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Remark by the defending barrister in a recent acquaintance rape trial

(197 Posts)
Aspensquiver Sun 28-Feb-16 17:34:15

I was wondering if anyone else feels concerned, as I do, by certain comments made by the defending barrister in the recent rape case concerning a girl student whose alleged rapist, who was a fellow student, was acquitted. The barrister told the jury the girl had got back in bed with Sridhar after the alleged rape and, Joe Stone said: 'Surely if she was raped, the last place on earth she would want to return to would be that room.' There are also various other newspaper reports of stages of the trial which can be found on-line.

I understand the defending barrister had the duty to use all means at his disposal to get an acquittal for the accused. But allowed clever oratory at any expense aside - on top of the fact that most date rape cases will inevitably end in acquittal - it is chilling that such an erroneous, ill-informed and biased statement, might have added weight to the the jurors' decision and to the already confused public perceptions of rape cases like these.

I am not hoping to restart a discussion as to whether or not the accused was in fact guilty, but to question this remark, 'Surely....':

A victim's actual reaction to rape may be very counter-intuitive for a person who has not experienced it let alone for those who may doubt this sort of rape is rape in the first place.

There is no valid "Surely..." in the sense the barrister meant.

Jill Filpovic's article below paragraph 14 for example points out that rape victims may not react as expected.

In this article even the reaction of going on to have sex with the assailant a later point after the rape is shown to be a possible reaction in order for the victim to feel control. I believe it is also possible for the victim to try to act as if the assailant, who was after all known to her before the rape is in some way a friend so as to try to deny and block out the rape or minimise it. It is also possible for the victim to lose all sense of autonomy or will. I am aware there are three well known reactions to trauma: fight, flight and freezing. This girl may have remain frozen and unable to do anything.

As to all the details of the case it is difficult to be clear, but I believe the girl was in her own room into which the alleged assailant entered too after taking her back home after a night out in the town where they had both been drinking because she was worried about being alone in the town at night. After the alleged rape (presumably having got out of bed at some stage) it was her own bed in her own room she 'went back to'. Far from it being the case that surely this was the last place she would go, in these circumstances it may well be all too likely that this would be what she might do. Where else was she supposed to go other than her own bed? And in what sort of numbed and state of disassociation, or state of exhaustion or state of self blame was she after (allegedly) having been raped?
The next day certainly a friend of hers saw the girl in a terrible state of mind.

Why is it that a court case of this kind can take place without expert third party guidance being given to the judge and jury as to how a rape victim might behave? Instead it would seem that a false premise mooted by the barrister may have tipped the already weighted balance* even further on the side of acquittal.

*It is very difficult for a jury to pass a guilty verdict because there will usually be reasonable doubt in a case like this.

DrSeussRevived Sun 28-Feb-16 21:16:22

Agree that seems like a ridiculous assertion.

FeliciaJollygoodfellow Mon 29-Feb-16 19:25:08

When I gave evidence in my own rape case, the defending barrister thought it laughable that I should wear make up and do my hair for court. He ridiculed me for the fact that I'd died my hair from blond to brown in the intervening period.

However, the first trial ended in a hung jury - the second time round I redid my hair blond just so I could throw it back in his face.

Prick. All of them.

DrSeussRevived Mon 29-Feb-16 20:06:05

God, what a twat badger. Presumably unless you had lank hair and were rending your garments to rags, then you just weren't a "proper victim"

FeliciaJollygoodfellow Mon 29-Feb-16 20:43:38

He also mentioned that it looked like I'd put on weight, had I done that to give a false representation of how attractive I was? hmm

There's not enough hmm in the world for that one! In fact I'd forgotten until just now.

DrSeussRevived Mon 29-Feb-16 20:53:29

Did the judge tell him to get tae fuck at any point?

FeliciaJollygoodfellow Mon 29-Feb-16 21:52:40

Not that I recall but it was nearly 13 years ago now.

I was the closest I've ever come to a panic attack going into that trial and I hadn't done anything wrong, other than trust the wrong person.

At the least the hung jury meant I had a second opportunity to tell my side - I was a lot stronger and told him to get tae fuck myself grin

Incidentally, he was found guilty in the end. Got 3 years IIRC.

DrSeussRevived Mon 29-Feb-16 21:58:37

Well done!

Lweji Mon 29-Feb-16 22:05:41

My question is what are the prosecutors doing?

