It is in rape that the law crashes up against the rawest display of the continuing power imbalance between men and women. It is the perfect example of the inadequacy of legal reform in challenging the more immutable forces operating in the system. The conviction rate for rape in Britain is still the lowest for all serious crime, despite increased reporting. Over the past decade the numbers of reported rapes have doubled but only 7% of complaints ever lead to conviction. Very few rape cases proceed to court because a huge number are withdrawn. This is often because women cannot face the legal process. Despite all the efforts to improve the system, the stumbling block is that the woman knows that cross-examination will publicly expose her to all the double standards that confront women in our society and it will be her word against his. As recently as 2013 when Neil Wilson, 41, was convicted of underage sex with a 13-year-old girl, she was described by the prosecutor, yes the prosecutor, as ‘predatory in all her actions and sexually experienced’. The accused was consequently given an eight-month suspended sentence. The inclination to blame the victim, whatever her age, lives on – it is the classic response to crime in the private arena. Nowhere is this more clearly visible than in the handling of rape cases. Women know that it is difficult to secure a conviction; they make their own calculations as to whether they are prepared to go through with it. Of the cases which do proceed to trial, the conviction rate in rape is 37% when the general conviction rate for crime across the board is 73%.
The word ‘no’ is at the core of a rape trial. A ‘no’ may be taken for granted when a respectable woman is attacked by a total stranger in a dimly lit street, but since the vast majority of rapes are committed by men known to the victim, consent in rape trials has always been an issue which makes men very nervous. Where does seduction end and rape begin? It is like the old lawyer’s joke about how to tread the fine line between tax evasion, which is criminal, and tax avoidance, which is every reasonable man’s goal in life. As with rape and seduction, it is all supposed to be a matter of technique. Getting a woman to submit is an acceptable part of the sexual game plan, and straying across the line a ready peril for any man with a healthy sexual appetite. The notion that women, having been pressed into submission, will melt into the experience and find pleasure in it often erases responsibility for violence, fear and humiliation.
When I first started practising at the Bar attitudes were much more stark than they are now. At legal dinners, rape jokes used to be constant. Did you hear the one about the woman who claimed she was raped and ran from a house clutching a doormat to cover her nakedness? Counsel for the defence asked if there was a ‘Welcome’ on her mat. Or the old chestnut about the woman who was describing the act of penetration by her attacker. ‘He put his penis into me,’ she said. ‘Well, let’s leave it there until after lunch,’ suggested His Lordship.
The behaviour of real judges in court was often scarcely better. Despite advice from their brethren that they should watch out for mantraps containing snarling feminists, judges used to take on the furies like demented lemmings, oblivious to the likely rage which would follow their inane comments. They would say extraordinary things – that women who dressed sexily were ‘contributory negligent’ or that women who did not want sex ‘just had to keep their legs shut’. After every outrageous statement made by a judge in a rape trial there would be calls for sackings and questions in the House. The judge in question would be publicly silent but privately bewildered, asking colleagues where he went wrong.
A lot has changed since then, and there is agreement that sexual activity should be based on mutuality, with no coercion acceptable. Today’s judges are much more savvy and circumspect about their utterances. They understand that women’s anger about the handling of rape cases is not confined to wild feminists but is an indignation shared by most women, including their own wives and daughters. However, myths and stereotypes still plague the process.
‘Victim of his libido’ is a recurring theme in the mitigation plea for a convicted rapist. If a woman has been in any way familiar, we are presented with the old idea of man, the overheated engine, incapable of switching off. We are to treat him as the functional equivalent of a handgun, something intrinsically dangerous. The same hackneyed thinking underpins the new market in protective products – from anti-rape knickers featuring reinforced fabric and combination locks, to nail polish that changes colour when dipped in a spiked drink, to hairy stockings designed to quell a rapist’s ardour. Products like these only make sense if we accept that rape is a fact of life, from which we women bear responsibility for protecting ourselves. But rape is not inevitable. Men who rape are responsible for their own actions, and the focus must always be on holding them fully to account.
In the view of some men, a woman’s ‘no’ is covered in ambiguity, not to be taken seriously if she is vivacious, friendly and seems to be ‘up for it’; if she dresses provocatively; if she goes out late at night or has had sex with others before. There is an irrational theorem that if a woman has sex with Tom and Dick she is more likely to have sex with Harry. It is hard to get across the idea that a woman is entitled to have sex with the whole of the football team but draw the line at the goalie. Having a lot of sex also apparently does something to a woman’s capacity for truth. Sometimes, according to the Boy’s Own theories about women, an initial refusal is a female ploy to play hard to get in case men think they are easy or cheap. It is not enough to say ‘no’. The underlying belief is that deep down women want sex but do not always know their own minds. Until as recently as 1991 a married woman’s ‘no’ was meaningless, since a wife was not supposed to deny her husband his conjugal rights. There was deemed to be no such thing as rape within marriage. The real problem is that it is an exercise of male power to subject a woman to sex, and when women say ‘no’, they challenge that power.
Even in the last 10 years, attitudes to sex have shifted in ways that can be very alien to the older generation of judge or juror. Once the preserve of those with greater sexual experience, oral sex has become mainstream and expected among young people, sometimes the first sexual act girls engage in. The very language of sex has lost much of its potency, and sexually vivid and aggressive words are now commonplace in much casual conversation. In online communications from emails and texts to tweets and WhatsApp, people describe sexual activity and desires in ways that are shocking to many older people. Modern television programmes are more explicit, with sex treated increasingly like every other commodity, something to which you are entitled. The biggest hit TV show of recent times, Game of Thrones, has been criticised by feminists as gratuitous and sensationalist in its use of rape. A new wave of self-proclaimed ‘pickup artists’ school their students online and at masterclasses in questionable methods for getting women into bed. Every year, one or two horrendously misjudged advertisements cause controversy by appearing to condone rape or sexual assault – like the US department store advert that encouraged men to spike their friend’s Christmas drink, or the online retailer that invited customers to take advantage of its sale offers with the slogan ‘Rape Us Now’. It is not just consensual sex that sells.
The way women are socialised not to offend also helps keep the lines blurred. We are still encouraged to be sensitive to the feelings of men, to avoid telling them they are simply not fancied. Excuses are supposed to be better than rejection and confused messages may be communicated. ‘I can’t, I’ve got my period’ – ‘I have to go home’ – ‘I already have a boyfriend.’ The recitation is endless: all to avoid saying the hurtful ‘no’.
As a rule, such blurred lines don’t come into play in the trial of the stranger-rape, happening at knifepoint in the dark of night. Everyone, male and female alike, is united in their sense of outrage. Yet even in these cases, distinctions drawn between worthy and unworthy women affect the strength of that outrage, as we saw in the investigation and media coverage of the Yorkshire Ripper case in 1981. The whole tone of the police appeals to the public changed once it became clear that the victims were not ‘only’ prostitutes and that all women were at risk.
