Senior Lecturer in Criminology, Anglia Ruskin University
Associate Professor in Sociology, University of Bath
In 1997, Sue Lees published findings of rape trial observation research that showed rape survivors being treated with open cynicism based on myths about how rape happens, who it happens to, and how people behave afterwards. These findings reflected the wider research into ‘rape myths’ that had been conducted since the mid-70s by academics such as Brownmiller, Estrich, and Burt, and acted as a catalyst for policy reform. Indeed, the UK Government has made many attempts to remove rape myths from English and Welsh trials since Lees (1997) first published her work. These have included training for judges and prosecution barristers, ‘myth-buster’ judicial directions to warn juries about the risk of making assumptions, and outlining a set of circumstances in which consent should be assumed absent unless the accused can show otherwise. Despite the positive steps taken, rape myths remain dominant in the attitudes of the public and legal professionals and have been used to explain the ongoing poor treatment of survivors (Stern, 2010; Temkin & Krahe, 2008).
Much of the existing research on rape myths has focused on interview evidence or the earlier stages of the criminal justice system, so we wanted to use court observations to revisit Lees’ (1997) findings and identify potential barriers to effective policy implementation. Court observations are time-consuming and difficult to plan in advance because of ever-changing court listings. Despite this, the method offers several benefits that make the additional time and effort worthwhile. For example, there is no reliance on participants to report how they behave and so observations enable analysis of embedded practices that are no longer questioned by those involved. Additionally, barristers and judges are a difficult group to access, but courts are public and provide an element of contact that may otherwise not be possible. One of our team, Olivia, therefore watched rape trials for 10 months in 2012 as well as a 3 month pilot study in 2010. This pilot was essential to learn about practical issues in court observations, because methods literature guidance is almost solely limited to noting that legal jargon can be confusing, delays are tedious, and that there is an element of trial and error involved. In the future, we hope to examine the difficulties of court observations in more detail because we encountered many practical and ethical issues during the 13 months of fieldwork. For example, informed consent was often impossible and so we had to make decisions about what data to include. While the barristers and members of the public gallery often made comments to Olivia or each other that were shocking and poignant, the data in our article is therefore limited to that which was said publically to the court, either when it was in session or during the short breaks in proceedings.
Our article in Social & Legal Studies established that rape myths are still frequently raised in English and Welsh rape trials, but it also suggested that the use of rape myths was about more than poor attitudes. We argued that rape myths were used because they presented survivors’ behaviour as inconsistent with juror expectations, and juries were told to look for inconsistencies as evidence of lying. While some judges and prosecution barristers did challenge the relevance of rape myths, they were kept prominent because the prosecution case was presented in a binary of either wholly accurate or wholly inaccurate. This meant that the jury were told to acquit if they felt one part of the prosecution case, no matter how peripheral, was inconsistent with what they would have expected to see. For example, one trial involved the survivor being questioned extensively on inconsistencies in paperwork for a termination she had undergone weeks before the alleged rape. The defence barrister then argued:
“Of course, it doesn’t tell you about [the rape], but it does tell you, doesn’t it, that [Victim/Survivor] is capable of behaving in really rather odd ways … This is not a girl whose word you would really accept … and really you have to be sure about this girl’s evidence … because if you can’t, then you can’t be sure that [Accused] is guilty.” (Defence, T9)
Rape myths, then, were reinforced by the way that juries were expected to establish ‘truth’. This explains why they continued to be raised despite judges and barristers often demonstrating awareness of the realities of rape (although a small minority did display poor attitudes as well). The article also showed how these rape myths were linked to gendered ideas about ‘rationality’, with women’s experiences being dismissed as ‘irrational’ by ignoring the potential role of trauma in their decision-making. All of this suggested that the UK Government’s policy attempts to remove rape myths would remain ineffective because they did not deal with the fundamentally gendered ways of ‘knowing’ that were central to trial.
