By Sorcha Dervin
Trigger Warning: Rape
Disclaimer: This article refers to the male as ‘the accused/perpetrator’ of rape. This is based on the definition of rape provided in the Sexual Offences Act 2003, outlining that only men can commit a rape.
The Universal Declaration of Human Rights, article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
There are profound reasons why the notion of “innocent until proven guilty” is well and truly cemented in our courts. It is the cornerstone of a valuable justice system, allowing the law to be fair and just, and critically punishing the guilty and not the innocent. It has unfolded to be a pretty nifty piece of legislation, especially given the context in 1948: two World Wars had been fought in under 30 years, with human rights violations beyond comprehension inflicted on the Jewish race in Europe, alongside detained prisoners of war in Asia.
However, in the reality of adult sexual assault and rape cases, does the notion of “innocent until proven guilty” restrict a victim’s access to justice? Consider this: approximately 85,000 women and 12,000 men are raped in England and Wales alone every year; that’s roughly 11 rapes (of adults alone) every hour, but – and here’s the crucial part – only around 15 per cent of those who experience sexual violence choose to report it to the police. Is our criminal justice system failing victims? And if so, which bit exactly?
There are two approaches to consider when viewing the law in conjunction with the effects it has on peoples’ lives. There is the language of the legislation, and then there is the context, which actually addresses the question – are the police, the media, the courts, “the system”, propagating rape culture?
The Legal Stuff
The Sexual Offences Act 2003 defines rape by including the usual legal jargon such as “intention”, and the standard of reasonable belief, and that all important word – consent. The law is very clear: section 74 of the Sexual Offences Act explains, “Someone consents if she/he agrees by choice and has the freedom and capacity to make that choice”.
So far so good. Although it you align this piece of legislation with the context of the criminal legal system, as opposed to a civil court, you will find that the burden of proof rests with the complainant to prove (beyond all reasonable doubt) that the defendant is guilty of an alleged rape. If we refer back to the principle of “innocent until proven guilty”, (and all that it does for fairness and integrity of justice), and balance this against the conviction rate of accused sexual offenders: “justice” seems like a forgotten notion.
Take March 2014, for instance – there were 64,200 reported cases of sexual offences in England and Wales [including, but not solely referring to, rape]. In 1,401 of those cases, the perpetrator was given a “caution”, and only 33, 277 cases made it to formal proceedings. Out of those 33,277 proceedings, a further reduction of only 19,864 cases ended in a conviction. So, out of a total of 64,200 reports, only 19,864 were prosecuted. What is the most likely conclusion – England and Wales have an epidemic of thousands and thousands of women crying “rape”, or…the system is failing them in their pursuit of justice?
The Context – the police, the papers, and the prosecution
I have simplified my analysis of the “system” into three main areas, though I do not assert to understand any in great detail, nor do I deny that there are many shortcomings when it comes to regaining justice for victims of sexual assaults and rape. Broadly speaking, as a society and a legal system, the police fail, the (news)papers fail, and the prosecution fails.
Rape Crisis (England & Wales) have collated data based on reported sexual offences and surveys from those who have experienced some kind of sexual assault. From this, it is shown that only around 15 per cent of those who experience sexual assault choose to report it to be police, and only 28 per cent of reported rapes are referred to the Crown Prosecution Service (CPS). If you were a victim of a sexual assault, would you report it to an institution which has a historical record of dismissing allegations, disbelieving complainants, and undermining the seriousness of sexual assault? I think not. But let’s say you were brave enough and determined enough to pursue your allegation, a disproportionate amount of allegations are still dismissed, a small amount of accused sexual offenders are cautioned, and if your case progresses to formal proceedings, there are further hurdles to climb…
Have you ever heard of Brock Turner? Perhaps not, although you may recall his other titles: “Stanford University swimmer”, “20-year-old, All-American swimmer” or “Stanford student son…”. Although it is an American case, and the US legal system is vastly different to our own, The People v Turner and the media coverage surrounding it, epitomises the callous attitudes to reporting sexual assault cases. Brock Turner was found guilty of rape, and convicted of this offence, however, the media chose to present him in terms of a) his privileged education, b) his athletic abilities, and c) his family connections, rather than as the man who sexually assaulted an unconscious woman.