Still today the police frequently fail to act on women’s complaints and put countless other women at risk. Former black-cab driver John Worboys was a prolific sexual offender who drugged and sexually assaulted scores of women in the back of his London taxi. Claiming to have won the lottery, Worboys persuaded women travelling alone to toast his good fortune with champagne that he had laced with sedatives, before raping and assaulting his unconscious victims. Despite an allegation of sexual assault being made as early as May 2003, the police failed to arrest and charge Worboys until February 2008. In July 2007, Worboys was arrested on suspicion of sexual assault, but was subsequently released and went on to assault seven more women before finally being charged and convicted of rape and sexual assault. An investigation by the Independent Police Complaints Commission found numerous failings in the police’s handling of the complaints. Inconsistencies in Worboys’s account were never followed up, there was no search of his home or taxi, and he was not re-interviewed when new information relating to the case came to light. The police mindset appears to have been that a black-cab driver simply wouldn’t get up to this sort of thing because his cab has to be licensed. Similar institutional failings left serial offender Kirk Reid free to assault an estimated 80–100 women in south London between 2001 and 2008, despite being known to the police since 2002. Reid was eventually convicted of two rapes and 24 sexual assaults in 2009.
The Worboys and Reid cases help to demonstrate why the official CPS rape conviction rate of 57.9% only tells part of the story. That figure refers to the conviction rate in cases where the police decide to refer a rape allegation to the CPS, and the CPS decides to prosecute. It provides a snapshot of conviction rates among the strongest cases, but reveals nothing about cases of unreported rape, or cases in which women struggle to get their complaints heard. According to figures compiled by the Home Office, the Ministry of Justice and the Office for National Statistics in January 2013 in ‘An Overview of Sexual Offending’, approximately 85,000 women and 12,000 men are raped every year in England and Wales. That means 11 rapes per hour. One in five women between the ages of 16 and 59 has experienced some form of sexual violence since the age of 16. The Ministry of Justice estimates that only 15% of women who suffer serious sexual assault report it. Large numbers of rapes also go unreferred or unrecorded. The pressure on police to meet inflexible targets can be intense. In 2013, it emerged that officers based in Southwark’s specialist sexual offences unit had been encouraging women to retract their allegations of rape, so that no crime was recorded and the proportion of recorded crimes proceeding to prosecution was artificially inflated. The same year, a serving police constable called James Patrick blew the whistle on widespread under-recording of crime by the Metropolitan Police, including in relation to rape. In evidence given to the Home Affairs Public Administration Select Committee, PC Patrick stated that sexual offence victims who were vulnerable because of mental health or substance abuse issues were particular targets of police pressure to retract.
Since these revelations and the public debate around Jimmy Savile, Rolf Harris and Harvey Weinstein, official statistics have shown a sharp increase in the number of recorded rapes. This is largely due to improvements in police recording practices, as well as the increased willingness of victims to come forward.
But this improvement in recording has not been matched by a corresponding spike in conviction rates. One of the serious problems for women is that their own phones, computers and tablets can often provide material that can be used evidentially to undermine their credibility. It is also the case that while women have become much more sexually independent and confident, they are still judged differently from men when it comes to their sexual behaviour.
In December 2017 the case against a young man called Liam Allan was stopped mid trial when it came to light that the police had failed to disclose vital evidence of text messages, in which the young woman who accused him of rape had described rape fantasies to other men, and told a friend about the acts with Liam Allan, saying, ‘It wasn’t against my will or anything.’ The police officer conducting the case had failed to pass on the material from the woman’s phone to the CPS and it was only disclosed when the prosecutor asked if there was any relevant content on her mobile phone. The police have a duty to pass to the prosecution any material which will assist the prosecution or the defence. The evidence had been available for two years so not surprisingly the man who was accused had a deep grievance about the fact that it hadn’t happened. In the same week another case was dropped at a sexual abuse trial, again because of failure to disclose. The two cases raise important issues about police conduct in sex cases. There is nothing new in the police failing to disclose evidence which can exonerate an accused. In my own experience of many miscarriages of justice that is exactly what happened. Sometimes it is deliberate malfeasance but now it is often about under-resourcing of the police and prosecuting authorities. Swingeing cuts of 40% of the budget of the Ministry of Justice have left the system on its knees. There is currently serious concern that the police have little digital forensic capacity to examine computers and phones, and miscarriages of justice are taking place across the court system with wrongful convictions as well as wrongful acquittals. However, the tabloid press immediately jumped to the conclusion that this was all about political correctness with the police rushing to judgement on innocent men. I saw no such urgency to expose overzealous policing when it was Irish defendants in terrorist cases who were at the receiving end of non-disclosure or when it affected young black defendants in robbery cases. The pressing question is not why so many men are wrongly charged. It is why so few are charged at all. Why do so many alleged rapists continue to go unprosecuted?
In 2002 Professor Liz Kelly was commissioned by the Crown Prosecution Service Inspectorate to review research into rape in Britain and abroad so that we might have some understanding of the issue. Her review was included in the report of the Prosecution and Police Inspectorates and it suggested ‘that at each stage of the legal process, stereotypes and prejudices play a part in decision making’. Since Professor Kelly’s report, the CPS has appointed specially trained rape prosecutors, and police forces are increasingly training specialist officers who can provide sympathetic and expert support to rape victims. But the real problem, which persists today, is that the approach generally taken by the police and prosecutors is based on whether they believe a prosecution will succeed at trial. As PC Patrick commented in his evidence to the select committee:
[The police] are working to the charging standards, which is well beyond the remit of what we are there to do. We do not do deciding guilt. That is the court, that is the justice system. We gather evidence and put it before the justice system. Effectively, we are usurping that in some way by pre-empting it with our own decisions, based on those standards, which is inappropriate.
Inappropriate indeed. Yet when making decisions about how to record an alleged rape, or whether to seek a conviction, police and prosecutors routinely anticipate the kind of cross-examination to which the woman will be subjected and a judgement is made as to whether she will survive the test. This involves evaluating the complainant against the ideal victim, who is preferably sexually inexperienced or at least respectable. Respectability is becoming more and more difficult to characterise as women go clubbing, drink in ‘unladylike’ quantities and are also more prepared to have uncommitted sex than previous generations. They lay out their sexual activities in their texts and emails, distribute photographs of themselves undressed or with little on, or they may give expression to Shades of Grey fantasies of sadomasochism or even rape. Sadomasochism has its roots in subservience, inequality, feelings of guilt, shame and unworthiness. Men and women have absorbed these feelings, and misconstruing the voluntary surrendering of agency is utterly ill-conceived. None of those behaviours should prevent a woman saying ‘no’ when she does not want to have intercourse. Yet increasingly that seems to be the price paid for women choosing to be as sexually independent as men. Women are asked questions which are never put to men about why they were out alone in the street or in a pub or at a disco. They are asked about their clothing: the tightness of the fit, the absence of a bra. They are asked about their use of contraception. If a woman is middle-aged and perhaps divorced, frustration and loneliness are presented as motives for her consenting to sex with an unlikely partner.
