Rape Myths and Juries

Ann Coffey Excerpts

Wednesday 21st November 2018 Westminster Hall

[Ann Coffey (Stockport) (Lab)]

I beg to move,

That this House has considered rape myths and juries.

It is a pleasure to serve under your chairmanship, Mr Hosie.

In August, I submitted a freedom of information request to the Crown Prosecution Service about the conviction rates for rape. The answer revealed that less than a third of prosecutions brought against young men result in a conviction. Men aged 18 to 24 in England and Wales are consistently less likely to be found guilty than older men. Only 32% were convicted last year—the lowest of any age group. Successful prosecutions against men aged 25 to 59 were much higher at 46 %. The Guardian used those figures in its recent excellent series on rape.

Given that the vast majority of rapes are acquaintance or date rape, the conviction figures suggest a reluctance by juries to find young men guilty of rape. We need to explore the reasons behind that and how rape myths, stereotypes and attitudes affect juries. The rates may reflect the prevailing attitudes in society, and therefore of juries, towards young women, who are often blamed for their own rape.

The number of men charged with rape in England and Wales has fallen to its lowest level in a decade—a 23% decline in 2017-18, according to the Crown Prosecution Service’s annual “Violence against Women and Girls Report”. Yet at the same time, the number of rapes reported to the police soared to more than 41,000 in 2016-17, with a massive 150% increase in the last five years. Despite fewer charges, there was a 13% fall in prosecutions and a 12% decrease in convictions.

[Gloria De Piero (Ashfield) (Lab)]

My hon. Friend highlights some figures; according to latest figures, just over half the reports of rape resulted in a charge. Of the cases that were prosecuted, 42% did not result in a conviction. The most vital thing for women who report rape is that they are believed. Does she agree that those figures cause serious harm to that principle?

[Ann Coffey]

I agree; women must have confidence when reporting rape that they will be believed and taken seriously, and that they will have justice.

There has been a 72% increase in the number of cases that have been administratively finalised—meaning the police have closed them after receiving advice from the CPS. A Guardian article on 24 September quoted a whistleblower who said that prosecutors were being told to

“ditch ‘weak’ rape cases to improve figures”.

That advice could severely limit victims’ access to justice and lead to cases involving younger victims, students or those with mental health issues being less likely to result in a charge. The overwhelming majority of rape victims still choose not to report to the police for fear of not being believed, yet the prevailing narrative in some sections of the media is that lying about rape is common. The opposite is true. Only 17% of those who experience sexual violence report it to the police, according to figures from the Office for National Statistics for March 2017. The CPS estimated in 2012 that only 3% of the 1,149 cases heard may have been malicious.

Juries view evidence through the lens of prevailing stereotypes shared with the wider community. Rape myths still dominate in our culture, including that a woman who has drunk a lot cannot complain if she is raped, that it is rape only if someone has injuries, that real rapes are done by strangers in alleyways, that it is a crime of passion and that women invite rape by what they wear. Research shows that stereotypes about how rape victims are expected to behave remain prevalent in society and, by extension, in juries. There is still a lack of understanding about why a woman might not report an assault immediately or might not fight, or how a victim of a sexual assault might behave in the immediate aftermath of an attack. There are still huge gaps in the public understanding about what sexual consent actually means.

The End Violence Against Women Coalition commissioned YouGov research, which will be published shortly, that shows confusion among the public about what constitutes rape, particularly concerning the majority of rapes involving acquaintances. Almost a third thought it was not rape if a woman had flirted on a date but had not wanted sex. Juries take those attitudes into the court room with them. Defence lawyers play up those myths in an attempt to rubbish the character of the witness.

Dr Dominic Willmott, an academic at Huddersfield University, conducted a study in 2017 in which he replicated genuine trial environments to assess how attitudes and backgrounds had an impact on juries. The study found that nearly half of jurors in rape cases came to a verdict before deliberation, indicating a predictive relationship between juror demographics, personal experience and psychological make-up, with an impact on verdicts in rape cases. Dr Willmott said the research demonstrated

“that for all the best efforts of the courts, juries are not necessarily offering a fair and impartial assessment of the evidence, particularly within rape cases. Past experiences play a huge role in shaping the person you are, and inevitably affects your view on society. As well as the importance of demographic features of the jurors, attitudes towards rape were found to be the strongest predictor of high numbers of not guilty verdicts.”

We all saw how the culture at the time protected very well-known people such as Jimmy Savile. We saw how young girls who were victims of shocking sexual exploitation in Rotherham and Rochdale were seen as prostitutes who consented to their abuse. Language and how we talk about behaviour is very important; it shapes what we see. The Crown Prosecution Service has said:

“Addressing the low conviction after contest rate in cases involving young defendants represents a challenge for the entire criminal justice system.”

The Ministry of Justice responded to an open e-petition in July this year that called on the Government to produce compulsory training about rape myths for all jurors in rape trials by appointing Professor Cheryl Thomas to gather data from experienced jurors at a range of courts throughout the country. The Government response to the petition said:

“We know that rape myths exist within our society, and therefore jurors could believe these myths and that this could affect their interpretations of the facts of the case.”

In the light of the shocking figures on charging and convictions there should be a stronger response, because this situation can only get worse without action.

