Rape cases in front of a jury.

[MsMarvellous]

I have just read this bbc article about the case being brought against the CPS for its failure to bring rape cases to trial (that's the essence, there's more detail in there):

www.bbc.co.uk/news/uk-48574813

One comment that got me is that they would t bring a case as messages from the victim to defendant would be misinterpreted by the jury. Messages sent to placate him presumably in an effort to reduce the violence.

Surely it's time to look at whether a jury trial is the right way to run a rape case.

I come from a legal background. I know the notion of removing the jury of peers from a criminal prosecution cuts deep into the history, tradition and criminal justice framework. But how is it fair to women that violence almost exclusively against us a sex cannot be punished in part because of a lack of understanding.

It's different to murder/manslaughter to me. Either way with those crimes someone has died and it's usually, if not always, fairly easy to determine if it was natural or not. Then you are digging into how, who, why and when.

With rape the basic concept of consent is so skewed by individual and societal expectation and judgment of women, E.g. "She was wearing a mini skirt so was asking for it", that it's almost impossible to determine if a crime was committed just on the fact if the act of sexual intercourse taking place.

Wouldn't a panel of specially trained judges and medical and psychological experts be better to decide these cases. It still wouldn't be perfect but it might give women a fighting chance.
I would also remove cross examination in a public court. Examine the witnesses just with legal representation in a hope of removing the showboating character assassination of victims, though removal of a jury should do that too.

I wondered what others thought. Would it even be feasible? I'm so outraged at how dismissed women are. Just always, every day. And today I'm really grumpy anyway!

Maybe after the trial we could ask the jury the reasons for their verdict. I know it’s confidential but they could reply in confidence. Then the prosecution and defence could see what we’re dealing with.
The case that a pp referred to with video evidence there must have been a reason all 12 people voted to acquit.
There must have been women in that jury but they still weren’t convinced.

I was on a jury earlier this year for a sexual assault case. I was appalled by the language used by the judge and the barristers to describe the witnesses - a gossip, a fusspot, overreacting etc.

I obviously can’t talk about what happened in the jury room.
I was one of two women on the jury. You can probably imagine.

It's interesting because a good male friend was foreperson on a jury who convicted in a rape trial.

We had a long chat about it sexual assault afterwards - not about the trial but about what motivates men to rape..

He said he could never imagine how anyone could get their rocks off to penetrating someone who was 'fighting and screaming' but when I replied that many women don't scream when they're being raped it didn't really compute.

He's a bloody decent man who encouraged a jury to convict. And still he believed that the only reaction to rape is to fight and scream.

Goose foot did you read the article

There was evidence in both the cases given as examples.

On another note, I meant to say earlier, then you to the women who have waived anonymity to talk about their cases. You are incredible.

Inspiral I think they imagine how they would react to an extreme violent assault

Missing a large number of factors like usually big differential in size /strength, assailant using chosen location where no one will hear or care, socialisation etc etc

Bottom line is men in general seem to have problems empathising with women on stiff related to sexual violence from small to big, oh street harassment I'd love to be hassled by an attractive woman, if there's no violence then it's only sex what's so bad etc

Not that most of them say it out loud.

Sorry re reading

Evidence in both the cases above the main witness ie victim's evidence.

Only in this is the witness evidence so commonly disregarded by pretty much everyone

You get mugged you say who did it that is evidence.
You get raped you say who did it that is unreliable and biased.

Agree menuplant and he was also reading off the script of stranger rape 101.

No thought for the women who have TRUSTED men who assault them whilst defenceless through sleep/drugs/consented to one thing then couldn't peel the bloody man off them.

I'm still glad I didn't fight the enormous body builder friend who raped me.

I did not physically choose to react that way. It happened when he overpowered me in seconds.

HOWEVER, my body knew that it was the safest choice. Why the FUCK would I want to antagonise someone who had locked mealone in his house and was already raping me?

He'd shown me who he was. My body did what it needed to survive.

