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

It is good to know that rape myths are addressed at summing up though. I didn't stay for that bit.

I got the fuck out of there once my evidence was done, as I imagine most victims do!

Interesting, barefoot. If it isn't compulsory it may not be widely followed, I don't know.

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

Like a great deal of judicial directions to the jury, it obviously has to be tailored to the particular trial - e.g. if it is a stranger rape, no point giving the "not all rapists are strangers* direction.

However I have not known a trial where at least one has not been used since they came into force - usually the direction regarding the timeliness of the complaint and inconsistencies in the account.

The difficulty is where to strike the balance - the complainant may not have reported the rape because of fear / embarrassment, or she may not have reported because it did not happen. Ultimately that is for the jury to decide, but hopefully the rape myths direction helps to minimise premature assumptions.

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

It is impossible to know for sure, as the conversations of jurors are private. But it is right that they are there.

WwA was in court in 2015 as per her earlier post

Fair enough, and I am sorry for your experience, Woman.

Thank you for your input, lady. Helpful!

Happy to help.

They are difficult cases to cross examine. As a barrister, I have to invite the jury to draw inferences from the evidence. These are common sense conclusions based on their experience.

It is hard to know where to draw the line. For example, I might cross examine a complainant on the fact that she sent loving text messages to the defendant shortly after the rape took place (if the rape happened in a relationship). I would be inviting the jury to conclude that she sent those messages because the sex was consensual.

However, the prosecution could say that she was scared of him, or that she didn't know it was rape - there may be a thousand reasons for continuing to send those messages.

I think what I am trying to say is that the line between common sense inference based on experience and unfair prejudice is sometimes a narrow one.

That does not account for the more extreme examples of course, such as clothing.

Alcohol is another minefield.

I got the fuck out of there once my evidence was done, as I imagine most victims do!

Pretty much all, and if they don't (and I am prosecuting) I strongly suggest they leave. I would also suggest that they do not attend sentencing. I had to concede that the victim had not suffered "serious psychological harm". Now, she would suggest she had and I wouldn't want to minimise her suffering.

But "serious psychological harm" has a particular meaning in the context of rape sentencing - it means more than the usual harm one would suffer on being raped. I would not want any victim to have to sit and listen to that, however correct my concession was in law.

I attended sentencing (with a small MN posse). I got pissed off that 2 years were knocked off because he was a bit poorly, but otherwise I was glad I did.

Out of interest, how on earth would the court know what psychological harm the victim suffered? The fact that they seem robust and put a brave face on it is no indication, the VPS is optional (and doesn't have to cover that if they don't want), and no psychological assessment is usually conducted.

It would be through the Victim Personal Statement, medical evidence and/or interview with the Officer in Charge of the case.

It is accepted as read that any victim of rape would suffer psychological harm. For it to constitute serious psychological harm in the context of a rape sentence there would usually be medical evidence.

I am glad going to the sentencing hearing was beneficial for you.

That's ludicrous, sorry.

I wasn't offered counselling of any kind, and so didn't access any medical help, so no medical record of my various mental health issues in the period following the offence. The officer in charge wasn't the one who dealt with me in the 90s, and barely knew me. And the VPS is optional and relies on the victim being able to articulate the harm.

(I know that the harm in my case was assessed as severe so not relevant to my case, but generally the idea that the OiC or VPS are going to give you that information seems bizarre.)

In my view, the system is just wholly inadequate in many ways. The adversarial court process is not fit for this purpose, and certainly not a good way of establishing the truth. Judges & prosecutors are not nearly robust enough when it comes to ensuring defence teams behave appropriately. I think part of this is due to the fact that those involved see such poor behaviour day in day out that it skews their judgement as to what is reasonable or acceptable. None of the professionals involved in my trial seemed to think that anything that happened was particularly out of the ordinary.

And victims are bottom of everybody's priority list, even to the extent that their mental health is judged (and decisions made on that basis) without even conducting a proper assessment. Even convicted offenders get the courtesy of a proper assessment.

but generally the idea that the OiC or VPS are going to give you that information seems bizarre.

Perhaps, but there is no better way to get that information. I absolutely agree that victims of crime should be able to access any medical help that is required, but it is not the role of the criminal justice system to provide it for them.

If the information is not provided by the victim or the police, then how is the court to obtain it? The court has no right to access anyone's medical records (thank goodness) and indeed no right to any information about the victim that they do not choose to put before it. We would not force a medical assessment on anyone, and it is usually unnecessary in any event.

I find that pretty much every victim is able to write a VPS and appears perfectly able to articulate the often very sad effects the experience has had on their life.

As for your other points, I have worked in both adversarial and inquisitorial systems and I much prefer the adversarial system. I am a huge advocate of the jury system, with all its flaws.

And you are right that the system is flawed. That is down in no small part to successive government cuts to all areas of the service. They continue to drive down defence advocate fees to the point that a great deal of talent has drained from the profession, leaving, undoubtedly, a lot of a poorly trained and ineffective advocates. News articles focus on the minority of high value cases (for example the Becky Watts piece in the news today) and ignore the fact that the average criminal barrister earns about £30,000 a year.

That being said, I am proud of my profession, and I am proud of the high standards we work to. I cannot account for the professionals in your trial, I can simply say that my experience is that most barristers are very good at what they do.

Rightly or wrongly, the criminal justice system is not about the victim. It is about the state bringing a prosecution against an individual, the only parties to the case are the Crown and the defendant. In recent years, the treatment of victims has got much better, but we are still trying to decide to what extent their needs and wishes must be taken into consideration.
But ultimately, the process is about the defendant, not the victim.

I hope that you have found a measure of peace from the outcome of the process.

What do you prefer about the adversarial system?