Twenty years ago there was extensive debate about women being cross-examined on previous sexual relationships, and legislation was passed to limit this (section 41 of the Youth Justice and Criminal Evidence Act 1999), but much of the cross-examination which does not fall under that heading is almost as objectionable. Few women escape the inquisition and possible humiliation of cross-examination by the barrister of an inventive defendant. Well versed in the unspoken rules of the courtroom, defence counsel summon up pictures of the woman out on the town, scantily dressed and drunk on cider. They know that getting blitzed and binge drinking set the stage for an acquittal. In 2017 a retiring criminal judge called Lindsey Kushner used her last trial to comment that while there was no excuse for rape, women were more vulnerable, and less likely to be believed, if they had been drinking. Her remarks caused a furore and were roundly condemned by campaigners for blaming victims not rapists. It is true that victim blaming is a real problem, but there is also no denying that, sadly, Judge Kushner was articulating one of the many unspoken prejudices that can and do affect a jury in a rape trial.
The victim is often totally unprepared for the defence’s attack on her reputation, and the prosecution is not usually allowed to call evidence in support of her good character. Sometimes simply asking a question can be enormously damaging, even if the defence has no real evidence to back it up. ‘Is it not the case that you were smoking cannabis earlier that evening?’ ‘You took Ecstasy at the club, didn’t you?’ ‘You are a user of cocaine, are you not?’ Juries assume the lawyer knows something; the denial still leaves a lurking doubt about the kind of woman she is.
In October 2004 two Surrey policemen stood trial for rape. They had been called out to help a woman who had been assaulted in a fracas in the street as she came out of a nightclub. By her own account she was very drunk, and one of her friends had wanted to accompany her when the police asked her to get in their car so that they could drive around to find her assailant. They refused to let the friend come. When the policemen, PC Mark Witcher and PC Andrew Lang, took her back to her flat, she thought they were going to take a statement but instead, according to the woman, they both raped and sexually assaulted her, pulling her around like a rag doll and shouting obscenities at her, telling her she was a slag. The men left laughing and afterwards boasted to colleagues in the police force that they had ‘spit-roasted’ her, both penetrating her at the same time, one orally, one vaginally. It spoke volumes about the police culture that they felt uninhibited about recounting their behaviour.
Despite being on duty at the time, both officers contested the case on the basis that the woman consented; DNA from semen was found on her skirt which meant it would have been difficult for them to suggest that nothing had happened. In cross-examination, the woman was subjected to the usual litany about her clothing and her drunkenness. ‘Why didn’t you shout to waken the babysitter? Why didn’t you go to the doctor? You were ashamed of what you had done, weren’t you? You made this up because you were concerned that you would lose custody of your children, concerned about the new relationship you were enjoying at the time. You decided to turn this tale of consensual sex into one of rape, didn’t you?’ They were acquitted of rape. They were sentenced for having sex while on duty and it was then revealed that they were known in the force as sexual predators and the Assistant Chief Constable accepted that this allegation was not ‘a one-off act.’
Defence counsel’s words highlight the twist in the nailing of women. ‘You are not a true victim. You are the victim of your own behaviour that evening,’ he said. True victimhood has very demanding standards, and not all women are perceived to measure up. According to the 2013/14 Crime Survey for England and Wales, 27% of respondents believed that a victim of rape or sexual assault was at least partially responsible if they were drunk at the time. These harmful rape myths can continue to have an impact even if a conviction is secured. The Criminal Injuries Compensation Authority provides compensation for blameless victims of violent crimes. There are several documented instances of women having their compensation reduced because they had been drunk when they were raped.
Judges are now required to undergo specialist training before hearing rape trials, and they must ensure that no questioning of the complainant is carried out in an unduly harassing or degrading manner. The circumstances in which cross-examination of sexual history can take place might now be limited, but the ways that women can be denigrated in the eyes of a jury are extremely varied.
A woman might be asked whether her vagina was naturally lubricated to enable penetration, thereby encouraging the jury to infer that some gratification was being found in the sexual contact. Or her reliability as a witness is challenged on the basis that her true sexual nature and desires are so repressed that she has now reconstructed events and believes them herself. Her credibility is thus being challenged, not on the basis of her lying, but of her not even knowing that she is lying!
To explain away multiple acts of rape, a gang rape or physical injury, defence lawyers may even suggest to the jury that many women are turned on by group sex, enjoy kinky sex or a ‘bit of rough’. There is no winning. Without the physical signs of resistance, such as bruising, it is (automatically) assumed that the victim consented or is subject to female rape fantasies; where she does bear the signs of attack she is challenged as a masochist.
And then of course we have the state of a victim’s mental health. On the one hand psychiatry is mistrusted in the courtroom as hocus-pocus which distracts jurors from the main issues, but on the other it can prove very useful in undermining the value of testimony. The slightest hint of anything that might affect the mind can jeopardise a case.
I have heard it suggested to a woman in a rape case that she had a history of mental illness. This was in fact a breakdown under the pressure of taking her university finals, from which she rapidly recovered. The suggestion was used to undermine her, portraying her as someone whose mental stability was questionable and might lead to her making irrational allegations. Suggestions of instability cling to women much more readily than to men, and even a mention of going to psychotherapy in search of self-enlightenment is confused with mental illness. The leaps involved in such innuendo are never examined, and the damage can be irreparable unless the woman is given time to explain at length whole areas of her life which have no relevance to the proceedings.
One of the most shocking cases in recent times involved the trial in Belfast of four men who played for the Irish national rugby team. The complainant was a student who described in evidence going out with friends to celebrate the end of exams. They had gone to a club where that evening there were both soccer and rugby players at the bar. At the end of the evening there was an invitation to a party back at the home of one of the players, Patrick Jackson. In the course of the evening the young woman said she had gone to the bathroom upstairs and was pushed into a bedroom and then forward onto a bed by Jackson, who then pulled her trousers down and penetrated her vaginally from behind. He had also tried to force his fist into her vagina. A player called Stuart Olding then joined them and on her account forced her to perform oral sex on him while she was being penetrated by his teammate. Then a third man entered the room, Blane McIlroy, whom she described exposing himself, masturbating, and saying he wanted in on the action. When she ran from the room, pulling on her trousers, she was bleeding from her vagina onto her clothing. A fourth man called Rory Harrison saw the state she was in and got her into a taxi and dropped her off at home. The taxi driver testified that she was crying and sobbing in his cab. And that he heard Harrison on the phone say to someone ‘She is with me now. She is not good. I’ll call you in the morning.’ The following day he texted her on the number he had asked her for the night before and she replied ‘what happened last night was not consensual.’ She was still bleeding from her vagina and said in evidence that, because she was face down, she could not see if a condom was used so she was anxious to have the morning after pill. She attended a clinic and when examined by a doctor she was found to have a tear to the wall of her vagina which was still bleeding 30 hours after the events. When the doctor testified he had to accept when questioned by the defence that he could not say if the tear was caused by penile penetration. This was because the men all claimed that no penetration whatsoever took place and she had simply voluntarily performed oral sex on two of them. The blood must have been from her period.