I think it’s rape culture, stupid policies within the police force,

Charging decisions are made by the Crown Prosecution Service

"Charging decisions are made by the Crown Prosecution Service"

But the police make the decision whether or not to pass to CPS and majority of times they don't. So in reality most decisions not to charge are made by police (de facto of them not even attempting to put them in front of CPS).

So - basially - as in my case you have a polie officer not trained in legal application of the law making a deision not to pass to CPS (who DO have people trained in the law).

When I complained about the handling of my rape complaint one Detetive Chief Inspector agreed that the Detective Chief Inspector who reviweed my case was wrong. Well he would be, he's not a fucking lawyer is he!

This is the justice system we have currently. Non-legally qualified police officers making their own interpretation of the law throwing in their own judgements such as "she would have told him to stop if she didn't like it".

This is British justice.

inspiralcarpet

The underwear of the Belfast rape victim was brought into court because the defense team deliberately disputed the source of the blood on it. The same underwear was then used as evidence of consent with the female barrister saying

Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone. You have to look at the way she was dressed. She was wearing a thong with a lace front.

This is where we're at at the moment, when a woman's choice of underwear demonstrates her consent to rape even when her testimony is the opposite. There could at least be evidence given by an expert witness on rape myths and judges should be striking down comments of that sort made by defense barristers (barristers who make comments like that in a rape case should be thrown out of the profession too).

Rape laws and the legal process are designed to demonstrate that rape victims weren't raped and that rapists are innocent. It's a male con game that we're all supposed to buy into.

My DD was raped aged 16. Her case was taken to trial with mountains of evidence. Due to her age, the case was heard by one sitting judge, no jury. Rapist got off, to everyone's amazement. It's not just jury trials that are broken in this regard.

I think that there is little appetite in the authorities or wider society to do anything about sexual violence against women and girls except in extreme cases.

Agreed, although it's sexual violence against anyone.

I don’t think the problem is evidence. I think it’s our rape culture. I think a jury of those who have worked in this area, both with rapists and with victims, would be a step forward.

You may be right. I was actually thinking of the kinds of cases you mentioned. Some of them are just bizarre, but from what I've seen in many of them the reasons the evidence don't seem to secure a conviction can be rather complicated. Even video evidence isn't always as clear as we'd like to thik, in so far as understanding what was really happening, and I think overall people, and so juries, are becoming more and more used to being doubtful about what they see.
What I wonder is, if you were just thinking in terms of how could you really prove a rape had taken place, what would be the ideal thing? I guess an admission of guilt? I am thinking, if you approached it very technically, figuring out how convictions are made or lost, what information would be important?

The idea of specialised juries is interesting. I think it could work, though you'd have to be careful, specialised groups sometimes can be a problem as well, they have too strong a lens and that can create distortions.

Sometimes I think that perhaps the answer is to simply accept that the law can't easily deal with rape and try some wholly different approach but since I have no clue what that would be it doesn't seem all that viable.

I don’t think a lot of men see rape as all that bad an act anymore. I think deep down they regard it as “bad sex” and everyone’s had “bad sex” so what’s the big deal?

And I think that for a lot of women there’s a primitive defence mechanism that comes into play, that doesn’t want to take in the victim’s experience.

It’s analogous to how rape is captured in film: the camera is always over the shoulder of the rapist, looking down, rather than over the shoulder of the victim, looking up. So we’re never in the victim’s point of view.

In the US, some feminists have argued for changing legal procedure such that a defence of “she consented” would be an affirmative defence requiring proof, just as self-defence in a murder trial requires proof of threat. I doubt, though, that men will ever allow that change to go through.

I don’t think the problem is evidence. I think it’s our rape culture.

This. Also what inspiralcarpet says.

I was having this conversation with a male colleague just the other day. Specifically on the topic of sexual harrassment (I'm my workplace's women's advocate) rather than fully-blown rape.

He. Just. Doesn't. Get. It. In his world, there basically seem to be two modes only: "kicking, scratching and screaming blue murder" and "it might have been innocent/consensual - we'll never know". He's otherwise and intelligent man, fully capable of grasping complexity.

