Rape law must be as clear as possible

Published on Sunday 27 January 2008 19:14

WHY do defence advocates prefer to see a majority of women jurors in rape trials?

Surveys consistently find a significant proportion of the Scottish population hold views that blame women for rape if they have been drinking, flirting, dressing in revealing clothing or putting ourselves in "risky" situations. It would be nave to assume female jurors would, by virtue of their gender, be intrinsically supportive to women giving evidence about being raped while any of these circumstances were present. Women have perhaps even more of an investment than men in believing rape myths: "If it was me, I'd fight to the death, so she can't have been raped because there isn't enough bruising or injury."

Understandably, women want to believe they can avoid rape by following the rules we are brought up with: don't go home with someone you don't know; don't provoke men by dressing or behaving provocatively; don't walk home alone at night; and don't sleep around.

Juries in rape trials make decisions based on the evidence presented, but can we be confident the evidence itself isn't prejudicial? Not according to research published last year by the Scottish Government into the use of sexual history and character evidence in sexual offence trials, which found seven in ten women giving evidence in rape trials will be asked about their sexual history or character. This includes questioning on the number of sexual partners a woman has had, whether her children have the same father, at what age she started drinking or whether she has ever used sex toys.

Antiquated notions about how women should behave, particularly in relation to sexual matters, are alive and flourishing in rape trials. This type of so-called evidence is deliberately designed to give the impression women claiming to have been raped are actually highly unlikely to have refused consent to sex to anyone. It is illegal to conduct research directly with juries. However, research using mock trials gives us an increasingly clear picture of the role that attitudes might play in decision-making. Professor Vanessa Munro of Nottingham University has conducted research involving a number of mock rape trials, and found gender stereotypes and rape myths have a profound effect on jury decisions.

The Scottish criminal justice system has a poor record in responding to women alleging rape. Only 3.9 per cent of reports of rapes to the police lead to a conviction. It is not credible to argue more than 96 per cent of women reporting rape are lying, therefore there is clearly a significant justice gap for women in Scotland who have been raped. The vast majority of reported rapes – more than 90 per cent – never make it to court. Of the few cases that do, women frequently talk of the experience as being similar in terms of trauma and humiliation to actually being raped.

Will the Scottish Law Commission's (SLC) proposals to reform the law on rape and sexual offences make any significant difference to this? Many of the SLC's proposals represent a sensible clarification and tidying up of the existing common law. The broadening of the definition of rape to include oral and anal rape is welcome, as is the move to define consent as free agreement. Given the misconceptions that can surround this issue, it's important the law is as clear as possible. One area likely to provoke heated debate is the recommendation relating to alcohol – the SLC is recommending that, in rape cases where someone (female or male) has taken or been given alcohol resulting in them lacking the capacity to consent, then consent should be considered to be absent.

This has already been characterised by one commentator as criminalising drunken sex. There appears to be an enduring notion that women frequently engage in drunken sex, wake up, regret it and "cry rape". Practically, there is little possibility this type of situation would ever make it to court but, more importantly, why would women make a complaint of rape in these circumstances? Given how horrendous the legal system is for complainers of rape, why would anyone put themselves through this unless they had a very genuine reason?

There is no evidence to support the idea false allegations in rape cases are any higher than for other crime. The SLC's proposals are not about criminalising drunken sex: some men target women who are very drunk because they know they are unlikely to be able to refuse consent. The law must provide protection in these circumstances.

&#149 Sandy Brindley is the national co-ordinator of Rape Crisis Scotland.