The men belonged to a WhatsApp group with a few other male friends. In an exchange the day after the events McIlroy posted: ‘What the fuck was going on? Last night was hilarious.’ A message has then been deleted but it seemed to have come from Harrison saying that the complainant was very distressed and alleging rape. McIlroy responded: ‘Really. Fucks sake. Did you calm her? And where did she live?’ Harrison replied: ‘Make no joke. She is in hysteria.’ He added that it wasn’t going to end well. Other postings about the week asked: ‘Any sluts get fucked?’ The response from Olding was: ‘Pumped a girl with Jacko on Monday. Roasted her. Then another on Thursday night.’ ‘Love Belfast sluts.’ The claim of ‘roasting’, the Crown suggested, meant that while one accused was penetrating her vaginally another was penetrating her orally but this contradicted the account of the men who insisted there was no vaginal penetration. The defence claimed that this was just male banter, juvenile boasting, a sideshow which should have no relevance or evidential value.
The complainant was in the witness box being cross-examined for eight days. Her clothing was presented to the jury. Her briefs were shown to demonstrate that there was some blood on them, as in evidence she had said she had not put them back on after they were pulled off with her trousers. The defence barristers claimed she must therefore have been having a period and the blood was not from damage caused by any forced penetration. The court, which is the biggest in the UK, had a public gallery with 100 spectators. The witness was behind a screen, as is now permitted in sexual cases, so at least she could not see the size of the crowd of onlookers, though she probably knew. Celebrity sportsmen turned up in the gallery to provide moral support to their friends in the dock. The complainant was accused of inventing the allegations because she was ashamed that she had participated in group sex. Minor contradictions were put to the woman who explained that ‘In that situation you don’t scream because you are so scared. You underestimate the shock you go into after being raped.’ Her use of the impersonal ‘you’ allowed the defence to suggest she was recounting things she had read. Inconsistencies between the men also existed.
The men were acquitted to a rapturous response from their fans as they left the court. No one noticed what happened to the young woman. What we do know is that her protective anonymity was cancelled out as she was repeatedly named and shamed on social media. Whose shame are we talking about here?
It is not uncommon for rape to summon up long-learned fears whispered into the ears of boys about the fickleness and deceit of women – fears that women are vindictive and bitter, that they will stop at nothing to trap a man and stoop to anything to make him pay; fears that the line which separates rape from seduction is easily crossed, and any decent fellow is at the mercy of an unscrupulous female. A speaker from Fathers4Justice told the boys at my daughter’s school that they should prepare their defences now for false allegations of rape because the law is now so skewed towards the female of the species that men are being wrongly imprisoned. In fact, the reverse is true. The number of women who claim to have been raped when they have not is extremely small, and is far outweighed by the number of men who rape. A report published by the CPS in 2013 found that over the seventeen-month period under review there were only 35 prosecutions for making false allegations of rape, as compared to 5,651 prosecutions for rape. Yet despite the evidence, the spectre of a woman willing to falsely accuse looms disproportionately large in the collective male psyche and receives similarly disproportionately prominent coverage in the media. And yet there is no question that women rape complainants often struggle to get the police to take their allegations seriously. Those who retract their claims, under police pressure or the emotional strain of the investigative process, risk prosecution for making false rape allegations under laws which are enforced much more aggressively in the UK than in comparable legal systems.
Lawyers are past masters in the art of subtle discrimination. In 1976 Judge Sutcliffe, when discussing the corroboration rule, gave the game away by reminding a jury that ‘it is well known that women in particular and small boys are liable to be untruthful and invent stories’. It was interesting to speculate about when exactly the moment of transition takes place, and lying little boys become truthful male adults. Judges would never make such a comment now but defence lawyers still plant the suspicion that women aren’t upfront about their willingness to lead men on.
Of course, there are women who lie. There are a few misguided or malicious women who make false allegations of rape, and it is essential that the strong protections for defendants which exist within our system should be jealously maintained. There are also women whose mental state may be fragile and who may feel abused in the aftermath of intimacy to which they seemed to consent. While these cases are rare, a fair and due process means evidence has to be tested and proof has to be of a high standard if someone is at risk of losing their liberty. These processes and standards protect women, too. I often have to debate with women who want the standard of proof to be lowered in rape cases to secure more convictions, or who suggest that the burden of proof should be passed to the accused, meaning that the man should have to prove beyond reasonable doubt that he secured consent – a total reversal of how our legal system works. It has even been suggested that we make sex without consent an absolute offence with an automatic acceptance of the woman’s word that she did not want the sex. To do any of this would inevitably open the doors to serious injustice and we have to guard high standards with all our energy if we want to live in a free society.
In 2017, Jemma Beale was jailed for 10 years for making a series of false rape and sexual assault claims against 15 men, one of whom was sentenced to seven years in prison following a wrongful conviction for rape which was based on her false testimony. In my view, the courts are right to imprison women for making deliberate and calculated false allegations of rape. If women campaign for rape to be taken seriously, then on those rare occasions when a woman does make a false complaint she must bear the consequences.
But because of the myth that women frequently invented allegations of sexual impropriety by men, the law used to require corroboration in rape cases to support the woman’s testimony. Her word alone was insufficient. A ludicrous situation arose in a case where a man broke into a woman’s house, burgled the premises and then raped her. The judge had the task of explaining to the jury that it could be dangerous to convict on the uncorroborated evidence of the woman in respect of the rape, but not dangerous so far as the burglary was concerned. An overhaul of the rules on corroboration has put an end to the judicial warning to juries that women can be untrustworthy except in Scotland where the rule still stands. The judge’s direction in the rest of the UK has now been reformulated, putting the emphasis on the jury’s right to convict should they believe the woman’s evidence and reminding them that all women are still entitled to say ‘no’. What is still not emphasised enough is that a woman may consent to sex but she is entitled to say ‘no’ if a man introduces acts or activity to which she does not consent. She may be content to have vaginal intercourse but only with a condom. She may agree to vaginal intercourse but not want to be penetrated anally. And while she may want to be with one man, she may not be willing to have sex with all his teammates at the same time. At each stage of intimacy a man should be saying ‘is this OK?’ If it isn’t OK, it’s rape.
The credibility issue at the heart of the rape case is worth examining. Many of the decisions juries make daily in our courtrooms when they assess witnesses and facts are based on credibility. Are rape cases rendered special by the sexual component? Is rape different from other offences of violence because of the profound emotions and complicated psychological responses that men and women have to sex? Yes, it is different, but not so different as to invite a completely separate set of values. In most cases juries can spot false from reliable evidence without judges or defence counsel wading in with half-baked theories about sexual neurosis and female fantasies and the need to approach a woman’s evidence with special caution.
Juries gauge the truthfulness of witnesses in the way that we all do – by watching their demeanour and listening to their account, especially when it is being tested under cross-examination. Sometimes inconsistency counts against someone, though it may be utterly explicable given normal failure of memory or the trauma of events. Sometimes people lie about insignificant issues because of a misguided notion that the truth will count against them. There are times when this is fatal to a case, because juries then worry about what part of a witness’s evidence they can believe. At other times the quality of detail and the sheer certainty with which the witness testifies on the crucial aspects of a case leave them in no doubt as to where the truth lies. Additional evidence from an independent source does make the task easier. Convictions inevitably follow more readily if there is supportive evidence, and the police have to be trained to be more proactive in securing it.
