The criminal law harms rather than helps victims of sexual violence

It seems clear that the problem of proving sexual offences has influenced the police and the CPS, whom believe only the most blatant cases, can succeed. Evidential rules seem to be rooted in long standing and incorrect beliefs about women.  Since cases of sexual offences are often decided purely on the victim’s evidence, there cannot in a majority of cases be such clear cut guilt to convict in accordance with the rule of law. Thus allowing the defence an excuse for using evidence to unnerve and discredit the victim. The admission of such evidence clearly causes upset to the victim, but it cannot be denied that it is essential to all aspects of the criminal justice system that the rule of law is upheld. Thus, providing an argument that in order to protect the community by upholding the rule of law, the victim must experience such upset during the trial. In protecting the community by upholding the rule of law it can be argued that the victim herself is being protected as part of that community. However, this is a tenuous argument as victims of sexual violence experience re-victimization in the community as a result of a not guilty verdict, and suffer other harms during their experience with the criminal justice system, which can be easily seen to outweigh the value of the protection they are ‘receiving’ by the protection of the rule of law.

The problem of evidence in rape cases arises mainly in relation to the victims own evidence. It is common for the victim’s character to be seemingly put on trial. Evidence such as mental health history is often brought into the court room. It is apparent that jurors are likely to attach significant importance to psychiatric history, as this runs alongside the long standing myth that in cases of sexual harm false allegation are rife.  The admission of mental health history of the victim is likely to distort the juror’s fact finding ability and may also have the result of deterring those with past psychiatric problems from coming forward. This is a significant danger, since those with psychiatric problems, past or present, may fear them not only been made public but having the humiliating experience of their problems being used against them in the trial. Since one in six people in the UK are estimated to suffer from some form of mental illness it is clear that the admission of such evidence can be damning to more than just the minority of victims. The law could in theory make this situation better, by requiring leave before such evidence is admitted to the court, allowing the judge time to weigh up the relevance of psychiatric evidence. At the time being, it is clear that the admission of some evidence is opening victims of sexual harm up to a humiliating and traumatising experience, the existence of which may deter them from the criminal justice system altogether.

It is not only the way the victims medical evidence is admitted and used at court that may be distressing and embarrassing for them. There is also a clear problem in the way in which forensic medical evidence is gathered. Temkin’s study in Sussex and London provides a clear picture of how the system is currently working and the dissatisfaction of not only the victims but the police and on occasion the doctors themselves.  Many victims have to wait a significant amount of time before seeing a doctor, often being refused food and drink and unable to shower to remove the sperm on their body. Without doubt, this can cause significant trauma and upset to the victim.  The experience of seeing a doctor is however, much improved on the old situation in which the victim was examined in the police station, with the introduction of specialist suites. In London, the guidelines require that examinations are done in these suites; this is undoubtedly a step forward in helping the victim feel comfortable. However, there are no such guidelines in many areas of the country, with Doctors preferring to do the examination at their own surgery, meaning the victim has to travel causing further delays until they are seen.

Alongside this, the taking of medical evidence has another inherent problem. Many doctors do not make it clear to the victim that it is not a conventional doctor patient relationship, but rather they are examining purely for the purpose of evidence to be given in court. This itself raises ethical issues, in relation to consent, as for consent to be valid for any medical procedure it is to be informed and voluntary, in this situation, with doctors giving little information, it would seem the victim is rarely making valid consent. The ethical discussions of consent are outside the realms of this essay; the point here is that doctor’s give little information to the victim who can feel betrayed when the information is released to court. It also provides an example of how victims are treated with little respect for autonomy by doctors, which cannot bode well in court when the validity of the victim’s evidence comes under inspection.

Another significant problem here is the amount of evidence the doctors take. It is clear that the sole purpose of the doctor’s examination is for forensic evidence. It is therefore hard to justify why the doctor takes medical history, including family history, sexual history and smoking and drinking habits. Clearly, this cannot be justified on the basis of the one off encounter. This routine of taking reams of medical history, helps the defence to play on common stereotypes to discredit the victim in court. From this, it can be concluded that the medical examination, cannot only be traumatic and humiliating at the time, but can cause them further problems in the victim’s experience of the criminal justice system.

It is obvious that there needs to be clearer guidelines on the medical procedures that take place in sexual offences investigations. The study showed more positive results from victims examined in London which has clear guidelines on the matter. The system currently operating in London has had success not only with the victims but with the police and doctors operating under them. It seems that the use of such guideline throughout the country would significantly improve the victim’s experience of medical examinations. However, there seems to be little indication that such guidance will be implemented. Without further guidelines, the process of a medical exam will continue to be upsetting for the victim, and may in fact deter her from having such an exam which can be crucial evidence.

It is apparent that the defence plays on public perception to adduce the jury into returning a ‘not guilty’ verdict. Of particular use to the defence is the consumption of alcohol, research suggests that many believe a woman is partially or totally responsible for being a victim of sexual harm is she has consumed alcohol. Despite judicial direction that it is the issue of whether consent was given or not despite the consumption of alcohol, it seems clear that the defence uses this to raise doubts about the victim. Alongside this, the victims dress and sexual history is also used by the defence to adduce a not guilty verdict. The use of such evidence can make the victim feel as though it was her own fault, and perhaps discredit their reputation outside the realms of the trial, with the idea that ‘she had it coming’. Clearly, a verdict of not guilty will have significant repercussions for the victims outside of the criminal justice system. Particularly fear that the defendant may do it again and the experience the victim will have in the community, as a not guilty verdict appears she is lying, meaning she may experience repeat victimisation in the community after already going through the harrowing experience of a sexual violence trial.

Temkin’s study on advocates perspective, clearly shows that many prosecutors do not have contact with the victim before the trial, despite the Royal Commission on Criminal Justice (1993; Cm 2263) suggesting that it would benefit the prosecution’s case to be able to meet with the victim beforehand. There is a strong feeling that inexperienced advocates are often chosen to prosecute cases of sexual harm, this can without doubt affect the success of the prosecution, meaning the victim may have gone through the trauma of a trial with little hope for conviction, purely down to inexperience in the prosecuting advocate. Undoubtedly, the perspectives of those prosecuting and defending have a large impact on the victim’s experience of the criminal justice system.  Many defence lawyers work on the fact that juries will not convict if the victim can be depicted as promiscuous or an unreliable witness.  It is here, we see an overlap of the problems with medical examinations at trial, if doctors during medical examinations have taken a sexual history the prosecution can do little to stop it being entered as evidence in court.  Without clear judicial guidance on the admissibility of such evidence the defence will continue to play on public misconceptions to discredit the witness. Noticeably, the experience of having such personal information made public and used against them in court will have an extremely detrimental impact on the victim, causing them additional harm to that which they have already experienced.

It is clear that, the victim’s experience of the criminal justice system is far from ideal. From the discussion above there are many reasons why a victim may not wish to involve the police and become involved in the criminal justice system. From the initial problems of police disbelief and fear of the humiliating experience of the medical exam, to the problems of lack of evidence, the way the defence argument is structured and public perceptions of rape victims. It is obvious that until victims of sexual offences are made to feel secure in the criminal justice system the high attrition rate will continue. Despite hopes that the 2003 act would significantly improve the situation, it seems clear that until a drastic cultural change is seen and the public educated to prevent the current misconceptions having such a large impact on verdicts, such a change will require long term initiatives beyond the ‘quick fix’ of new legislation. Until such time victims will continue to experience further harms due to the criminal law and the system within which it operates.

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