trials end in acquittal. The idea of a specialist court is commendable; however, maximum of 6 months is too much of a compromise when dealing with a serious crime like rape. In England and Wales, it may be possible to have judge-only trials without a maximum sentence of 6 months; however, a legislative change would be needed to allow trial without jury.

Another option is to draw on good practice that already exists in Specialist Domestic Violence Courts. These specialist courts aim to improve information-sharing and advocacy, which may raise victim participation and satisfaction (Cook, Burton, Robinson, & Vallely, 2004). The personnel at the courts are specially trained and used to dealing with domestic violence cases, potentially making them more likely to act with sensitivity and reject stereotypes (Cook et al., 2004). This is an important development on Dripps’ (2009) argument, which assumes that legal personnel do not believe gendered stereotypes about sexual behavior despite a multitude of research to the contrary. While domestic violence courts are overwhelmingly in Magistrates Courts¹⁷, some of the provisions of Cardiff Domestic Violence Court extend to the Crown Court; which prioritizes domestic violence cases by ensuring that Crown Court trial listings are carefully considered and that cases are heard by experienced judges (Cook et al., 2004). It is unlikely that specialist courts could be used to try rape cases without new legislation enabling Crown Court trials without juries. Having said that, Cook et al. (2004) note that most of the benefits of specialist courts are about improving pretrial hearings, and this may be something that could be considered for rape trials.

Returning to the discussion about adversarial systems, our research supports Ellison (2001) in that emotionality is perceived as central to evaluating witnesses. This ignores the fact that people react differently and express themselves in different ways (see also Payne, 2009). Visible distress was portrayed as the “logical” reaction to rape, which homogenized victims and placed normative judgments on certain ways of communicating. This also ignored the element of interpretation that occurs when two people communicate, meaning that a victims’ emotions could be misinterpreted by legal personnel or jurors. Until the focus on emotionality as a sign of veracity is addressed, the victim’s attendance at trial may continue to be considered essential and victims will remain vulnerable to the stress caused by cross-examination and routine disruptions.

The findings also highlight the positivist context of the CJS, which impacts on understandings of how justice can be achieved. This led to the assumption that there was a single “truth” to be uncovered and that empirical or “scientific” evidence was the most legitimate method of finding it. The positivist context also caused a focus on “rationality” and meant that “truth” was established by whether a witness’s actions conformed to a hypothetical “logical” ideal. Victims therefore needed to defend “irrational” actions that were deemed suspicious despite our actions being more messy and complicated than clear-cut and “rational” (Nicholson, 2000). This makes victims more vulnerable to being discredited since these perceived irrationalities can become the focus of the defense case.

The hypothetical norms used to assess the victim’s actions were often rape myths or other, class-based, stereotypes that undermined victim credibility. In life, though, people do not act rationally or consistently and rape can happen to anyone regardless of whether they are considered socially “deviant.” While it would be easy to blame juries for believing such rape myths, the constant focus on peripheral details may cause jurors to consider issues they otherwise would not. Legal personnel are in positions of authority and their focus on such issues may indicate to jurors that this is what matters. Training legal personnel about rape myths is one possible “solution” to this; however, defense barristers used rape myths even when the prosecution noted their non-truth. Barristers may therefore invoke stereotypes despite knowing they are false, possibly because of the long-standing adversarial focus on winning in whatever way is possible (see also Ellison, 2001). It is therefore not enough, as the 2007 SVAAP suggests, to simply train legal personnel. In addition, the focus on comparing situations with hypothetical “rational” norms effectively makes stereotypes the yardstick by which a witness’s evidence is evaluated and perpetuates their use (see also Hudson, 2002). As long as there is a focus on winning and using “rationality” to assess witness evidence, rape myths and other stereotypes will continue to feature prominently in trials.

The findings also highlight inappropriate questioning, which may reduce the quality of evidence heard, especially, when cases involve particularly vulnerable witnesses like the victim and defendant with learning difficulties in T4. Bull (2010) suggests that asking open questions and avoiding leading or suggestive questions is therefore essential (see also Kebbell & Johnson, 2000). The demeanor of the person asking the questions may also be important, as more authoritative demeanors make vulnerable witnesses less able to recall accurate information and less willing to disclose information (Bull, 2010). This makes it even more important to question witnesses in an appropriate way, ensuring that high-quality information is produced (Bull, 2010; Ellison, 2000, 2001; Kebbell & Johnson, 2000).

Legal personnel, especially defense barristers, also interpreted procedural rules in an extreme form without being challenged by judges. Reasonable doubt does not mean the absence of any doubt, and the presumption of innocence does not mean that doubt about the defendant should be ignored. This was never highlighted by legal personnel, possibly due to informal rules about judicial passivity (see Ellison, 2001) or shared cultural understandings about the meanings of ‘ and burden of proof. The effects of these interpretations on rape trials are not addressed in current literature, but studies show that the way in which BRD is defined can impact on conviction rates (Wright & Hall, 2007). For example, a U.S. study explored the effect of varying BRD definitions on mock murder trials and found that stronger definitions led to significantly fewer convictions when evidence was “weak” (Horowitz & Kirkpatrick, 1996). This could affect rape trials in that evidence is often considered “weak” because trials are frequently one person’s word against another. This must be explored by future research.

