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

And you really haven't been 'attacked'. Your naiveté and ignorance has been pointed out, but that's a different thing.

As I've already said Woman fair enough.

Also, this is a side point, but calling a rape case a sex case is a bit imo. I know the media do it, but it's pretty offensive, like referring to 'child porn'. Sex isn't a crime, rape is.

I feel it'd be good if more people used language to reflect the reality of what these men are accused of - these are cases about rape, sexual assault, sexual abuse etc...

Someone wouldn't refer to a theft case as a 'property transfer case'. Because property transfer isn't a crime, theft is.

Yy to that, WwA

I understand that it is a very emotive topic, but if you are a criminal barrister or solicitor a sex case is simply the name for any trial involving sexual violence. I just wanted to point out that it is not an expression that pirate smile has made up in order to minimise the seriousness of these sorts of offences.

Interestingly as well, the prosecution barrister in the Adam Johnson case was the barrister that had previously cross examined Frances Andrade. So it is not as simple as saying defence barristers bad, prosecution barristers good.

The media use it too, so I know Pirate didn't make it up.

The fact that it's in common use doesn't make it appropriate though and I'd like to see it stop (the same with 'child porn', 'child sex party' or any of the other appalling terms the BBC happily bandy around). 'Sexual offence case' (or whatever the charge is) really isn't that hard to say.

And I know barristers work for both sides. No one has claimed that all defence barristers are scum (whatever Pirate has claimed).

That doesn't change the fact that there is an enormous amount of evidence that defence, barristers in rape cases are routinely permitted to get away with bullying behaviour and questioning, and use rape myths in a way that should have no place in a courtroom. The fact that next week they may be prosecuting is neither here nor there.

I certainly agree with you about the aggressive questioning. I have no quarrel about that. Rape myths I am not so sure about. Defence and prosecution barristers have different roles. The prosecution barrister is meant to achieve justice and if justice means acquittal so be it. The defence barrister goal is to obtain an acquittal and to act fearlessly towards that goal (within the confines of the bar code of conduct). It is their job to sow seeds of doubt in the juries mind including suggesting that certain behaviour is unlikely. It is the prosecution job to debunk any myths (and possibly in certain situations such as late disclosure - the trial judge).

We will have to disagree then.

In my trial the court spent time debating over whether I counted as a 'virgin' prior to being attacked by a stranger. The fact that this would be considered relevant at all is down to rape myths, and imo it should not have been raised at all.

(The judge concluded that I was in her sentencing comments btw - it was even raised again at that point.)

Would you also think that stating in court that a short skirt = looking for sex is appropriate?

I don't feel such statements have any place. They are not evidence.

A barrister wouldn't be allowed to argue for someone's guilt or innocence on racist grounds (e.g. "well we all know what 'these people' are like..."), so why should they be allowed to openly employ misogynist arguments? Those that do are very much part of the problem.

No of course not. Both of those suggestions/comments are entirely inappropriate and misognistic and were supposed to have been stamped out years ago and it makes me very sad to hear that they are still being peddled. However, I do think it should be permissible for a defence barrister to ask why a victim acted in a certain way and to suggest to the jury that such actions are implausible (eg why did she get back into bed etc) as that is part of putting the defendants case. As I say - it is for the prosecution to debunk that.

I think that sort if remark would fall under reasonable questioning generally, as it's part of putting the case to ask for a witnesses explanation of their actions.

The idea that comments like the ones I referred to have been stamped out is sadly not the reality though. Even well into the 21st century, clothing and virginity is considered relevant to discuss in court.

I think that sort if remark would fall under reasonable questioning generally, as it's part of putting the case to ask for a witnesses explanation of their actions.

eh ?, isn't this the question that sparked this particular thread off in the first place.

woman - it sounds as if you had the most extraordinary ordeal in your trial. 4 days of being examined in a stranger rape trial ? Really does begs the question as to what the barristers found to ask you about. What was the defence case ?

Consent. That was the what the defence was claiming.

Two days was simply going through my statement with the prosecution.

And asking the witness to explain their actions and grandstanding about what the perfect victim would/should have done are two different things. The prosecution should be robustly opposing the second.

Definitely an ordeal, as cadno says

I believe that most witnesses these days give evidence for less time than I did, as they play video statements in court.

However, mine was reported before video statements were taken (90s), so I had to go through my whole statement in court. The reason for the gap between offence and trial was because the police hadn't found a DNA match yet.

Woman

I am a barrister. I have prosecuted and defended many many rape trials. I am sorry about your experience, Woman, but things have improved significantly from the 1990s. Not perfect - but a lot better.

You may be interested to know that judges are now compelled to direct the jury to disregard "rape myths" when considering their verdict.

www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/societal_myths/

There is a line - between testing evidence and being insulting. I will robustly test a complainant's account (if defending). I will never insult them and I would like to think a judge would call me up on it if I ever did. I have never known an insult go unchecked by a judge.

Since 1999, a defence barrister must ask for the court's permission before cross examining a complainant on previous sexual behaviour.

There is also specific Rape and Serious Sexual Offences training, as well as vulnerable witness training, that most (if not all barristers) must go on.

As I said - not perfect. But better.

Lady, whilst the rape was committed in the 1990s, WwA was in court in 2015 as per her earlier post.

It is good to hear about the rape myth education though. Are you finding it makes a difference in practice?

Yes, my experience of the courtroom was very recent.

In 2010 the Judicial Studies Board published the Crown Court Bench Book setting out specimen directions for use by judges in the Crown Court.
See: www.judiciary.gov.uk/NR/rdonlyres/BE25EBB6-AAD2-4ACD-8115-28D3BF613164/0/benchbook_criminal_2010.pdf

Chapter 17 The Trial of Sexual Offences - is particularly useful for prosecutors, addressing myths, stereotypes and generalisations that may influence jury members in their deliberations. Trial advocates should be reminded to suggest appropriate directions from the Bench Book to the trial judge for inclusion in his/ her summing up to the jury.

Their inclusion in the Bench Book does not give the specimen directions the force of law. This will be conferred at such time as the Court of Appeal approves the contents of a specific direction (or directions) in a Judgement.

... Does this mean it isn't compulsory? If so, what proportion of judges do it anyway, in your experience?