What I find most worrying of all is that I believe (and, no, the plural of anecdote isn't data, I know - thrn again, owing to my side-gig I do spend quite some time talking to both men and women at work about such matters) that I'm seeing this more within the younger generation of men. My 50-year-old boss - while not exactly a feminist - just doesn't have this issue. He seems to intrinsically "get" it. Same for most my colleagues in their 40s.

It's as though we've finally overcome the most glaring societal issues just to have them replaced with a pornified view of sex and landed right back on square one all over again.

Having said that, IMO there's something to be said for the non-adversarial European trial system. I'm an expat and I've attended a trials both on the continent and in the UK. What struck me about the continental model was just how professional it seemed. No dramatics in the court room. The victim getting to leave while the accused testified (because, to the judge's thinking, apparently preventing further trauma outweighed some vague Enlightenment notion of being able to look your accuser in the face). Just a bunch of factors that, in summary, struck me as altogether more professionally driven. Now, to be fair, trials I've seen in the UK were never about sexual assault. The one on the Continent I've witnessed was. Drunk, scantily clad victim stumbling out of a club and running into her assailant. He got convicted to several years anyway. I thought that quite impressive.

Pam or anyone else who directly works in this area.

In your opinion has the policy environment changed in the police force or at the CPS or is it both? And if so why?

You don’t get a drop in convictions of 44% without some dramatic institutional change in how things were previously done. What caused this huge and catastrophic change?

In your opinion has the policy environment changed in the police force or at the CPS or is it both? And if so why?

If anything, policy changes ought to have resulted in more convictions, but haven't. Judges have 'standard directions' to juries including the warning that they have to set aside their assumptions about how a victim and a rapist ought to react. We don't know whether the judges directions make any difference.

In CPS, rape cases are only handled by specialist and highly trained lawyers. Police investigators too are highly trained in building cases - particularly in carrying out interviews with suspects.

In 90% of cases the victim and rapist are known to each other (Source:CPS). The defence will exploit that relationship to the max.

There are disclosure rules of evidence where the police are obliged to reveal any information that would undermine the prosecution case and hand it over to the defence. The defence will exploit those photos, texts, CCTV images, phone records and facebook things to the max.

There is a very good explanation by the CPS in which they outline the system and policy changes. They describe their role as independent, dispassionate analysts, weighing up evidence and deciding whether or not there is 'a realistic prospect of conviction'.

"Key Facts about how CPS prosecutes Allegations of Rape"

www.cps.gov.uk/sites/default/files/documents/publications/Key-facts-about-how-the-CPS-prosecutes-allegations-of-rape.pdf

Thanks so much for this info Pam

What I find most worrying of all is that I believe (and, no, the plural of anecdote isn't data, I know - thrn again, owing to my side-gig I do spend quite some time talking to both men and women at work about such matters) that I'm seeing this more within the younger generation of men. My 50-year-old boss - while not exactly a feminist - just doesn't have this issue. He seems to intrinsically "get" it. Same for most my colleagues in their 40s.

I wonder if that is related to generational changes, or its more a matter of age and experience.
I find the sexual harassment at work question very fraught. Between the two extremes you mention people seem to have wildly different preferences and expectations about what is appropriate or desirable, and they don't seem to fall on the divide of sex either. I've seen or experienced a few workplaces that tried to deal with it by saying no dating, romance, or sex between employees was allowed, but that also seemed unworkable as people simply broke the rules and kept it quiet. I'm now inclined to think that unless there can be a collectively accepted set of societal expectations and circumstances that people will actually follow, there will be significant grey areas that are likely to be exploited by jerks without much that can be done.

At a basic level completely unrelated to crime two individuals spend several hours in a room alone together they come out and have entirely different accounts of what unfolded in said room. How do you propose discerning truth?

It’s not so much it’s the Jury that is the weakest link here it is that the proposition of whose recollection is most accurate and more likely to be true?