Engendering Justice - from Policy to Practice - The Fawcett Society

Chapter Four:Women Need Justice - Women as Victims of CrimeThis is often used as a weapon by the defence with noalternative explanation being provided to the jury. Dates andtimes are especially an issue for trafficked women and anywoman who has had their access to news sources, whichprovide a reference point, restricted.In rape cases, a jury is frequently required to considerwhether a complainant consented and to evaluatethe reasonableness of the defendant’s belief that thecomplainant had consented. The definition of consentprovided under the Sexual Offences Act 2003 requires thatan individual must have the freedom and the capacity tomake a choice. No further guidance is currently provided.Recent research using mock jurors revealed that there wasno consensus on the meaning of consent, particularly inrelation to the level of inebriation which may be required.Worryingly, some participants indicated that they wouldrequire some evidence of resistance even when thecomplainant was heavily intoxicated. 173 It is also unclearas to the extent to which defendants pleading a consentdefence, are being tested, as the law requires, on the stepsthey took to ensure consent was given.The decision of the Court of Appeal in R v Bree consideredthe line to be drawn between consensual sex and rapewhere a complainant is heavily intoxicated. The Court ofAppeal found that the jury should have been given someassistance with “the meaning of ‘capacity’ . . . where thecomplainant was affected by her own voluntarily inducedintoxication and also whether, and to what extent theycould take that into account in deciding whether she hadconsented.” 174 Given the stereotypes and moral judgmentswhich surround this issue, there is a need for clear guidanceand clarity as to the instruction which should be given tojurors, in rape cases involving intoxication.In 2006, the Office for Criminal Justice Reform publisheda report proposing the introduction of expert evidence inrape cases to educate juries about the potential effects oftrauma and to assist in dispelling some of the myths andstereotypes which surround rape. Various arguments havebeen made as to whether expert testimony is appropriate.Concerns have been raised that the use of expert testimonywould lead to a ‘battle of experts’ or may result in anotherbarrier to reporting for those women who do not feel theymeet the victim ‘profile’. However, a study with over 200mock jurors indicated that judicial instruction / experttestimony which provided explanation of behaviour resultedin participants being less likely to assume fabrication by thevictim. 175The Commission welcomes the current work by theGovernment to explore commonly held myths and toconsider appropriate judicial instruction. The recognition bythe Courts of this is also encouraging, such as the Courtof Appeal decision, R v Doody, in October 2008, when theCourt ruled that judges in rape trials can give instruction tojurors that a delay in making a rape allegation, rather thanindicating a false complaint, can arise from shame andguilt. 176 There should be greater awareness of this decisionand the Commission recommends that the application andinterpretation of this decision is closely monitored. In lightof the results of this monitoring, the Government may needto consider further the use of expert testimony, particularlyin relation to issues outside the scope of the decision.There is a great deal of expertise within this sector whichcould be utilised to provide independent expert evidence tojuries and instil greater confidence of victims in the system.Evidence could be required by the court, rather than byeither side, as is possible in childcare cases, which wouldalleviate the risk of a battle of experts developing.I’d like the CPS to stop making assumptions about whata jury would think. I’d like juries to be educated that mostwomen who are raped know their perpetrators, that thereis a big difference between submitting because you’re soterrified that you’ll do anything to get out of there alive andconsent.Female rape victim, Questionnaire Response, January2009Page 60