Remark by the defending barrister in a recent acquaintance rape trial

[Aspensquiver]

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.'

www.telegraph.co.uk/news/uknews/crime/12172708/Cambridge-student-found-not-guilty-of-rape.html 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.
www.cosmopolitan.com/college/news/a30507/sexual-assault-misconceptions/

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.

www.channel4.com/news/rape-convictions-myths-why-so-low-england

Oh course not Pirate and I think you know very well that I'm not but in my experience a good proportion are and that's not good enough. Even if 1% are immoral that's far too much for me.

Not all barristers are immoral, but enough of them are, and the courts let them get away with enough nastiness to ensure that women are put off reporting and trials are heavily influenced by rape myths and character assassination of the victims.

I disagree with you about the word malicious but not doubt your friends will come storming in and tell me I'm stupid

I agree that 1%is too many. I've always made it clear in here I'm speaking for the decent 99%. I hope people are decent enough to appreciate that.

A malicious person is nasty, but not necessarily a liar.

A malicious complaint or rumour is likely to be untrue.

Word meanings change depending on how they're used, and when used about a person the word malicious does not mean liar.

I don't think you are stupid and no one has called you that.

I do think you are wrong. Good night.

I think 99% is way too optimistic....

Thank you, I think it's true bravery to be able to go through with the process, and I admire any woman who can do what you've done WomanWith.

It's such a horrific crime to inflict upon somebody, not only for the assault itself but the hideous ripple it seeps into your life. The doubt and anxiety, I truly feel we lose a part of our dignity and belief in the bubble we surround ourselves in of right and wrong, of justice.

I've been physically defiled, I couldn't allow a court to morally and emotionally defile me as well, so publicly.

You are a loss to the diplomatic service barefoot

Don't be snide, pirate.

Agreed Mardy I didn't report my assault either. Don't think I'd have had the courage to at 17 years old.

Do you feel there will be a change in our lifetime pirate? That people will feel able to report the crime of rape in the same manner as any other crime?

I don't remotely qualified to comment on that. I do despair at the way the bar (and consequently the judiciary in time) is regressing. It's becoming dominated by wealthy Oxbridge types because of the incredible cost of qualifying. I don't think this is healthy. I don't know what the future holds for the criminal bar as fewer young people want to practice it because of the low pay and because it's incredibly stressful. It's far from being perfect but we'll miss it when it's gone.

Pirate - given that Lord Carloway quoted a barrister saying "You are a wicked, deceitful, malicious, vindictive, liar?" why would you can you be amazed if a barrister said that? The evidence is there - it was said and went unchallenged in open court. It's not just something someone made up

It's a side issue but strictly speaking Lord Carloway did not quote a barrister as Scotland has advocates not barristers.

Clearly the line of defence did not work as there was a conviction , upheld on appeal. I don't do criminal law but that sort of overly dramatic, badgering of witnesses can backfire with the jury.

It may not have worked in that case, but very often it does work. Rape myths etc do influence juries. And even if it didn't work, it shows that we have a court process that allows privileged professionals to publicly bully rape victims. It happens routinely, and it appears to be viewed as fair means by the courts.

Francis Andrade's rapist was convicted, so the bullying of her didn't 'work' in that respect, but she isn't around to get any comfort from that, is she?

Sorry - Frances

These tactics also definitely do 'work' when it comes to conviction and reporting stats.

If women are deciding not to report or dropping out of the process because of this (which they definitely are), then these tactics are keeping the reporting and conviction rates low. They are keeping large numbers rapists out of prison and silencing vast swathes of women.

It's absolutely not morally neutral, and it is definitely a feminist issue.

Witnesses (which is what the victim is) can be challenged without this discrediting stuff. I was a juror on a case involving personal (non sexual) assault. The defendant's barrister questioned the victim as to how well he really saw the accused, whether he knew the accused from before etc but without any language like the above examples.

And rape myths DO work, they utterly convinced the jury I was on and I spent most of the deliberation period educating them on flight, flight, freeze responses and trauma.

Why does it have to be a juror educating others?
Why can't the prosecution do that? Or the judge?

Witnesses (which is what the victim is) can be challenged without this discrediting stuff. I was a juror on a case involving personal (non sexual) assault. The defendant's barrister questioned the victim as to how well he really saw the accused, whether he knew the accused from before etc but without any language like the above examples.

It depends on the circumstance of the case. It seems in your case, the defence had no bone to pick with the complainant having been assaulted. That an assault had taken place, was not in issue - it just wasn't this particular defendant that had carried it out. So the defence was that of mistaken identity.

With the sort of rape case I think we're envisaging, there is no issue over identity - the issue is whether the offence has taken place. Complainant says it did, the Defendant says it didn't. The defence has no option but to discredit the Complainant. By the same token, the Prosecution's case is based on the Defendant having concocted his defence - and he's lying through his teeth.

However, I whole-heartily agree that defence counsel should not use the type of language as used in the above Scottish case.

It is entirely possible to challenge the complainant's account and highlight inconsistencies without promoting rape myths, slating their character in a manner that has nothing to do with the actual evidence and using bullying and intimidation tactics (verbal or non verbal).

You shouldn't have to be the 'perfect' rape victim to be assured of fair treatment in court and have a fair chance of getting justice. After all, you don't have to be a perfect victim for other crimes, including those where it is the offence rather than identity that is disputed. (Rape is far from being the only offence where that can be the case)

I have never heard from a rape victim who's been through the trial process and felt it was all reasonable. Keir Starmer pointed out the problems two years ago:

"For many victims the adversarial journey through our courtrooms is such an ordeal that most vow never to repeat it. The way some victims and witnesses in the sex-grooming trials were treated makes very uncomfortable reading for any politician, lawyer or judge. When, as prosecutors, we approached some of the victims in those cases to give evidence in subsequent trials, the response was pretty well unanimous, and very clear: in capital letters in a letter to the CPS, the message was literally "fuck off". They would rather the perpetrators went free than repeat the exercise."

www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-system-victims-law-public-prosecutions

But yeah, let's keep telling ourselves it's inevitable and reasonable rather than listening to those who have experienced it, or those who are experts and know that we need to see changes, like Keir Starmer.

Powerful stuff from keir Stamer.

I've done a bit of asking around about this and found out that there is now a pilot scheme in two regional crown courts where barristers have to run their questions past the trial judge before they examine a witness in a sex case. Apparently, anything that is unfair, aggressive etc will instantly be disallowed. I've also been told that the aggressive style of questioning is now 'dying out thank god.' Basically anybody who uses this type of questioning is viewed as a bit crap anyway and the direct quote was 'I treat witnesses with decency and respect. You get more out of them that way as in life.' This is from somebody who does a lot of sex cases. They told me that all the courts at the crown court they are appearing at we're dealing with sex cases which is because thankfully victims are still coming forward.