In my limited experience of court, as jury and as plaintiff, my feeling is that the official prosecution pretty much go through the motions and do the bare minimum.

user7755 Mon 29-Feb-16 22:09:07

A relative of mine was recently in court, he was the victim of a sexual assault when he was 11. The defence barrister suggested that he was making it up or had enjoyed it because he couldn't remember what he had done with a toy the abuser had given him afterwards 'surely if you had been that upset you would have smashed it?'. He also put the abuser in the position of being the victim - suggesting that poor X had a problem with young boys and 'you have decided to exploit this'. Defence barristers are the lowest of the low.

Felicia - 3 years?! Is that all? shock

cadnowyllt Tue 01-Mar-16 09:16:08

Barristers at the criminal bar are available for instruction by defence solicitors or by the Crown Prosecution Service - they are not just for one 'side' or the other. (Having said that the CPS does employ in-house barristers - so they are in a different position.)

Felicia - such an incredible account.

DrSeussRevived Tue 01-Mar-16 10:42:40

Cadno, yes, Felicia was incredibly brave.

Typically, do CPS barristers earn less?

cadnowyllt Tue 01-Mar-16 11:07:27

Typically, do CPS barristers earn less? - difficult to say as a whole. What with legal aid cuts, I'd have thought a lot of barristers would be overjoyed to join the CPS - plus the pension they'd get. However, at the top end, self-employed QCs must be on a pretty good whack too.

Were I a young barrister with a criminal practice, I would join the CPS. (But, then one would do prosecution work to the exclusion of defence work - I think a combination of both would be important in developing your skills)

Theydontknowweknowtheyknow Tue 01-Mar-16 13:47:30

There is so little known about what goes on in one's head at that time and society's messages about rape are such that women often. blame themselves for being in that situation.

Part of it stems from men's physical strength and their inability to imagine a situation where they would feel safer staying rather than reacting angrily to a man who has just proved what he is capable of.

WomanWithAltitude Tue 01-Mar-16 20:10:06

Unfortunately this is par for the course. sad

My experience of giving evidence is similar to Felicia's. They use every possible rape myth and dirty trick, present evidence in deliberately misleading ways. The list is endless. And it's not against the rules.

Apparently the fact that my parents we separated was indicative of something bad about my character. And they insisted on claiming that I'd been 'lightly dressed' despite the fact I'd been wearing trousers, jumper, winter coat etc. (the police had the clothes as evidence).

The only way to deal with it is to hold your head high and tell yourself repeatedly that it's not you on trial, no matter how much it seems like it.

WomanWithAltitude Tue 01-Mar-16 20:16:57

In my experience the prosecution didn't intervene once, over the four days I was giving evidence, to challenge the mode of questioning.

Although like Felicia I got angry enough to get to the point where I (figuratively) was happy to tell the defence to get to fuck myself. grin

pinkcan Tue 01-Mar-16 20:30:56

The thing is, this is such a difficult crime to get a conviction on because it's one person's word against another. I know someone who was once a juror in a rape case and he had absolutely no idea whether the defendant was guilty or not. I don't know which case it was obviously, it was just the fact that after all the evidence was given, the jury still could not get to the truth.

I think that really, this is not necessarily a feminist issue - a poster upthread has said how a young boy was attacked by a defence barrister. It is an issue of how we allow barristers to behave/how the law allows them to behave - essentially making up baseless wild shite to avoid a conviction. I don't know how those people sleep at night, getting people off crimes. I don't know what the answer is sad.

PirateSmile Tue 01-Mar-16 20:57:09

Barristers don't make up baseless wild shite to avoid a conviction. They have to put forward the version of events given to them by their client. If they fail to do this, they would be subject to a complaint.

Aspensquiver Tue 01-Mar-16 21:01:55

Felicia you were very very brave. Your strength of character under this duress at the trial was extraordinary. What you went through sounds just terrible and the defence barrister unbelievably unpleasant. Imagine bringing weight and hair colour into it the argument. Thank goodness the jury saw past it all.

User7755 That sounds typically opportunistic: that the defense would taunt your relative about what he did with the toy when he was eleven and that he implied your relative must have enjoyed the rape if he did not break the toy; and that he took advantage of the 'poor man's' weakness. What is particularly nasty is that I once heard it explained by a man who had ben raped that raped boys and men are frightened to report rapes especially because, among other reasons, they have may have had an involuntary physiological response to being touched, so they already feel at fault, when of course they had not enjoyed the rape or elicited it.