Extreme interpretations of the burden of proof are also important because they imply the 2003 Sexual Offences Act has not successfully made defendants more accountable for proving reasonable belief in consent. This ineffectiveness may be due to the requirements of Section 75, which states it is the defendant’s responsibility to prove consent only if the prosecution proves certain factors first (see Sexual Offences Act, 2003). These factors include that the victim was unconscious or experienced actual or threatened violence. The prosecution case often hinges on such issues anyway, and so proving them before the defendant becomes accountable for proving consent effectively requires proving the case anyway. We found no academic research in relation to these issues, and this must be rectified if policy effectiveness is to be improved, especially, as these extreme interpretations may partially explain low conviction rates and the excessive criticism of victims.

As previously noted, barristers’ priorities reflect the adversarial focus on winning (Ellison, 2000). This may help explain the continued use of inappropriate questioning techniques, perpetuation of rape myths and extreme formulations of procedural rules. Adversarial principles are used to assert that judges will stop anything improper and so barristers should “fearlessly promote their client’s interests” (Bar Council, 2004). However, there is literature suggesting that judges have their own biases (Crow & Gertz, 2008; Hucklesby, 1997; Rumgay, 1995) and a culture of judicial passivity is rife in English and Welsh courts (Ellison, 2000). It is therefore important to begin addressing such cultures and explore comparisons with inquisitorial systems to improve responses to vulnerable victims.

Concluding Remarks

This study observed trials to explore the problems faced by rape complainants in court. The emergent themes were routine delays, prioritization of “rational” behavior, extreme interpretations of “BRD” and “burden of proof,” and winning as priority. This contributes to the existing literature, which tends to rely on interviews and often fails to explore the adversarial context of trials. It also contributes to the wider literature on victims, as many of the findings are applicable to nonsexual violence trials. It is important to remember, though, that very vulnerable victims are likely to be disproportionately affected by common legal tactics, and rape is a clear example of a crime that causes heightened vulnerability (Ellison, 2000).

There were some positive findings, for example, most judges did appear to consider victims as long as this did not impact on the usual running of trial. This supports Stern’s (2010) and Yancy Martin’s (2005) claims that there is reason to celebrate, yet there were also many issues requiring fundamental change. Although short-term solutions such as training legal personnel about sexual history evidence (Kelly et al., 2006) are important, they must not distract us from radical reform. This is especially true as many short-term recommendations cannot be successful without simultaneously addressing these underlying problems. In terms of short-term change, the findings highlight several areas for immediate improvement. For example, the Listings Office should allow at least 15 min per case dealt with before trial, rather than the 5 or 10 min currently left. This would minimize delays by allowing more leeway if the prior cases run late. Trials should also start in the afternoon on the first day so that the victim is not summoned until the following morning and can avoid the delays that occur pretrial (see also Payne, 2009).

Introducing victim’s lawyers could also make immediate improvements (see also Stern, 2010). As previously stated, there needs to be more discussion about the role these lawyers should undertake. The most appropriate role would be protecting victims from inappropriate questioning and objecting to extreme interpretations of BRD or burden of proof. In terms of the practicalities of this; key questions include what the relationship between the prosecution and victims’ barrister should be and what should be the consequences of a victims’ lawyer’s objection. Here, we do not have all the answers and hope that this article can stimulate debate about these important issues. For example, the victims’ lawyer could provide input into the prosecution’s trial strategy, but the prosecutor would remain in control. They could also object to the defense line of questioning without the prosecution’s permission, but not be involved in any decision-making discussions about the objection other than to briefly explain why the questions were inappropriate. These objections could only be about matters of law, for example, that questions were more prejudicial than probative, and so would not change the prosecution’s responses to legitimate defense arguments. In this way, the victims’ lawyer could act as an “evidentiary watchdog,” much like the judge and prosecution barrister are meant to be but are not. Although training judges to do this may be a more popular solution, training about other habits has not proved effective in achieving consistent change and the fear of appeal due to excessive intervention may prevent judges from speaking up¹⁸ (Ellison, 2000). Using victim’s lawyers to bring these objections may therefore appease the problems faced by sexual violence victims without requiring long-term cultural changes. Having said this, we acknowledge that the implementation of victim’s lawyers may also require a cultural change, especially if they are expected to successfully challenge a judge.

