There were calls this week to review the way sex crime trials are dealt with because a victim committed suicide during proceedings and in another sex abuse case an advocate was criticized for robust cross examination of a witness.
Being raped is a test of a person’s strength. Proving it is a trial. Very few reported rapes result in conviction but reassuringly about 60% of rape trials are successful prosecutions. Victims feel violated whatever the law. It is important that they complain so that an investigation can be launched. It is just as important that the investigation is conducted properly and fairly, looking at the evidence from both sides.
A person complaining of rape should be taken seriously but so should someone who denies they are a rapist. In any subsequent trial the stakes are high on both sides. A successful prosecution will depend on the evidence. In most cases this will depend on how accurate the victim is as a witness. In others there will be evidence to support the complaint.
Some cases are emotional, some are horrific and some are hopeless. There is no standard rape and all rapes are serious. It can be historic or recent, when someone is asleep, committed by a family member or a stranger against adults and children, sober and in drink, with and without injury. It is a war crime. Real lives are never more exposed that when examining sexual matters in a criminal court.
Sexual offending is not new. Numerous cases of historic sexual offending have been uncovered across the world. Commonly perpetrators are found in positions of trust or authority – parents, priests, teachers etc. In the past it seems that there was little effort to investigate such matters properly, children were disbelieved and the law required more than just a complaint (known as corroboration) so cases were not pursued. Nowadays, people feel much more able to complain and allegations of historic abuse are coming regularly before the courts. Anyone who is the victim of past abuse can still go to the police and frankly should. This may not lead to a successful prosecution but, without a complaint, there is nothing to investigate.
Anna and Brian
Anna says that when she was a child she was raped by her step father Brian. She says she was eight years old when he started abusing her and it went on for years. She couldn’t tell her teachers. They were always telling her off for being naughty. She couldn’t tell friends or family as she felt that they wouldn’t believe her. As she got older she had a breakdown and went for counselling. She told the counsellor her history who advised her to tell the police.
Brian is 64 years old. He has high blood pressure. He runs a successful business and works hard. He lives with his second wife. They have two children and one grandchild. He has no contact with his first wife or her daughter Anna whom he brought up as his own. That was 20 to 30 years ago. Anna has accused him of raping her when she was a child. He has been arrested and denies the allegation.
Sadly this story is not rare and it is scenarios like this that lawyers and courts deal with every day
The evidence of any criminal offence comes from witnesses. In a sex crime trial, that witness is someone like Anna. Most people never have to give evidence. Criminal prosecutions can only succeed if a jury is sure that an accused person is guilty. That is the legal test. Can a jury be sure that Anna is telling the truth and what can be done to help her whilst still giving Brian a fair trial?
- Anna can give her police statement on video. This can be played to a jury but she will need to be available for cross questioning if the allegation is denied. This can be in court, with or without a screen or by TV link. Live evidence gets the case across better than a video so she will need to be able to cope
- Anna will need to give reliable evidence. This does not mean she has to remember every date and time. That would be impossible but significant events can trigger a memory so questioning should elicit the best of her recollection of what went on and when
- That she delayed complaining is not, of itself, a problem as a jury will be directed that experience shows people commonly delay complaining due to a number of reasons.
- Is what she said to the counsellor properly noted down or does it look inconsistent? If it is inconsistent, is that a result of trauma or because she is a liar and a fantasist?
- Has he done something similar to someone else? Evidence of a propensity to commit rape is admissible in a criminal trial in certain circumstances. Often victims think they are the only one but it turns out that the suspect has criminal convictions for sexual offences and/ or an investigation uncovers other victims
- Does her mother remember anything significant or will she be a defence witness?
- Are Anna’s school and medical records still available? This might help with dates for particular events so, for example, if she missed a school trip to go on a secret holiday with Brian, is the date of that trip known?
- If she misbehaved at school at the time does that mean that she is unreliable now? Much depends on the contents of the records. Anna will also need to know that, if her confidential records are relevant to any case, the suspect would be allowed access to them in preparing his defence.
- There is no medical evidence as it is a long time ago and she has had sex with others since
- Witnesses and records may be lost to the point that it becomes impossible for there to be a fair trial. This will only become apparent once an investigation is launched.
- Her own memories might be vague. This is quite common in historic cases as victims spend so long trying to block out the thoughts. In England and Wales there is no requirement that Anna’s evidence is corroborated. She can be the only witness. Many witnesses are utterly compelling and cases are proved on the evidence of one witness. However, the passage of time and her own understandable conduct over the years may mean a jury can’t be sure.
Will he be prosecuted?
Once an allegation is made, a decision to charge will be based on the available evidence. Brian has no control over whether he will be charged or not. That will be decided by a lawyer.
In a one witness case it is a difficult decision. If he refuses to give an account to the police this can be held against him. If he admits they were often alone, his admissions may support her complaint. There will be no medical evidence due to the passage of time. School records might show that he went to parents evening and was well thought of by others. Abusers and victims often have an apparently close relationship. He will be visited by social services and asked to agree not to have unsupervised contact with his granddaughter. This may also be a condition on his bail. It will put a strain on his relationship. The stress will make him feel ill. His business will suffer. There will be local gossip. Some information may be on the Internet in news reports or as gossip on social networking sites. Assuming he has no criminal convictions, he can call witnesses as to his good character; his honesty and his conduct towards children generally. He may have examples of the bad character or dishonesty of the step daughter, knowing that she had lied about other relationships, whether this is admissible in court would depend on what she had said and done. Whether he raped his step daughter or not, he will need specialist help from a lawyer.
Most complaints of rape are met with a denial by the suspect. Whatever incentives are created to make offenders plead guilty, where the allegation is rape, guilty or not, most accused people plead not guilty requiring the alleged victim to prove the allegation and to be cross examined as to any inconsistencies and reasons for delay.
Brain’s case is that she is a liar. The advocate will have to put this and Anna will have to answer. It is traumatic and witnesses react in different ways.
Some feel better having told their story, whatever the outcome. Some blame the advocate for the questions not the defendant for his denials. Another has committed suicide. That criminal proceedings are difficult does not mean that the system is completely wrong.
It would help if the technical equipment worked properly and if defence advocates are always rape specialists as they were in the twocontroversial trials reported this week. There is nothing wrong with reviewing and improving any system but we cannot assume that every allegation is true. It remains a question of proof.
Felicity Gerry QC
Felicity Gerry is a high profile criminal barrister and author specialising in serious fatal, sexual and violent offences. She is the co-author of The Sexual Offences Handbook and also a legal media commentator.