There are many debates surrounding The People v Turner concerning white privilege, institutionalised racism, and educational elitism, however, for the purpose of the article I am only going to focus on the media’s propagation of rape culture. Some media outlets act as the biggest drivers of victim-blaming, slut-shaming and rape-sympathising. Through cleverly designed headlines, and specific discourse, a newspaper or an article on Facebook can make you empathise with the rapist, rather than the victim.
Before you discount the power of the media, ask yourself whether a 20-year-old, unemployed and uneducated African American would have received a 6-month prison sentence (and only required to serve half of it) for a sexual assault which had eye witnesses. The media painted a version of Brock Turner, which pressured or allowed (depending on your perception of the legal system) the judiciary to view Turner as a young, intelligent, athlete with a bright future, simply a victim of “liquor” and circumstance. I would advise anyone interested in deciphering who the real victim was in this case, to read the victim’s statement: “You don’t know me, but you’ve been inside me, and that’s why we’re here today.”
Prosecuting sexual assault: “raped all over again”
This is a statement made by Frances Andrade, after her experience in the witness box left her feeling violated. Days after, Frances Andrade committed suicide.
These are some extracts from her cross-examination: “That is simply not true…”, “You are indulging fantasy…”, “What you have told this jury is a complete pack of lies”. An (arguably) excellent barrister – defending their client with the upmost rigor, and discrediting the prosecution’s case, but it makes for an uncomfortable read in the light of this woman’s suicide.
Some other examples of cross-examination and courtroom exchanges include:
“What were you wearing at the time of the alleged assault?” “How much alcohol had you consumed?”, “How many sexual partners have you had previously?” Or, and this is extraordinary by any judges’ standards: “Did the victim try closing [their] legs?”
Director of Public Prosecutions, Alison Saunders summarises: “For too long society has blamed rape victims for confusing the issue of consent – by drinking or dressing provocatively for example – but it is not they who are confused, it is society itself and we must challenge that. Consent to sexual activity is not a grey area – in law it is clearly defined and must be given “fully and freely”.
It is time for defence barristers, whilst upholding the notion of “innocent until proven guilty”, to actually uphold integrity of justice, and do right by the victims of sexual violence. For a legal battle as sensitive as sexual assault, there is no place for “point-scoring”, or character assassinations. Instead, there should be a candid explanation of the facts, and a serious exploration to uncover the truth (from both sides of the courtroom).
It must be remembered when considering this principled notion, that there is a difference between believing the innocence of the defendant (until proven otherwise), and actively disbelieving the complainant, and the smear tactics which follow. It is one thing for a defence barrister to stand up in court and say “my client is innocent; it is for the prosecution to present evidence to the jury that, beyond all reasonable doubt, my client is guilty of the alleged offence”. But, as we’ve seen in the harsh reality of some cases (such as Frances Andrade), defence counsel often go beyond their role, and diminish the complainant to nothing more than a liar or a fantasist. This entire process goes against the principles of justice.
There is an urgent need for reform in the way society views sexual assault as a whole. This article has only scratched the surface on a complex and multi-faceted system, which is flawed in many ways. As I have tried to argue, there are layers of institutionalised thought processes, which allow attitudes towards victims of sexual assault to remain negative and unhelpful. The approach to reform, in my view, has to be “top-down”: the criminal justice system needs to review the way it prosecutes sexual assault cases, and the process in which these cases travel from police stations, to the CPS, and then to the courts. If the criminal justice system can send a clear and unequivocal message to victims about how they will be treated, one hopes that the media will shift in their perspectives also. With this in mind, gradually over time, society as a whole should start to view sexual assault as the serious crime that it is, and justice can be regained more readily for victims of sexual abuse.