I looked up the defence barrister in the recent case I mentioned. He appears from his profile page to be extremely successful and resourceful in defending crimes. For example he successfully defended murder prosecutions and complicated drug dealing prosecutions as well as other rape cases. He has often proactively employed forensic psychiatric and neurological expertise. So he would have been very skilled. The prosecuting lawyer seems well respected but there is no mention of rape cases in his profile - if it is the right lawyer I found.

Codnowylit it does seem as if skills could be honed from both prosecuting and defending. It is interesting to wonder if the outcome would have been different in the case I referred to if this barrister had been prosecuting instead of defending.

I have just read Report of The Independent Review into the Investigation and Prosecution of Rape in London by Dame Elish Angiolini DBE QC 30 April 2016 which can be found on the internet. It is a long document.

It seems that there is indeed a problem with understanding how rape victims may behave in a way that is counter-intuitive. Here is one of the paragraphs related to that:

662. The psychologists who participated in the focus groups and who are based in the Havens made clear to the review that they would be very willing to provide expert evidence to explain the physiological and psychological responses to trauma that affect how individuals conduct themselves during and after trauma. They expressed frustration that such evidence, which relates to aspects of general human behaviour not commonly understood by members of the general public, was not permitted to be put before juries to address such misunderstanding.

^ Recommendation 36. It is recommended that urgent steps are taken to reinforce training of police and prosecutors about the recurrent myths and stereotypes surrounding compainant behaviour during and following an alleged rape. Policy should be developed about the use of expert witnesses to address the current common lack of understanding that may lead juries to acquit.^


^Recommendation 37. A legislative provision similar to that contained in Section 275C of the Criminal Procedure (Scotland)Act 1995, as amended, should be considered and drawn to the attention of the Attorney general. Such a provision would codify and strengthen existing common law powers to lead expert evidence to rebut any inference adverse to the complainant's credibility or reliability that may be drawn from subsequent behaviour or statements of the complainant.
Section 275C excludes from this provision expert testimony regarding a statement or behaviour during the alleged event. It is submitted that consideration of any new legislative provision should also allow such evidence to be admitted to provide expert evidence of the range of physiological and psychological responses to trauma that may be anticipated in circumstances of acute fear or alarm. These include the automatic freeze flop and disassociation responses or behaviour of the complainant designed to avoid further harm.^

So Dame Elish Angioli QC's report understands your point Theydontknow.

WomanWithAltitude Tue 01-Mar-16 21:26:01

Barristers don't make up baseless wild shite to avoid a conviction. They have to put forward the version of events given to them by their client. If they fail to do this, they would be subject to a complaint.

So you're saying the barrister who questioned me would have been subject to a complaint had they not insinuated that having separated parents made me morally dubious and likely to be a liat? Bullshit.

The barrister in my case did put the defence case, fair enough, but they also engaged in indefensible mud slinging and misrepresenting of evidence.

WomanWithAltitude Tue 01-Mar-16 21:26:18


WomanWithAltitude Tue 01-Mar-16 21:28:00

The promotion of rape myths, in court and in wider society, is absolutely a feminist issue. Rape does affect men and boys as well as women, but it is an extremely gendered issue.

PirateSmile Tue 01-Mar-16 21:59:22

I don't know what the barrister in question was instructed to say and the point he was making seems so tenuous anyway I'm amazed he was allowed to ask the question.
Prosecuting and defending sex cases is a horrible, horrible job. Some of them do case after case and unlike the Police get no counselling. Unfortunately for justice to be served someone has to do this and it's then up to the jury to make the decision of guilt. I know it is difficult to appreciate it from this side of the fence given the bad experiences some people have but most barristers try their bloody best and are good people do a fucking awful job.

WomanWithAltitude Tue 01-Mar-16 22:19:53

Well both of the people on this thread with direct experience of being questioned have examples of inappropriate, indefensible questions and claims from defence barristers. That's not excusable, whatever their working conditions.

How much counselling do the victims who they slur in court get do you think? Because I got fuck all apart from what I sourced myself.

WomanWithAltitude Tue 01-Mar-16 22:22:11

I have no problem with some people defending criminals for a living. But the way they do it is another question.

Promotion of rape myths and character assassination by the defence appears to be par for the course in sexual offence trials; I don't know how they sleep at night.

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