Many things - but mostly juries. I love juries, for all the problems with the system and if i was ever on trial, I would choose to be judged by my peers over a judge any day of the week.

I also think that the concept inquisitorial system and the reality are very different things in most civil law jurisdictions.

I guess I believe that the adversarial system has just as good a chance of getting to the truth as the inquisitorial system.

There are other things too - but I am a bit tired tonight!

I hope that you have found a measure of peace from the outcome of the process.

Thank you, but I found peace by myself, it had nothing to do with the court process. I doubt many (any?) victims find peace via the court outcome. I'm still undecided as to whether it was worth agreeing to go through with the trial and testify, despite the 12 year sentence (just like the victims Keir Starmer referred to in the article I linked earlier).

Like I said, in my view the whole system is not fit for purpose when it comes to these cases. I feel it's the trial process is a big part of what keeps reporting rates so low. Victims know full well what they can expect, and it isn't good.

That's not a criticism of you personally, just the system.

"But ultimately, the process is about the defendant, not the victim."

Shouldn't the process be ultimately about justice?

I would pick a jury, if I'd done it. If I hadn't, I think I'd pick a judge.

I think I agree with that. The first part anyway - if I was guilty I'd feel far more confident of getting off with a jury. Particularly for something like a sexual offence, where widely believed stereotypes and myths (and a general unwillingness to hold men to account for sexual crimes) are likely to help it go in your favour.

You only have to look at the MN thread about the child abuser Adam Johnson to see that many members of the public will go out of their way to justify sexual crimes and support sexual offenders in a way that you rarely see for, say, burglary.

That majority on that thread are condemning him, but the MN demographic is unusual - threads on other boards are more supportive.

I also think that the adversarial system isn't actually designed to get at the truth. That isn't really what it's about or how it works, as far as I can see.

Verite March 3rd
As I say - it is for the prosecution to debunk that. The whole point Verite is the prosecution is not necessarily doing so. The prosecution may have no understanding of the many different ways a rape victim may behave.

Dame Elish Angioli's report is long but here are some parts alluding to this fact.

36 she wrote that “It is recommended that urgent steps are taken to reinforce training of police and prosecutorsabout the recurrent myths and stereotypes surrounding complainants' 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.”

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 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.^

Thank you Lady for informing us from your direct experience as a barrister with rape trials.

You were talking about the example of an alleged victim sending loving text messages to the alleged rapist.

One very counter-intuitive reaction to acquaintance/date rape can be to try to minimise or deny it - trying to make it as if the rape had never happened, or only happened accidentally. So the victim is so trying to continue with life as though the alleged rapist is still a friend.
(In the case of rape within marriages that happens frequently as it does with assaults within marriage.)
The other reason for the sort of behaviour you mentioned (sending texts or even initiating further sexual contact) could be so the victim can attempt to have the feeling of being in charge after all.

Without an expert witness like a psychologist explaining this to a jury, any victim or prosecuting barrister trying to explain themselves would be unlikely to be believed. The victim herself/himself would probably feel muddled, have no idea why they had done the texting and not be able to explain anyway if questioned.

I understand that as a defending barrister Lady you would naturally question the alleged victim about this as part of your job, though some barristers would put the question with an assured and questioning tone which would be extremely unpleasant for the alleged victim.

Without expert witness, there would most probably be such misconception about the alleged victim's behaviour you described, that, what ever the prosecuting barrister/victim said, the jury might well acquit - believing that because the alleged victim had texted loving messages after the alleged rape, it had not really been rape - when it may have been.

I am sorry that I did not respond to any posts in the last few days.
Thank you WomanWA for letting us know what happened in your case and what you think and for the links you sent. I am very sorry for your terrible ordeal not only with the rape but during your trial. All that you wrote in this thread and your knowledge about other cases apart from your own really does show that there is a huge problem with rape trials.

MardyGrave it is easy to see why you did not want to go through the trial process, and I am so sorry that you too have been through horror.
Woman Felicia User 7755's relative and Mardy I am so sorry.

Barefoot thank you for the link about the tragic case of Frances Andrade

ABetaDad thank you you explaining how from your experience as an expert witness being questioned in civil cases, you know the great disadvantage a traumatised witness would have in being cross examined..

Blue it is very interesting that you have been in a jury where you, an ordinary person, had to explain to the other jurors how a victim might react by freezing. This is an apt example of how jury members do misunderstand rape victims' actions.

Barefoot and LadyoftheLake you have explained a lot about the trial system.

LadyoftheLake thank you for your information, on how rape trials have improved more recently. I had not known about the fact you pointed out that judges are compelled to direct the jury to disregard rape myths when considering a verdict (though I noted that in the relevant CPS link about counteracting rape myths that you sent, the list of various possible victims' reactions is not particularly extensive or well explained).

I am still confused though as, in spite of that directive, the very recent Elish Angioli report seems to find that there is indeed a problem concerning the lack of knowledge on the part of police, prosecution and the jury regarding rape myths. She recommends that there should be an expert witness. A fairly recent Channel 4 documentary also mentioned it: Our figures show that the proportion of cases ending in jury acquittals has increased by 4.2 per cent over the past year. Myths and stereotypes still pervade throughout society and have the potential to influence jurors too":CPS-police guide (Channel 4 news 2014) www.channel4.com/news/rape-convictions-myths-why-so-low-england”

Apart from individual experiences of rape trials on a one to one basis - say Woman's and User7755's relative more recently and Felicia's some years ago - all as victims; Lady's as a barrister or Blue's as a jury member - it is difficult to know what exactly goes on in rape trials without transcripts and recordings (do they exist?) but here is clearly a problem with how victims are treated even recently; and a problem in the extent to which the trauma of rape and its effects are misunderstood. It is not surprising victims choose not to report rapes.