Registering rape

Rape law is not a zero sum game, explains Helen Reece

Two months after this, a student at Exeter University was jailed for two months for wasting police time, after falsely alleging that she had been raped. Exeter magistrates court heard that the investigation prompted by her allegation had taken 900 hours, involved 60 police officers, and cost about £10 000. During the investigation the police became increasingly suspicious as anomalies in her story were uncovered. Nobody was arrested or interviewed as a suspect, and after six weeks the student admitted that she had made it up.

Being falsely accused of rape must be every man's worst nightmare. Judge Bryant, who presided over the collapse of the prosecution on 5 August, said that the defendant had gone through an 'extremely unpleasant case' and expressed concern that other people could suffer similarly. This was perhaps part of his motivation for suggesting that there should be a register of women who had made false allegations of rape. 'It seems to me', he said, 'that the case shows a need for some sort of register which may be the obverse of a sex offenders' register'.

At a time when many are concerned about the rights of defendants on trial for rape, Judge Bryant's suggestion seems to make some sense. But the idea of a 'register' of false accusations is objectionable, for a number of reasons. The fact that a woman has withdrawn an allegation of rape is no guarantee that the allegation is false. Even if the case goes to trial and the defendant is acquitted, since the burden of proof is rightly on the prosecution this only indicates that the woman's allegation was not proved beyond reasonable doubt.

Judge Bryant accepted the substance of this point, responding that the only people who would be placed on a register would be those who had been shown beyond doubt to have made a false allegation. But in that case, the only women who could be said without doubt to have made up their allegation would be those who had been convicted of wasting police time, perjury, or some similar offence against the integrity of the criminal justice system - which would already be a matter of verifiable record.

So what would be the point of a register? Judge Bryant argued that where somebody had been shown beyond doubt to have previously made false allegations, it was better for the case to be filtered out at the earliest opportunity. But even where a woman has been shown beyond a shadow of a doubt to have lied about having been raped in the past, even if she has a string of convictions for perjury, it is important that no more is made of her history than it deserves. If this woman makes another allegation, the only significance of her history is that it should be weighed in the balance in determining the truth on this occasion. To give her record any more weight than that would be to breach two fundamental principles of the criminal justice system - first, that each case should be judged on its merits, and second, that everybody is entitled to the protection of the law.

A register of women who had made false allegations of rape would ultimately be objectionable in precisely the same way as the register of sex offenders. It would judge the actor rather than the act, and it would deny individuals a second (or third or fourth) chance. When Judge Bryant argued that these registers would be obverses of each other, in a sense he was right. But the criminal justice system is not a zero sum game.

It is understandable that advocates of defendants' rights should feel exasperated at the ease with which fundamental principles are being discarded, when reforms to the rape laws are introduced out of concern for victims. The rape complainant has fast become the darling of the criminal justice system. The Youth Justice and Criminal Evidence Act 1999 has further restricted evidence of a rape complainant's previous sexual behaviour. This act also removes the right of the accused to conduct his own defence, and permits rape trials to be heard in private. As if this isn't enough, in 1999 a government working party recommended two further reforms: that an offence of date rape should be introduced, in order to convict some of those defendants who are presently being acquitted; and that the burden of proof should be shifted on to the defendant to prove that he had reasonable grounds to believe that the complainant consented to sexual intercourse. In such a victim-friendly climate, it might seem that any measure designed to swing the balance back towards the accused should be supported.

But 'tit for tat' is no solution. It is in all of our interests that the criminal trial meets the highest possible standards of justice and fairness. Degraded justice helps nobody - whether it is carried out in the name of the prosecution or in the name of the defence.

Helen Reece is a lecturer in law at Birkbeck College