Rules meant to prevent prosecution lawyers from talking about rape victims’ sexual history are being “evaded, circumvented and resisted”, according to a report published by the Home Office.
The Independent reports that Section 41 of the Youth Justice and Criminal Evidence Act 1999 has failed in its intended purpose: “to restrict such questioning to only a limited number of cases and only when justified”.
But the report said: “Section 41 has had no discernible effect on attrition [failure of prosecutions]. Findings… raise the possibility that both prosecution and defence share stereotypical assumptions about ‘appropriate’ female behaviour and that these continue to play a part when issues of credibility are addressed in rape cases.”
Defence lawyers still used evidence and “rhetorical devices” to impugn the character of rape victims, the report showed, and were often unchallenged in court.
This is truely depressing. It is clear that something more needs to be done, something that will force judges at least to shake off these assumptions and stereotypes. What exactly? I don’t know, but judges obviously need an even stronger signal from government that this is not acceptable. Otherwise the dispicably low conviction rate – only 5.6% of cases are successfully prosecuted – will never be improved.
The difficulty is compounded by the fact that almost half the judges interviewed by the researchers were unaware of the crown court rules setting out how the ban should work: “Some judges had only a vague knowledge of section 41 [of the 1999 legislation which contains the ban] and few non-legal practitioners and no complainants understood the new law,” say the researchers.
Now this is something that could be changed – judges who try rape cases could be given extra training to update their understanding of the law and their understanding of rape. It is frankly unacceptable that a judge wouldn’t know about something like this – and where are the defence barristers, should they not be prompting the judge to consider this protection? And some should simply be prevented from trying these cases:
They found some judges who said they considered the legislation “unnecessary and not a good idea”.
Let’s hope this report galvanises some real action from a government that seems all too ready to paint itself as tough and “crack down” on things, but lets this abominable injustice continue unchecked.