Most importantly, fundamental change is required to shift priorities away from simply winning and onto a more balanced approach. Although this may seem idealistic, existing attempts at improving the situation are not being effective and we need to be more creative in thinking what currently appears “unthinkable.” This approach would focus on finding out what happened, the perceived truth from both sides, using processes informed by both an ethic of care for the victim and due process protection of the defendant. This is easier said than done, but some authors argue it can be achieved (Walsh & Bull, 2010). In practice this may involve changes to legal education so that the culture of winning at any cost is addressed early on. Solicitors could be encouraged to instruct barristers on the basis of their fairness as well as their case “success” rate in terms of convictions or acquittals, ensuring that barristers adopting an ethic of care are not penalized in their career. Further research is required to establish the best way of doing this, but it could start by including this principle in ethical codes of conduct. In addition, training for legal personnel should highlight that “a fair trial does not mean a trial which is free from all possible detriment or disadvantage to the accused” (Doak, 2008, p. 247). The protection of defendants’ rights is often used to justify poor victim treatment, so highlighting that victim and defendant rights are not a “zero-sum” game may promote the uptake of an ethic of care.

An ethic of care could also be developed by exploring the principles of inquisitorialism. Although we have already noted that inquisitorial systems are not perfect and cannot simply be imported, it would be useful to explore whether rape trials could implement similar principles; for example, preventing victims from having to attend trial (if they do not want too) and so avoiding many of the problems trials cause. Most realistically, though, an ethic of care may be developed through extending some of the provisions in Specialist Domestic Violence courts to sexual violence cases. A more detailed discussion of Specialist Domestic Violence courts is not possible in this article but it is something that must be further explored by research. Although we have not provided exhaustive answers to the problems raised in this article, we hope to have initiated a useful discussion in moving responses to vulnerable victims forward.

Footnotes

Appendix

Number of Defendant’s Proceeded Against at Magistrates Court and Found Guilty at All Courts for Rape and Attempted Rape: Statistics Are for England and Wales, 2003 to 2007, Broken down by Government Office Region

	Proceeded against					Found guilty					Conviction rate (%)^a
Region	2003	2004	2005	2006	2007	2003	2004	2005	2006	2007	2003	2004	2005	2006	2007
North East	144	120	146	141	117	32	42	32	50	51	22	35	22	35	44
North West	447	401	425	370	370	97	104	118	131	116	22	26	28	35	31
Yorkshire and Humberside	245	252	268	218	191	75	103	120	112	118	31	41	45	51	62
East Midlands	206	221	232	176	140	59	69	68	71	68	29	31	29	40	49
West Midlands	335	324	280	281	248	81	93	108	84	92	24	29	39	30	37
East of England	181	210	198	179	119	43	55	61	63	53	24	26	31	35	45
London	637	516	640	589	557	132	121	118	151	156	21	23	18	26	28
South East	291	279	348	303	299	59	67	87	96	111	20	24	25	32	37
South West	155	168	145	174	184	56	53	49	74	58	36	32	34	43	32
Wales	149	198	144	136	138	39	44	35	31	50	26	22	24	23	36
England and Wales	2,790	2,689	2,826	2,567	2,363	673	751	796	863	873	24	28	28	34	37

Source: Justice Statistics Analytical Services, Ministry of Justice.

Note: Every effort is made to ensure that the figures presented are accurate and complete. However, it is important to note that these data have been extracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data collection processes and their inevitably limitations are taken into account when those data are used. Based on the proportion of those proceeded against who were found guilty.

The statistics relate to persons for whom these offences were the principal offences for which they were dealt with. When a defendant was found guilty of two or more offences, the principal offences are the offence for which the heaviest penalty is imposed. Where the same disposal is imposed for two or more offences, the offence is selected for which the statutory maximum penalty is the most severe.

Acknowledgements

The authors thank the anonymous reviewers and everyone else who read earlier drafts of this article and provided their helpful insights. Special thanks go to Dr. Nicole Westmarland, Vera Baird QC, Professor Liz Kelly, Professor Rod Morgan, Professor Ray Bull, Joyce Plotnikoff, Polly Rosetti for Victim Support, Val Lunn for Rape Crisis, Dr. Louise Brown and Professor Fiona Raitt. They thank Laura Gourlay for alerting us to the potential possibilities of domestic violence courts for rape victims.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received financial support for the research through an ESRC 1+3 Scholarship.

Notes

Bios

Olivia Smith is a postgraduate researcher at the University of Bath. Her research focus is on court responses to sexual violence, although she is involved in front-line responses to vulnerable women in her spare time. Olivia has presented papers at several high profile conferences and appeared on Radio 4’s Woman’s Hour as part of a discussion about court responses to victims of rape.

Tina Skinner received her PhD from the University of Sheffield in 1998; she then became a Lecturer in Criminology first at the University of Teesside and then the University of Leicester; before being appointed Lecturer in Sociology at the University of Bath in 2002. Dr Skinner’s research is concerned with gender, marginalisation and sensitive research methodology. She has previously worked with police and support services for survivors of rape and sexual assault.

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