Discuss the influence of ‘rape myths’ in relation to proceedings in the court room.
Major reforms in criminal law and procedure in the UK have been aimed at increasing the conviction rates for rape. Conviction rates are notoriously low. This is due to factors such as complainant withdrawal, the use of sexual history evidence at trial and police responses to allegations. However, one of the key drivers posited as a reason for low levels of conviction, and the focus of this answer, is the acceptance of rape myths. These are beliefs and prejudices about sexual aggression which seek to justify such behaviour (Gerger et al 2007). Research indicates that rape myths are held by jury members and are often exploited by defence barristers to ensure acquittal. Judges too have been found to, directly or indirectly, perpetuate rape myths through corroboration warnings and other discretion mechanisms. The central argument of this answer is that despite statutory reform, rape myths continue to influence rape trials. However, legal reform is not the only facet of this problem that needs attention; it is imperative that social attitudes change as the law is limited in its ability to affect change.
Rape and Attrition
In 2003 the definition of rape was extended in the UK through the Sexual Offences Act 2003; absence of valid consent is at the heart of the definition and consent must be ongoing. To facilitate convictions, a series of conclusive presumptions were enacted through the 2003 where consent would be deemed absent e.g. where the defendant represented to be someone else. In short, the situations in which consent would be found were minimised. One would expect that this would have led to more convictions. However, Temkin (2010) notes that conviction rates for rape have not been substantially decreased since 2003. The crime of rape suffers from a high attrition rate; the difference between the number of rapes recorded and those that end in conviction. Lovett and Kelly (2009) examined 100 case files in England and Wales and found that 26% of cases were dropped at the pre-trial stage, 24% in the middle stages and 28% at the later stages. The authors found that complainants withdrew from the case 38% of the time and in 21 of 21 cases a prosecutorial decision was made not to prosecute based on poor evidence. One of the main reasons for this high attrition is the ongoing belief by those involved in the court room setting of rape myths.
Rape myths seek to justify aggressive sexual behaviour. They blame the victim, excuse an offender, promote doubt towards allegations and limit rape to a particular type of person or part of society (Bohner et al 2009). McGee et al (2011) identifies some of the most commonly held; rape was a result of overwhelming sexual desire, a male rape victim must be gay, women who were tight tops or short skirts are ‘asking for it’ and rape allegations are false. Amnesty International conducted a poll in 2005 and found that women would be held responsible by the public for a rape if they failed to say no (37%), behaved flirtatiously (37%) or were walking alone (22%). Research shows they are more prevalent among men (Saurez and Gadalla 2010) and there are significant spatial variations; research by Ward (1995) indicating that the UK had lower levels of belief in rape myths than countries such as Hong Kong and Malaysia.
Reece (2013), however, argues that feminists have exaggerated the prevalence and the impact of rape myths. The author doubts whether the general public subscribe to rape myths as not all the myths created are about rape and the evidence showing that the myths are widespread are scant and lack methodological rigour. However, in a reply to Reece, this argument is refuted by Conaghan and Russell (2014) who assert that Reece misunderstands how rape myths operate. Furthermore, it is unlikely that the public would declare what their exact opinions were in such a sensitive issue for fear of being judged. The Stern Review (2010) confirmed that public attitudes towards rape victims was a problem and ‘can affect the way rape cases are dealt with by the police, prosecutors, judges, and juries’. We now turn to consider the impact of rape myths on some of the key actors during a rape trial.
Dinos et al (2015) embarked on a study to assess the extent that rape myths impact on jury decision-making with reference to the literature in this area. The found that in eight of the nine studies in their review a full or partial link was found between belief in rape myths and jury decision-making. A study by Wiener et al (1989) found no link. However, it should be noted that only one of the studies (Gray 2006) was based on UK data. Furthermore, no literature after 2011 was examined. Dinos et al summarised their findings; those who subscribe to rape myths are more likely to return a ‘not guilty’ verdict in rape trials, verdicts are influenced by factors which should not be considered (whether the victim was drunk, presence of physical resistance, speed of reporting and demeanour in court of the perpetrator.