I would like an urgent independent inquiry that would include some controversial areas, such as a review of the use of juries in rape cases; jury vetting; specialist rape courts; current law; judicial directions; examination of the falling number of rapes charges by the CPS; low conviction rates for rape, especially date and acquaintance rape; the role of expert witnesses in rape cases; pre-recorded cross-examination; and sexual history evidence rules. I absolutely accept that the justice system needs to ensure that the innocent go free and the guilty are sentenced, but my concern is that conviction rates indicate that the scales of justice are tipped against the victim. The most common cause of unsuccessful prosecutions in rape cases is jury acquittal.

Other countries have been pondering this difficult question. The Law Commission in New Zealand published a report in December 2015 that concluded:

“The nature of sexual violence is such that, as a form of criminal offending, it is not well suited to fact-finding by a jury comprised of 12 laypersons.”

The German and French court systems have a collaborative court model in which professional judges decide cases with citizens. Sir John Gillen, who issued a report yesterday in response to serious concerns about low conviction rates for rape in Northern Ireland and the polluting effect of rape myths said,

“there is no doubt that there is a growing belief, particularly among young people, that a jury should be replaced by a judge or by a judge and two lay people such as we see in family courts and aspects of youth justice.”

Specialist domestic violence courts were introduced in the mid-2000s. At the time, the prevailing view was that it was the woman’s own fault if she did not leave an abusive husband. New specialist sexual violence courts could draw on experience from those courts of using specially trained staff, ensuring speedy access to victim support services and ensuring that the court is a physically safe space for the victim, for example by using separate entrances and special measures for giving evidence.

The roll-out of the successful pilots in Leeds, Liverpool and Kingston of section 28 of the Youth Justice and Criminal Evidence Act 1999, which allows pre-recorded cross-examination, has still not happened. Those pilots, which involved vulnerable child witnesses, were evaluated as very successful in improving the quality of cross-examination and stopping bullying attacks on the character of witnesses. I hope that the Minister can give us positive news about when pre-recorded cross-examination will finally be rolled out, and that she will consider offering it to victims whose access to a fair trial may be compromised by rape myths.

There is also controversy about the extent of the personal records and data that police request of rape complainants before going ahead with their cases. The nature and extent of the information requested from complainants varies widely across police forces. There is concern that intensive examination of a complainant’s communication and behaviour to establish their “credibility” is too often a proxy for rape myths and discriminatory assumptions. The new Director of Public Prosecutions addressed that issue in his first major speech, saying that rape complainants must have their personal privacy, including their mobile phone records, protected.

Dr Willmott has called for the vetting of juries for preconceived bias. He argues that although judges can tell jurors to disregard certain things, that does not make any difference:

“Our study highlights that even before the case has begun, jurors’ psycho-social make up predisposes them towards particular verdict decisions, making a vetting system for juries increasingly important. By implementing such a system we can reduce existing bias from juries, which should result in a greater number of fairer outcomes.”

There have been calls for experts to be allowed to give evidence about rape myths. There is a case for updating judicial directions to take into account the impact of social media and how it can feed into rape myths—another issue taken up by Sir John Gillen. Baroness Stern raised the impact of rape myths on juries in her 2010 review, quoting a specialist rape prosecutor who said:

“You can forgive juries for finding it hard to convict given the burden of proof and when the defence works so hard to discredit the victim’s case. There is a lot of general misunderstanding about trauma.”

In Scotland, section 275C of the Criminal Procedure (Scotland) Act 1995 allows prosecutors to call expert evidence at trial. That would help jurors to understand typical psychological responses to rape.

Currently, UK law does not differentiate between stranger rape and acquaintance rape, which both carry a maximum sentence of life imprisonment. Juries understand the evidence for stranger rape, but complex issues about consent in acquaintance rape are not so well understood. A senior police officer said that

“at the moment we are asking juries to do something incredibility difficult.”

That is true. We ask jurors to make judgments about consent to sex where the victim and the accused are known to each other and the victim may have consented to some sexual activity but not to penetration. It is challenging for juries to judge whether the defendant had a reasonable belief that consent was given, especially when drink was involved. That is where myths and stereotypes kick in.

The consent elements of rape, as outlined in CPS guidelines, are that

“B does not consent to the penetration and A does not reasonably believe that B consents”.

The CPS guidelines go on to state:

“Proving the absence of consent is usually the most difficult part of a rape prosecution, and is the most common reason for a rape case to fail. Prosecutors will look for evidence such as injury, struggle, or immediate distress to help them prove that the victim did not consent, but frequently there may be no such corroborating evidence.”

Sir John Gillen called for a

“discernible shift towards a requirement for some measure of affirmative or participative expression of consent and away from a focus on resistance as a means to prove the absence of consent.”

I have the greatest respect and admiration for members of the public who do jury service, some of whom have to sit through evidence of the most horrifying and brutal crimes inflicted by one person on another. Serving on a jury is indeed a public service. However, I return to my original figures. Juries are reluctant to convict young men of rape. It is no use wringing our hands about that. We cannot have a situation in which young women who have been raped feel that they have no access to justice, because that undermines the whole justice system.

Ministers need to take strong action, including a fundamental review of the whole system. They must take the lead to forge better public understanding of rape myths and what constitutes consent. Sir John Gillen, who suggested a large-scale publicity campaign and training for juries, said:

“Jurors don’t just land from the moon, they are people like you and me.”

A perfect storm is developing in which juries are reluctant to convict young men who are charged with rape, so the CPS is reluctant to prosecute and the police are therefore reluctant to refer. The result is that victims will stop coming forward and young women will be denied justice. The danger is that we will be thrown back to the dark days, when victims of abuse were silenced and dared not speak out.