Since writing the article for Social & Legal Studies, we have been developing the links between rape myths and other forms of gendered stereotype. In Olivia Smith’s forthcoming book, Rape Trials in England and Wales: Observing Justice and Rethinking Rape Myths, she argues that the use of rape myths must be seen in the context of wider gendered stereotyping at trial. Olivia uses observations from the same research to argue that women are portrayed as delusional because they are ‘damaged goods’, deceitful because they are ‘scorned women’, and untrustworthy because they are ‘childlike and capricious’. She also unpacks the widespread use of sexual history evidence to imply that the survivor either consented or is not credible, arguing that all of these narratives combine to create the cultural scaffolding to dismiss women’s experiences of rape. Without recognising and addressing the fundamental inequalities in how women’s voices are heard, Olivia therefore argues that policies attempting to improve rape survivor treatment will merely tinker at the edges of the problem.
Olivia’s book also unpacks the role of the adversarial imperative for each party to advance their case, as justice is thought to be achieved when both parties focus on winning. This is used to justify manipulative questioning and the invoking of stereotypes, which ignores the potential to mislead juries by drawing on harmful gendered myths that cannot be considered part of ‘reasonable doubt’. Further, this thinking is based on an assumption that the right to a fair trial must be the ultimate priority of all legal professionals, without also acknowledging that witnesses have a right to privacy and protection from inhuman or degrading treatment. Our thinking has developed, then, to suggest that while policy can continue to improve the experiences of rape survivors, achieving true survivor justice will involve going outside the criminal justice system.
We have been informed by McGlynn, Downes and Westmarland’s (2017) work on kaleidoscopic justice, which proposes that survivors have a range of shifting justice needs that require looking beyond criminal justice. These justice needs can include feeling safe, being heard, and having their experiences validated, all issues that restorative justice scholars have long highlighted. Olivia’s research (http://arro.anglia.ac.uk/701537/) has therefore begun to examine the potential use of the Criminal Injuries Compensation Scheme (CICS) in providing validation and reparation where the criminal justice system may have failed. Her work has found that survivors view state compensation as a potential avenue for justice, but that victim-blaming eligibility rules can act as a barrier to achieving this. For example, 24 of the 40 support workers interviewed or surveyed said that survivors had compensation reduced or rejected because of minor previous convictions. Perhaps the most striking illustration of this was a young woman who had a child as a consequence of abuse by a family member and used alcohol to cope with the fallout of her child’s father being identified and convicted. The woman was later convicted of driving under the influence and given an extended community order to help address her multiple vulnerabilities, but this meant that she was ineligible for compensation despite a number of legal and health professionals supporting her claim. Further barriers related to delayed reporting to police, applying for compensation after the 2 year time limit, being perceived as partly culpable for the rape, and a bizarre rule that excludes survivors of abuse where they lived ‘under the same roof’ before 1979. We therefore argue that CICS now needs to be given more attention by researchers in order to better understand the role of rape myths and gendered stereotypes within the compensation system.
Ultimately, our article in Social & Legal Studies is part of a wider examination of formal routes to survivor justice in rape and sexual assault. We have highlighted ways to improve rape trials in the short and medium term, but also argue that the criminal justice system is so fundamentally flawed that we must also look at wider understandings of survivor justice. Our work has also demonstrated the importance of court observation methods, because they enable research to examine a different aspect of rape justice and have revealed unexpected causes of rape myths at trial. We hope that our article will increase the interest in court observations as well as move the debate about tackling rape myths beyond a focus on training and attitudes.
Olivia Smith is a Senior Lecturer in Criminology in the Department of Humanities and Social Sciences at Anglia Ruskin University. Tina Skinner is an Associate Professor in Sociology in the Department of Social & Policy Studies at the University of Bath, together with Olivia Smith she is the co-author of ‘How rape myths are used and challenged in rape and sexual assault trials’ (2017) 26(4) Social & Legal Studies 441-466.