Yet the very nature of rape tends to locate the crime in the privacy of a closed room, in dimly lit streets, in the shadow of darkness. There are rarely eyewitnesses. Forensic evidence may prove that intercourse took place or, with the new genetic testing of semen, confirm the identity of the assailant. But in the majority of cases the defendant is not denying that he performed the sexual act. The issue is whether the woman consented. Judges and juries are more convinced if they can see torn knickers and proof that the victim was beaten, but even the signs of resistance have to be more than the odd bruise, which defendants explain away as the result of vigorous sex-play and playful pinching. The paradox is that the requirement to show that they put up a fight flies in the face of everything we are told about self-protection. As one victim said when interviewed about her experience, ‘Everything I did right to save my life is exactly wrong in terms of proving I was telling the truth.’
Most rape-prevention education advises women not to invite greater harm by fighting the assailant, who may have a weapon. The extensive reporting of cases where women have been raped and then killed confirms that the violence may not stop at the act of rape, and it may be better not to antagonise the attacker. The persistent cross-examination ploy of defence counsel is to deny that fear might paralyse the victim and to insist that a woman guarding her virtue would fight like a lioness. We are still haunted by powerful cultural images of what good women do in the face of ravishment. In a long literary tradition which begins with Livy and Ovid, Lucretia fights off her attacker and refuses to yield to his threats. The deed done, she takes her own life. In Lorenzo Lotto’s famous painting in the National Gallery, there is a note on the table by the victim’s side which declares: ‘NEC ULLA IMPUDICA LUCRETIA EXEMPLO VIVET’ (We would have no immoral women if Lucretia’s example were followed).
What all this means is that, if there is little independent evidence of the complainant’s account, it is one person’s word against another, and judges and juries are thrown back on the impression made by the victim in the witness box. It is as though she were the person on trial. Indeed, in one case a Canadian judge repeatedly referred to the complainant in a rape case as ‘the accused’. He also asked the complainant – who alleged that she had been raped while sitting on a basin – why she did not just prevent the rape by sinking lower into the basin, or closing her knees together. At one point, he responded to her evidence that the rape had caused her pain by saying ‘sex and pain sometimes go together – that’s not necessarily a bad thing’. The judge was found guilty of serious misconduct and has since retired.
Navigating these issues requires a judge who truly understands the offence of rape. The Equal Treatment Bench Book is a guide that is distributed to all judges. It now contains a section which expressly debunks a number of the most potent rape myths, including the mistaken belief that rape victims should put up a fight and show signs of injuries, or that stranger rape is invariably more traumatic than rape by an acquaintance. To combat the theory that consent can be assumed from dress, flirting or boozing, judges are encouraged to tell juries that if a man flashed his bulging wallet around in a pub and then had it stolen, no one would say that the person who stole it was not really a thief.
Another common myth is that genuine victims report rape immediately. Judges are now entitled to tell the jury that ‘experience shows that people react differently to the trauma of a serious sexual assault. There is no one classic response … You may think that some people may complain immediately to the first person they see, whilst others may feel shame and shock and not complain for some time. A late complaint does not necessarily mean it is a false complaint.’ The evident truth of this statement is made even plainer by the steady flow of people only just now coming forward to say they were victims of historical sexual abuse. It is crucial that judges use their summings-up to give directions to the jury which combat the misconceptions about rape that eddy and swirl around the courtroom.
In 2002, the House of Lords decided that a woman could be cross-examined about her sexual history if the purpose was to support a man’s claim that he honestly believed she consented. As long ago as 1991 I advocated that when a man claimed that he honestly thought a woman was consenting even if she was not, there should be an objective test – would a reasonable person have thought she was consenting (if she was saying ‘no’ or was asleep or was drugged)? In the Sexual Offences Act 2003 the government changed the law to embrace my suggestion. The change remains very controversial and raises the question as to whether such a divergence from the normal criminal rules is justifiable. I think it is and should be strengthened. In the debate of that legislation in the House of Lords, Viscount Bledisloe chose an unfortunate but telling example to define the normal rules: ‘If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the general test of the criminal law.’
In a case of theft, it is enough that a defendant genuinely thought that the item had been abandoned even if most normal people would think it unlikely that someone would abandon a ladder or bicycle or a rundown cottage in the country. The jury would simply decide whether to believe the accused. With the new objective test in the rape case the jury would have to decide whether it was reasonable for the accused to think the woman was consenting. It would not be enough for the accused to say ‘yes she was saying no very loudly but I still think she really wanted me’. Or ‘yes she was crying and began to bleed vaginally but I just thought she was menstruating.’ Would a reasonable person believe she was consenting?
The question is whether the protection of human beings, not property, from a profoundly damaging experience might justify higher expectations of behaviour, a greater care and respect for the humanity of others, than is seen in other areas of the law. In the same debate one of our retired judges Lord Lloyd, speaking about rape, very sensitively enunciated its kernel: ‘the forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable’. Gay men and lesbians do not feel any differently even if the form of intimacy is different. Forcing intercourse or sexual acts upon someone, securing their engagement in sexual activity through fear, is a corruption of lovemaking and good sex. Yes, sometimes people do it casually and without any reference to love, but that does not negate the fact that it is the way we have found to express that profound emotion. That is why sexual offences are so lasting in the damage they do to lives, contaminating what is precious. It is why sexual offences are different, involving an ‘abuse of intimacy’, and it is why we may deal with them differently.
That does not mean reversing burdens of proof, forcing the accused to prove their innocence, but it does mean prohibiting negligent disregard for the other. If human rights mean anything we are here walking on human rights terrain. The law now spells out a range of circumstances, not exhaustive, in which it will be presumed there is no consent. One example is if the woman is asleep, unconscious or too affected by alcohol or drugs to give agreement. Some men claim that the reforms place an impossible burden on them to show that the woman agreed to sex if she had a few drinks beforehand. But this is wrong. It will not be for the man to show that the woman consented. The prosecution will still have to show that she didn’t. Nor has it created a new hazard for women. The rule that a woman cannot agree to sex if she is too drunk is already well established in law and dates back to a case in 1845. It is a statement of the obvious. Rape is a denial of personal autonomy and a woman who is asleep, unconscious or in a state of extreme intoxication is in no position to say ‘no’. An unreasonable belief that she consented must not provide a defence and judges should be emphasising this when summing up the law.
Suggestions that ‘real rape’ should be distinguished from ‘date rape’ are often floated, with proposals that a subcategory of the offence should be created with a less odious name, to encompass forced intercourse between acquaintances – as though it were inherently different. In 2011 Ken Clarke – about one week into his tenure as Justice Secretary – gave a radio interview in which he appeared to distinguish between date rape and ‘serious’ rape. These sentiments reflect not only a distrust of women but a misappreciation of the crime. There are indeed degrees of seriousness in rape, but that does not alter the elements of the offence. Differentiating the degree of seriousness should happen at the point of sentencing, and it should be done by assessing each case individually, within a sensible sentencing framework which recognises that rape psychologically damages its victims. Sentencing guidelines were revised in 2002 so that rape by a known defendant should be treated as seriously as rape by a stranger, because all the psychological research showed that it was often just as traumatising.
