Sara Hinchliffe explains why defendants in rape cases should have the right to represent themselves in court
Self defence is no offence
'I am as appalled as anyone else to read of rape victims being questioned in this way and I am determined they should not have to go through this traumatising experience.' Jack Straw, 6 November 1997
A rape case tried at Knightsbridge Crown Court in early November hit the headlines because the defendant represented himself. The man, convicted of rape and sexual assault, was also accused of enjoying his victims' pain. According to the Mirror, he 'revelled in his power as his victims faced his piercing stare from across the courtroom. For hour after hour he continued his relentless questioning - at times prolonging their agony by long silences'.
Such an emotive case brought howls of protest from the public, the police, feminist groups and the government. Scotland Yard argued that allowing the defendant to conduct an in-person defence 'adds to the already considerable trauma and can make the victim feel victimised by the system'. Julie Bindel of Justice for Women said that 'defendants are allowed to emotionally rape their victims again from the dock'. Steve Ewart, foreman of a jury which suffered 'mental torment' in such a case, demanded changes in the legal process so that 'nobody in a civilised society should have to go through what those women experienced'. In his own Mirror article on the case, Home Secretary Jack Straw agreed that 'we must protect women in court'.
Changes in the law are currently being debated by a government review body, and may be proposed and implemented as early as next year. The removal of the right to an in-person defence sounds entirely sensible. Surely nobody could object to the removal of a rapist's right to cross-examine his victim? As Jack Straw commented 'greater protection for witnesses will ensure that we put the interests of the victims, not the criminals, first'.
The home secretary is plain wrong. There is no rapist, nor is there a victim, until the conclusion of the trial and the jury's verdict. Until the defendant is found guilty, he is an innocent man. Moreover, he is an innocent man who has to prove nothing. The prosecution must prove the case against him, beyond a reasonable doubt. The woman who claims to have been raped is a complainant, not a victim. There is no victim until the defendant is proven to have committed the offence. Only then is he a criminal.
These principles are important because they are the basis of English common law, which is based on the possibility that somebody may be falsely accused of a crime, and must be protected from being falsely convicted. Jack Straw has forgotten them in his haste to put victims' rights first.
Anybody accused of a serious criminal offence must have the right to the best defence possible. It is certainly true that most defendants' interests would be best served by being professionally represented. However, as lawyers become more sensitive to complainants' interests, men accused of rape may have difficulty finding a sympathetic lawyer in the first place. They may not believe that their barrister is mounting the best possible case. They may simply come to mistrust their counsel. A man, presumed innocent, must have the right to dismiss his barrister and conduct his own defence. He should not be forced to remain silent if he thinks that evidence which will acquit him is not being brought.
However, the debate around rape trials is not simply about the rights of the handful of defendants who choose to conduct their own defence. Commentators and policy makers now argue that the very idea of an aggressive cross-examination of the complainant - whether by the defendant or his barrister - is a second violent assault on a vulnerable woman. According to the Independent on Sunday, 'rape victims in this country are betrayed every day by the legal system and most, regardless of their cross-examiner - whether trained barrister or untrained psychopath - will say they feel violated again by the end of their trial'.
Jack Straw notes that 'victims often find themselves in court, forced to relive the trauma of their experiences'. Of course they do. They are accusing somebody of a violent criminal assault which carries a long prison sentence. To suggest that they need not give evidence about the alleged assault is very dangerous. It implies that we should uncritically accept every complaint of rape, forget the process of considering the evidence, and move straight to the sentence.
The process of cross-examination of the witnesses against the defendant is central. Most rape cases rest on the question of consent. The prosecution argues that the woman did not consent; the defence that she did. The jury must weigh these conflicting accounts to arrive at the truth. It is the job of the defence barristers to test and question the complainant's evidence, especially in cases where consent is disputed. It is also vital that the defence is able to explore fully the relationship between the defendant and the complainant - including their sexual relationship; the details of the encounter between them; and the character of the prosecution witnesses. This sort of questioning has come under fire in the debate about traumatised witnesses. In fact it is entirely necessary if a disputed allegation is to be proved or disproved. If this sort of cross-examination is disallowed, the cards will be stacked against the defendant, and complainants may have an easier time in court. But we should not fool ourselves that this is justice.
Take the example of John Ellison, who recently won his claim for damages for malicious prosecution after being convicted of rape and given a five-year sentence, two years of which he served. His 'victim', it turns out, maliciously brought the complaint of rape against him because he refused to marry her. Such miscarriages of justice show the importance of full cross-examination of complainants of rape.
If proposed changes to the law are dangerous for hard-won civil liberties, they are also highly problematic for women. The idea that women are 'vulnerable witnesses' who need screening from questioning and wrapping in cotton wool, before being delivered to court by a sympathetic policeman, is patronising. It is now quite possible to hear legal experts suggest that women in rape trials should be treated just like little children in abuse cases, and allowed to give evidence on video.
In fact, many women find the experience of confronting the man they say attacked them a cathartic one. One of the victims in the Knightsbridge case told the Sunday Telegraph that 'the cross-examination [by the defendant] wasn't that bad'. The reports of the case indicate that the two women stood up for themselves well during the trial, 'remaining calm and strong', with one of them telling the defendant that he was not funny and that she did not give a damn what he thought.
Women are more than capable of giving evidence. Feminists who have based their anti-rape campaigns on the idea that when women say No they mean No, would do well to heed their own advice. Women are fully capable of knowing and speaking their own minds, of refusing to be intimidated, and of facing up to traumatic situations bravely. Presenting women as helpless victims who cannot stand up to being contradicted does women no favours. If women who have been raped are to get justice, they need to be able to stand up in court and tell the truth about what happened to them. Nobody can do that for them.
Sara Hinchliffe is chair of Feminists for Justice, and a researcher into women and the law
Reproduced from LM issue 106, December 1997/January 1998