Vera Baird DBE KC

Writer, Lecturer, Parliamentary Consultant and Co-Director of Astraea: Gender Justice

Huffington Post Article (9th June). Responding to the Director of Public Prosecutions Rape Action Plan.

Today’s Rape Action Plan from Director of Public Prosecutions, Alison Saunders, is yet another valiant attempt to improve the conviction rate for sexual offences which is, in reality, still held back by out of date rape myths which prevail at court and which remain influential in the police and the Crown Prosecution Service.

There was an upward trend in the rate of conviction for cases that got to court for about seven years as police and CPS made progress in training their staff and improving witness care. However, the increase was never huge and it fell sharply from 63%-60% during the past year.

There must be a fear that similarly, the recent increase in the number of complainants who have the confidence to report rape will go into reverse if the conviction rate continues to go down, making the point that they are unlikely to get justice.

The police and CPS training which brought those original improvements was substantial. However it seems only to have got them over some of the rape myths that used to block prosecutions, leaving them locked into others. A letter read this morning on the Today programme made that point. It showed CPS explaining to a complainant that the underwear she was wearing was one of the reasons why they wouldn’t prosecute her allegation of rape. Particularly shocking is that the letter must have been written by a dedicated rape prosecutor since it is a decade since CPS allowed a non-specialist to manage a rape case.

Alison Saunders is therefore right to focus in her Action Plan on yet more guidance for prosecutors, research into why victims withdraw, ensuring legal advocates have the right skills, regional workshops for CPS/police to strengthen learning around investigations and prosecutions and improving oversight and accountability for police decisions to take no further action. It is rightly too all directed towards acquiring and using a better understanding of what consent means and on shifting the focus from the credibility of the victim to the overall allegation and the conduct of the accused.

The continuing impact of these out of date myths even on trained police and prosecutors leaves little hope that untrained jurors will do better. And if myths and prejudices influence outcomes at court, that will cause injustice and will re-inforce their use in police and CPS decisions about which future cases to take forward. So while the DPP re-trains her staff in the significance of factors such as underwear, it is equally important that every rape jury has explained to them the prejudicial effect of similar myths.

Happily, the Crown Court judges have long had a folio of directions in place to neutralise most of the well-known myths and prejudices in trials. It was the former Lord Chief Justice, Lord Judge, who first appreciated that the training that the judges themselves get about myths and stereotypes had to be passed on to juries if rape trials were going to be fair.

A good example is when a rape complaint is made sometime after the event. The defence will say that the sex was consensual, that rape is so nasty that anyone would complain of it immediately and that the delay in complaint shows that she is lying about lack of consent. In the absence of any different understanding jurors might accept that argument. Yet judges know from experience, including around guilty pleas, that sexual assault victims frequently do not complain at once. So they can direct a jury that while some people may speak to the first person they see, others will, through shame and shock take far longer to tell anyone what has happened. Judges will, in that way, bust the myth that a late complaint is necessarily a false one and leave the facts in each case, fairly set out for the jury to decide.

There are directions similarly to deal with notions such as because the complainant wore provocative clothing, he/she must have wanted sex; since the complainant got drunk in male company, he/she must have been prepared for sex; that an attractive male does not need to rape; a complainant in a relationship with the alleged attacker is likely to have consented; that rape does not take place without physical resistance from the victim and usually causes injury and that rape by a stranger is necessarily more traumatic than rape by someone the victim trusted.

However, many victims and rape support groups would say that despite these directions there is often aggressive cross examination in rape trials, which relies on these very myths. That can undermine the quality of a complainant\’s evidence and prejudice the jury long before the summing up when the directions are given. Clearly the point of Judges knowing that rape myths can prejudice trials should be so they banish them from the process all together, not allow their use by lawyers and then try to explain them away.

There is no DPP figure who can oversee and direct the Courts as Alison Saunders can give leadership to her prosecutors. There is no Court Inspectorate who can monitor performance as HMIC does for the police. In Northumbria, we will fill this gap by establishing a panel of volunteer Court Observers, probably with a complement of former victims, who will follow every sexual assault case at Newcastle Crown Court to see whether the courts are doing their share of ridding rape trials of pernicious myths as the CPS and the police are encouraged and exhorted once again, to do theirs.

They will look at other aspects of the trial too, such as whether Independent Sexual Violence Advisers (ISVAs) who support complainants throughout sexual abuse cases are allowed to accompany them in court; how Crown Prosecutors relate to complainants who, since police are trained to give evidence and defendants prepare their case with their barristers, are the only ones unprepared for what is to come and whether questioning about previous sexual history still haunts these trials. We will also look to establish our very own Police Rape Scrutiny Panel to scrutinise case files which have failed to attain the requisite evidential level of prosecution or where a prosecution has failed and look for lessons to learn.

If we are to continue to increase the proper conviction rate in rape and to prevent a consequent decline in complainant’s confidence to report, all the criminal justice agencies must play a role in ridding these trials, once and for all of the prejudice and myth which today’s announcement shows are alive and well in the police and CPS. What happens in trials can either reinforce these myths or render them redundant