Rape campaigners have tried to shift the perception of rape as being a crime about sex towards an understanding of it as an offence of violence and power. However, for many men violence equals force, a male threat which they understand. They fail to appreciate that there are many other, less explicit, ways in which men can cause women to fear them. It is the absence of actual force which often persuades people that something less than ‘real rape’ has taken place. Yet as Baroness Stern noted in her 2010 review into the handling of rape complaints: ‘[the law] says that one person having sex with another when that person has not agreed to it is rape. The law does not say force has to be used for it to be defined as rape. Violence is not part of the definition. The absence of consent is the defining factor.’
Again, there are calls for a total ban on cross-examining about sexual relations with persons other than the accused. I am not in favour of total bans as life has taught me that there is invariably a case where one would want to see an exception made. Over and above the question of consent, some discretion has to be left with judges as to when questions about a complainant’s previous sexual activity may be relevant. I have myself acted in a case where a 13-year-old girl accused her stepfather of rape. She had been having sex with a stepbrother whom she loved and she feared would be prosecuted if their relationship came to light. After she had a miscarriage she was questioned about who had made her pregnant and named her stepfather. She may have been telling the truth about her stepfather’s abuse but she may also have been covering for the stepbrother. The jury was entitled to know the full facts.
An application under section 41 of the Youth Justice and Criminal Evidence Act 1999 must be made to cross-examine about sexual history. If the only object of such cross-examination is to show that this is the kind of woman who consents, it is not supposed to be allowed. Because a woman has consented to sex either with the accused or with anyone else in the past does not mean she should be denied the right to be believed about her allegation.
The fact that a woman has gone on websites like Tinder and Bumble to meet potential sexual partners in what seems to be an indiscriminate way is invariably problematic even if it has nothing to do with the rape allegation before the court. The very notion that a woman is prepared to have casual sex with a stranger still weighs heavily against her despite her claims that she would only actually have sex with someone to whom she was attracted. Judicial warnings will be given but they rarely expunge the bias that will already have been created. If the case in point emanated from a contact made through a hook-up website, there would be little hope of a conviction.
Unfortunately, applications to ask such questions are not being made early enough in the proceedings so that the Crown and the judge can carefully evaluate the relevance of such evidence. Sometimes, they are not made at all but the judge allows the questions anyway. Sometimes defence lawyers just chance their luck and ask a question which is then stopped but by then it is too late. The judge too often lets matters proceed, all too aware of the costs already incurred in having the trial. The evidence should not be admitted if its only purpose is to impugn the credibility of the complainant, but it is often hard to separate out relevance from prejudice. The decision to quash the original conviction in the Ched Evans appeal has further blurred the lines. The Court of Appeal judges decided that evidence from two other men who had had sex with the complainant should have been received as it suggested that the complainant had a predilection for unusual sex. The claim was that the complainant had had sex on all fours with vaginal penetration from behind and had said ‘Fuck me harder.’ Leaving aside the question of whether the evidence was truthful, the fact that judges in their sixties thought that this was unusual sexual behaviour said a lot about their own sexual experience and their lack of familiarity with contemporary pornography in which this behaviour is standard. As a result of this decision judges are now even more inclined to allow sexual history to be adduced in evidence.
Research conducted in Newcastle throughout 2017, commissioned by Vera Baird QC, the Police Commissioner there, exposed the wholesale failings of the current rules on excluding sexual history in rape trials. Such observations of actual trials are the only form of research that sheds light because if a man is acquitted of rape there is no review of why this was the result in a case where the evidence was strong. There is no analysis of judges consenting to cross-examination on the women’s sexual life and why. There clearly needs to be stricter guidance to judges on how to handle rape cases and better training. There has to be a presumption to exclude any cross-examination on sexual history, save in the most exceptional circumstances. If necessary, this presumption should be enshrined in new law.
In Facts of Rape, Barbara Toner quotes a police officer: ‘A good witness relives the experience in court. She doesn’t hold back her emotions. If she wants to cry, she bloody well cries. If she wants a drink of water, she asks. She re-experiences the feelings she had at the time. A bad witness will frustrate the court.’
Of course, women who have been raped use different coping devices just to live with themselves after the assault, and some are able to draw upon reserves of composure and poise which can work against them with the judge and jury. Others manifest signs of rape trauma syndrome, including a strange distancing from the event, which makes them seem cool and unemotional. The very resources a woman uses to assuage the horror of the experience can be held against her by police officers, lawyers and judges at her trial.
Often the one thing a victim cannot bring herself to do is to relive the event before a courtroom of strangers. The reason for a rape victim’s inability to ‘emote’ may be nothing to do with her credibility but a direct result of the rape itself. Again, this is something a good judge should be able to explain to a jury.
Women frequently describe their trauma in the courtroom as a further abuse. This may sound hysterical and exaggerated, but part of the problem is that a woman’s powerlessness in the trial evokes all the feelings of powerlessness that were experienced in the original rape. In 2003 Ms M. told the Fawcett Commission on Women and the Criminal Justice System, ‘Six months ago I could not understand why a woman would not wish to bring her attacker to court. My own experience has taught me otherwise.’ This is partly because the woman complainant has no lawyer. She is no more than a witness being called by the Crown, subject to the same constraints as any other witness. American films like The Accused mislead British women into thinking they will have their own barrister who will talk them through the issues. In reality, counsel for the prosecution is constrained from spending too much time talking with a complainant under the Bar’s professional rules. It used to be forbidden altogether but now counsel can introduce herself and explain the procedure; however, care has to be taken to avoid any question of coaching. The process seems remote and unconcerned with the woman’s feelings.
Taking on a rape case is a complex proposition and not just because of the pitfalls of the process. The professional code of conduct of the Bar requires that you accept any brief that comes your way. This is known as the ‘cab-rank’ principle. Every barrister is asked regularly by perplexed lay people how they feel about representing someone they know to be guilty. For my own part, representing clients who are probably guilty is rarely a problem; it is representing those you think are innocent which induces sleepless nights. However, the polite answer we all give is that it is not our role to judge guilt or innocence; we concentrate instead on evaluating and testing the evidence and putting our clients’ cases as they would themselves if they were representing themselves. If every lawyer refused to act for those whose conduct is reprehensible, many unpopular people might go unrepresented or be represented by a limited section of the profession. And there is another important consideration. If a barrister were able to pick and choose his or her clients, endorsement would follow from having a certain counsel and, conversely, failing to secure eminent counsel would emit a damning message.
Yet many female barristers declare an instinctive ambivalence about rape cases. It is never our function as defence counsel to judge the guilt or innocence of our clients, and as women at the Bar we adhere to that principle just as men do. In practice, some women rely upon the goodwill of the solicitors who brief them, and hope that rape cases will go somewhere else. Otherwise they grit their teeth and get on with the job, trying to conduct the case without the use of sexist innuendo. Others have no problem, because they will not entertain considerations of sexual politics. As in any other case, they see it as their duty to use every legitimate tactic to undermine the other side, and if that means reducing the witness’s moral value in the eyes of the jury, that is the course to be taken.
