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06 March 1998

Rape Law Injustice

The UK's Home Secretary Jack Straw intends to introduce new laws to prevent alleged rapists forcing their victims to relive their ordeal in the witness box. Sara Hinchliffe from Feminists for Justice is alarmed at the suppositions underlying the case for rape law reform

Jack Straw has said that measures to curb the rights of men charged with rape to cross-examine their alleged victims will be included in a new criminal justice bill in the next parliament. The legislation will also cover defence barristers who ask victims probing questions about their sexual history.

Straw used the example of Ralston Edwards, who spent six days at the Old Bailey last year questioning Julia Mason while wearing the same clothes in which he attacked her. He said in an interview in the Times that he was 'determined [to] stop putting victims through this traumatising experience'.

The removal of the right to an in-person cross-examination endangers civil liberties and due process, and also presents a patronising view of women's abilities to deal with these situations.

Justice demands that defendants have the right to contest their case: it is fundamental that somebody accused of a crime should be allowed to speak up for themselves and to test the evidence as they see fit. Many defendants in rape cases have difficulty finding a sympathetic lawyer: if they feel that their barrister is not mounting a satisfactory defence, they must be allowed to put their own case. Defendants must not be forced to remain silent if they feel that evidence which may acquit them is not being brought.

Of course being cross-examined, particularly in person, may be traumatic for some complainants, although others may find it cathartic to have the opportunity to confront their attacker in person and to put their case. But even for those women who do find the experience traumatic, women are more than capable of giving evidence. Previous feminist campaigns around rape have been based on the approach that when a woman says no she means no, that women are capable of knowing and speaking their own minds. Restrictions on cross-examination depart from this approach, and project a detrimental view of what women are capable of.

Straw also claims that more rapes are being committed while fewer convictions are being gained. A simple look at the statistics demonstrates no such thing. While more rapes are reported, and more prosecuted, there is a remarkably constant number of convictions each year. A more rational analysis of the figures indicates that:

  • there no demonstrable increase in rapes;
  • more complaints of rape are made (probably due to a combination of the high-profile discussion of rape and changes in police practice);
  • changes in police recording procedures mean that more complaints are recorded, rather than those with little chance of a successful prosecution being 'no-crimed';
  • more prosecutions are proceeded with by the Crown Prosecution Service, despite insufficient evidence to secure a conviction being available;
  • a similar number of convictable offences is committed each year. Ignoring this, however, the Home Office is determined to make it easier to secure convictions in rape cases - despite the consequences for due process.

    The removal of the right to an in-person defence will set an unfortunate precedent for other traumatic cases, where other defendants may be denied the right to a proper defence. The basis of cross examination is to question and test the veracity of witnesses; the assumption of innocence until guilt is proven means that the evidence of witnesses for the prosecution must be treated with scepticism. To undermine this principle means to undermine the presumption of innocence.

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