These conclusions accord with more qualitative research from the UK. Finch and Munro (2005), for example, found that rape myths figured in the deliberation process by jury members in rape trials. The authors (Finch and Munro 2009) in a second study that complainant conduct before an alleged attack e.g. mode of dress and during trial e.g. calm demeanour were all taken into account by jurors. The authors conclude that it would take quite dramatic wrongdoing on the part of the defendant to take their focus away from the victim. The authors attribute this to general acceptance of rape myths among the general public; a pool from which juries are of course drawn. Ellison and Munro (2009) further add that jury deliberations are impacted by an assessment of what jurors believe a ‘real’ rape victim would do; report the incident immediately or show some physical sign of resistance.
Prosecutors and Judges
Temkin (2000) conducted research into barristers’ perceptions of the rape trial process. The authors found that barristers would frequently use rape myths to their advantage. The researchers found that barristers would assess a complainant and adopt their approach to inflict maximum damage to their credibility. They would discredit the complainant by maligning his or her behaviour at the time of the incident e.g. the type of dress and maligning the sexual history of the complainant. The authors note that there is a difficulty in defending these tactics as they appeal to the prejudices which are ‘ingrained in people’. Chambers and Millar (1987) also note that the adversarial process in the UK lends itself to the exploitation of complainants through exploiting rape myths by barristers.
Judges can also fall victim to being persuaded by rape myths. There is an argument that judges should be permitted to do more to highlight the problem to jurors. Finch and Munro (2009) advocate that experts should be permitted in rape trials to explain victim reactions and further that judges should be permitted to give more expansive guidance about the danger of considering factors which are not relevant to the question of consent (2009b). Chalmers et al (2014) argue that judges should be permitted to give clear written instructions to the jury about avoiding such myths. However, there are problems with such a proposal. Written instructions may alert a juror to a myth they were unaware of and jurors may not be able to understand the instruction given leading to errors (Callander 2016).
Judges also have significant control in relation to a corroboration warning. Judges have discretion as to whether to advise a jury that they should be cautious about convicting a defendant based on the uncorroborated evidence of the complainant. Reform of this warning was not seen as a propriety when the 2003 Act was created. Research by Temkin and Krahe (2008) indicates that judges tend to err on the side of caution and issue the warning more often than not. Leahy (2014) argues that the use of the warning may contribute to the myth that complainants and their testimony are inherently dubious. While the author lauds the fact that the law has moved on from always giving the warning in every rape trial, its retention on a discretionary basis, means that the judiciary can be accused of accentuating such myths.
The aforementioned research can be criticised. Smith and Skinner (2017) argue that research into court responses to rape relying heavily on interviews and mock trials. The authors studied actual rape trials and found that rape myths are still routinely used at trial, although the authors noted that judges were prone to restrict their impact by reigning in prosecutors and using judicial discretion. However, their observations showed that defence lawyers would create scenarios that lauded a ‘normal’ way of acting and would seize on any divergence from this by the defendant. The authors lament that this indicates the law is limited in what it can achieve.
Throughout law, there are example of attempts to regulate and alter change public perception and behaviour by recourse to statutory intervention. However, statutory reform does not always succeed in the aims its aims. Rape myths are a product of society and hoe we think and treat others. While the law has an important role to play, it is limited in what it can achieve. More education is required on rape and more emphasis needs to be placed on the conduct of the defendant. Until we alter public perceptions, the limits of the law will be more pronounced.
The 2003 Act goes some way to reducing the ability of rape myths to impact the court process. There is no use in a defence barrister utilising as rape myth if one of the conclusive presumptions is raised for example (Withey 2007). However, it is clear from historic and recent research that rape myths continue to influence rape trials. Until a more holistic solution is found, which engages the public, then this problem will persist.