The debate has engaged me as a woman and as a lawyer for many years. I have defended men charged with rape and secured their acquittal. I have felt ashamed as women I am cross-examining flash angry eyes at me for betraying them. Rape separates the girls from the boys. The fundamental difference in the way that men and women perceive rape has affected the conduct of cases, the nature of admissible evidence, and the pattern of sentencing by judges. If the criminal justice system were more even-handed in the way that rape is investigated and tried, women lawyers would feel less compromised by the role they are expected to play. Women should conduct rape cases, prosecuting and defending, because we should be setting the standards as to how cases should be conducted. I was sacked by a client in a sexual assault case because I said it was irrelevant that the complainant had on some previous occasion stood on a bar stool and performed a striptease. The accused was not even present at the time and had only heard about the incident after his arrest. I have no doubt that some other lawyer would have tried to find a way to get this piece of extraneous prejudice in by the back door but ask that same lawyer whether he thinks it is acceptable to use material to play on racial prejudice and he is unlikely to agree.
The prison sentences passed on convicted rapists have greatly increased in the past twenty years. There has been growing acceptance of the profound psychological damage caused by sex crimes and this is reflected in the sentences. Sentencing guidelines make it clear that lengthy jail terms should be the norm for rape. Yet cases of poor charging practices in the first instance and then early release or early parole in cases of serial rape call into question the assessment of risk posed to women by rapists as they come back into the community.
The controversy surrounding John Worboys’s parole is a vivid case in point. It is estimated that in total Worboys drugged and raped over 100 women and yet he was only prosecuted on 12 sample charges. He was convicted of just one rape charge and five assaults after a trial which forced some of his victims to testify against him. He was given an indeterminate sentence with a minimum of eight years and his victims assumed that the indeterminate nature of his term was to reflect the multiplicity of his crimes. Subsequent to his being charged many more women came forward giving very similar accounts of assault and rape. At no time during his trial did he accept responsibility for his crimes, and when some of the women took civil actions against him after his convictions, he still maintained his innocence. None of this suggested a man who had acknowledged his offending behaviour. Yet in January 2018 the Parole Board announced that he would be released imminently as he ‘no longer posed a risk’. His victims were given no forewarning. When demands were made by MPs to explain the rationale for his early parole they were told that the Parole Board does not give reasons for its decisions. The lack of transparency left profound concern as to the quality of the evaluation of Worboys as a risk to women. Carefully plotted rapes and assaults on such a scale with such a level of cunning and ability to deceive would seem to indicate a serious pathological disorder and deep misogyny. The presumption of a need to detain would be high. The puzzle is what persuaded the board to consider him suitable for release if not their own shared view that the offences were not so grievous and that he had miraculously mended his ways. A number of his victims secured the right to challenge his early release on the grounds that the assessment of risk by the Parole Board may have been flawed.
As a result of public pressure, some of the cases which were never pursued are being re-opened, and legal reform is going ahead, requiring reasons be given for Parole Board decisions. A good move. Women are entitled to know why the decision was made that Worboys posed no risk. However, we are not entitled to say he should never come out. The right to fundamental justice has to be there for men as well as women. Because women have been so badly failed by law does not mean we should lock men up on lower standards of proof or automatically assume the credibility of all women. Campaigning groups have a tendency to forget that we cannot be choosy about whose human rights matter. They should by definition be available to all, even those we suspect have committed egregious wrongs. A fair trial is the only way to deal with serious malfeasance.
Now, there is controversy once again about whether defendants in rape cases should be identified before they are convicted. Defendants were briefly granted anonymity by legislation which was introduced in the mid-seventies only to be repealed ten years later. The issue rocketed back onto the agenda in 2010, when the coalition government pledged to extend anonymity to men accused of rape. The pledge was subsequently dropped, but the debate rumbles on. One argument in favour of defendant anonymity is that the stigma associated with rape is such as to cause lasting damage to the accused’s reputation, even where no formal charge or conviction results; this is the ‘no smoke without fire’ rationale. Another argument is that since rape complainants are allowed to remain anonymous, it is unfair to require defendants to be named.
I accept that there are some problems with negative publicity in rape cases, particularly where a person is investigated by police in respect of a rape claim but never charged. However, I cannot agree that defendants should be entitled to anonymity once they have been charged. The public naming of a person charged with serious sexual offences is crucial because it enables other victims, who may not originally have gone to the police, to come forward. We are seeing this almost every week in relation to some or other case of historical sex abuse. The argument for equality with rape victims is also misguided. The law allows complainants to remain anonymous because we know that rape remains an overwhelmingly under-reported crime with nowhere near as many convictions as rapes. Anonymity helps women to deal with the fear, shame or embarrassment which they may feel at coming forward. Indeed, granting anonymity to defendants in rape cases, but not in trials for theft, burglary or attempted murder, risks reinforcing the myth that women are more likely to lie about rape than about other crimes. This is another example where there is a false equivalence between men and women in the name of equality.
In the rape debate it is very easy for the arguments to become so polarised that eyes are closed to the problems on both sides. In the early days of campaigning for fairer procedures I offered myself as a volunteer adviser to a group involved with the issue. My services were turned down because it was known that I defended men on rape charges and would not accept a rule against defending in such cases. As a lawyer concerned with civil liberties, you have only to be familiar with the travesties which took place in the American South, with the regular framing of black men for the rape of white women, to appreciate the problems in a society filled with competing prejudices. Class also plays its role in rape; a middle-class woman making an allegation against a working-class man is more likely to be believed, and the tables are turned for a middle-class male accused if the woman is less socially acceptable.
Once, after I spoke at a conference, a senior police officer sympathetically pointed out that there was anxiety about publishing a racial breakdown of conviction statistics in rape cases, because so many offenders were black. Such figures, however, reflect more upon the underlying attitudes which prevail in police stations and courtrooms than upon any particular tendency of black males to rape. On racial grounds, black men probably lose much of the male solidarity which surrounds rape, especially if the complainant is white. Black men too have to deal with the weight of mythology about their sexual appetite, their lack of control, the size of their equipment and their desire to punish white men by taking their women, all of which tells against them in the courtroom. In the morass of prejudice, black women have the hardest time being heard and securing the protection of the courts. Black victims face both the rape myths that confront all women, and stereotypes of black women as more likely to consent to sex, more sexually experienced and less likely to be psychologically damaged.
When I ask women magistrates and lawyers who know the system what they would do if they were raped by an acquaintance, many say that they would think twice before exposing themselves to the legal process. Men in the law express the same reservations for their wives and daughters.
Yet progress is being made. All police forces now have officers specially trained to deal with rape, and most have specialist sexual offences units. Many forces now have sexual assault referral centres, which give victims access to women doctors, counsellors and specialist non-uniformed officers. There is no compulsion to prosecute but attending the centre enables the securing of forensic examination for any future trial should the complainant decide to proceed. These centres should exist in every city and one per police force is not enough. The Crown Prosecution Service has established a network of specialist prosecutors who are trained to prosecute rape cases and who share knowledge and experience among themselves. Independent Sexual Violence Advisors provide long-term emotional and practical support for rape complainants throughout the investigative and court process. The Stern Review found that ISVAs do sterling work in helping complainants to cope with the trauma of making a rape allegation. However, as with so many other public services, the ISVA network is vulnerable to uncertain funding and budget cuts.
Discussions about rape unearth profound feelings once you move beyond the trite condemnations. This chapter has focused on those rapes which are perpetrated on women by men. But it is important to recognise that rape can take many other forms. Men also suffer rape at the hands of other men, and contrary to popular myth, this is true whether they are gay or straight. While the legal definition of rape requires penetration with a penis, there are rare instances of women sexually assaulting men with dildos or other foreign objects. Men who are abused in these ways have to deal with the enormous societal prejudice that their victimhood somehow makes them weak or emasculated, or springs from their effeminacy. There is growing awareness that sexual abuse can happen within lesbian relationships, and one day the law may sufficiently evolve so as to categorise such abuse as rape rather than mere sexual assault.
All of these offences can be devastating for their victims, and any modern discussion about rape must acknowledge that it is a more complex and multifaceted crime than has ever been appreciated. At the same time, it remains true that the vast majority of rapes are an exercise in male power over women. The subject is complicated because of the confusion with genuine intimacy which invades the emotions of everyone in the courtroom. It is never going to be simple, and women are often just as confused as men are. The singularity of the law of rape stems mainly from a deep distrust of the female accuser and from the fact that sexual relations are seen from a male perspective. Male lawyers and judges to this day say that rape is an easy allegation to make and a difficult one to defend. In my experience the reverse is true; the charge is hard to bring, but it is still too easy for a guilty defendant to avoid justice.
It is important to acknowledge that ‘asking for it’ responses do not just arise in relation to rape. Half of all female murder victims are killed by a current or former husband or lover. Under the old common-law rules, the male defendants in these cases were permitted to mount a defence of provocation, claiming that it was the conduct of their wives or partners that drove them to kill.
Within the male stronghold of the court it was all too easy to create the feeling that a woman had it coming to her. Pictures of nagging, reproachful, bitter termagants who turn domestic life into hell on earth were painted before the jury. Man-haters skilled in the art of cruelty were summoned up to haunt the trials of men pushed to their limits. In one case, a man was freed by the court after killing his wife because her snoring had driven him over the edge. One dead wife who became known as the Lady in the Lake was described by defence counsel as ‘an aberrant piece of humanity’. He meant that she had committed adultery and did not make the beds.
Other defendants also secured lesser sentences by invoking their wives’ infidelity. Described in the old cases as the highest possible invasion of a man’s property, adultery came to be seen as severe provocation which justified the cuckold in killing his wife, and often her lover as well. Rather than questioning the deeply gendered and possessive attitudes which drove husbands to commit so-called ‘crimes of passion’, the courts often simply accepted that the red mist of marital betrayal rendered men less responsible for their actions.
These attitudes were the common currency of our criminal courts until disturbingly recently. On 3 December 2002 a number of cases were reconsidered by the Court of Appeal at the behest of the then Solicitor General, Harriet Harman, who argued that the sentences had been too low in the circumstances.
Mark Paul Wilkinson and his partner had been in a relationship for approximately eight years and had two children. According to the victim’s family, Mark was suspicious and jealous throughout their time together and had been violent to her. They separated, and shortly afterwards Mark lured his former partner to his flat on the pretext that they would be meeting a counsellor. Within half an hour of arriving the victim had been suffocated. According to the accused she told him that she wanted to settle with a new boyfriend and would like him to adopt the children. Mark saw red and pressed the life out of her. He was sentenced to four years’ imprisonment for manslaughter on the grounds of provocation. Darren Suratan was sentenced to three years and six months for killing his partner, who died of a subdural haemorrhage after being repeatedly punched about the head. His story was that she kept falling over because of her drinking. Leslie Humes, a solicitor, stabbed and killed his wife Madeleine during the course of an argument at their family home. She had just told him that she had feelings for another man, with whom she intended to have a sexual relationship. He was given seven years after his plea to manslaughter was accepted without any resort to a trial. None of the sentences were changed, and many of us criticised the Court of Appeal for failing to affirm the irrelevance of sexual jealousy to considerations of criminal culpability.
In 2009, the Coroners and Justice Act abolished the old common-law defence of provocation, and in its place introduced a new statutory defence of loss of self-control. Today, a defendant must show that a qualifying ‘trigger’ caused a loss of self-control which resulted in the killing, and that a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint, would have reacted similarly in the circumstances. One of the key aims of this legislation was to get rid of the courts’ leniency towards husbands in adultery cases. The 2009 Act therefore expressly provided that the defence could not be ‘triggered’ by the victim’s sexual infidelity. The idea was that a murderous husband would no longer be able to point to his wife’s adultery as evidence that she had ‘brought it on herself’.
The Lord Chief Justice at the time, Lord Phillips, caused controversy when he publicly expressed misgivings about doing away with a sexual infidelity defence altogether. But His Lordship need not have worried. The legislation has since been interpreted in a way that allows evidence of the wife’s adultery in by the back door. In 2010, Jon-Jacques Clinton noticed posts on his wife Dawn’s Facebook page that made him suspicious that she was having an affair. When he confronted his wife about the suspected infidelity, she told him that she had had sex with five different men. She also went on to taunt him about not having the ‘bollocks’ to commit suicide, and said that she expected him to look after their children in future. Clinton then beat and strangled his wife to death. At trial, the judge held that the 2009 Act required the court to disregard Dawn Clinton’s infidelity, and that her other jeers had been insufficient to trigger the defence of loss of self-control. The Court of Appeal disagreed. While sexual infidelity could not on its own suffice to trigger the defence, it still formed part of the relevant context which the court could consider in deciding whether the defence was established. Evaluating the impact of Dawn Clinton’s verbal taunts in the context of her infidelity, the Court of Appeal concluded that her husband was entitled to plead loss of self-control. On the first day of his retrial, Clinton pleaded guilty to murdering his wife. He was later sentenced to life imprisonment.
The Clinton case shows that despite the good intentions of Parliament, the law continues to measure a man’s criminal culpability by reference to the character or infidelity of the woman he kills. Wives and girlfriends are expected to be faithful, loyal and obedient, and women who transgress these standards are viewed as partially culpable in their own murder. Of course, it is almost inevitable in murder trials, regardless of sex, that the conduct of the deceased is called into question. But attacks upon the character of women victims often have a particular quality, and it is no longer acceptable to evaluate a woman’s conduct, directly or indirectly, by reference to outdated standards of morality. Wifely obligations of fidelity were originally based on the need to secure the succession, and ensure that those carrying a family’s name were entitled to do so. This was all before scientific advances meant that DNA could conclusively prove paternity. These are also less pressing concerns in a society which is more relaxed than ever before about casual relationships and unmarried partners.
The fact that a murdered woman can never present her own side of the story makes it particularly important to confront any bias in the way she is portrayed in court. I have known families and friends of the victim to listen in horror from the public galleries to descriptions of those they know and love that bear no relation to reality. A sexual liaison described by defending counsel as the height of betrayal might, viewed through an alternative lens, simply be a natural consequence of the breakdown in the relationship between the defendant and the victim. Media portrayals of murder cases can be equally problematic; a recent report by Femicide Census highlighted the sympathetic write-up which perpetrators often receive in the press. Twenty-six years on from the publication of the first edition of this book, it is depressing to have to type these paragraphs. But it remains apparently necessary to repeat that women who nag, cheat or lie, or those who drink, enjoy sex or dress as they choose, deserve the law’s protection just as much as anyone else.