Law Commission review of RASSO prosecutions
In September 2023, Behind the Gown submitted a response to the Law Commission’s review relating to the law, evidence and practice in rape and serious sexual offence prosecutions.
The review has 3 goals: i) improving understanding of consent and sexual harm by countering the effects of rape myths ii) improving the treatment of complainants, and iii) ensuring that defendants receive a fair trial. A precis of the review, including the prevalence of rape myths, can be found here.
Below, we outline 4 of the proposals and our response.
A New Regime
The first proposal is a bespoke regime governing access, disclosure, and admissibility of third-party personal records. “[A]ny record over which a complainant has a reasonable expectation of privacy” is captured - including therapeutic, counselling, education, medical, psychiatric, and social services records. The impetus for the proposal is twofold: to address disparities in thresholds between access, disclosure, and admissibility, and limit the capacity for myths and stereotypes to infiltrate the trial process. In respect of the former, the Commission highlights the distinctions between thresholds depending on a complainant’s consent. If access to third party records is deemed a reasonable line of enquiry, then, if the complainant consents, the police can access third-party material, whereas compelled production, (where the complainant does not consent to access), commands a higher test.
Under a witness summons application[1], a judge must be satisfied that a person is likely to be able to produce any document or thing likely to be material evidence, and it is in the interests of justice to issue a summons to secure the attendance of that person to produce the document or thing. Compelled production therefore attracts judicial scrutiny.
We believe that a complainant’s consent to access in the early stages of an investigation should not affect the scrutiny applied to the access of their personal records. Given concerns around complainant engagement, exacerbated by police mistrust and delays, early support for a prosecution must not be exploited by overly broad, intrusive access to personal information. To this end, the Commission propose providing complainants with legal advice in relation to access to third-party personal records, and replacing AG Guidelines with primary legislation.
In respect of the second issue – limiting the use of third-party material to peddle myths and misconceptions, the Commission propose an “enhanced relevance test” where access to, or disclosure of, personal records must be “relevant to an issue at trial” and “necessary in the interests of justice”. Relevant to the “interests of justice” would be potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; whether production or disclosure of a record is based on a discriminatory belief or bias; and society’s interest in encouraging the reporting of sexual offences. An enhanced relevance test requiring judicial authorisation reduces the risk that third-party records will be accessed or disclosed purely to undermine credibility. As the Commission notes, personal records can be “mined for inconsistencies” — as though consistency were some sort of “hallmark of credibility” or indicator of fabrication. Ironically, vulnerable women with mental health or addiction issues are often targeted by sexual predators because of the assumption that they will not report, or if they do report, disengage from an investigation.
We endorse the thinking behind the Commission’s proposal. We consider that a bespoke regime better caters for the sensitivities of RASSO prosecutions. This is because the breadth of the disclosure test under the CPIA, and the need to “err on the side of disclosure”, inadvertently endorses disclosure of material which does little but fuel an outmoded understanding of credibility, endangering the proliferation of mythology from the early stages of the trial process. Read more about the proposal, here. Hear more about the proposal in this podcast, here.
Sexual Behaviour Evidence
The second proposal is a “structured discretion model” , replacing s.41 YJCEA 1999, allowing for sexual behaviour evidence to be admitted where:
- The evidence has substantial probative value; and
- Its admission would not significantly prejudice the proper administration of justice.
Relevant to this decision is a suggested list of factors including the protection of the complainant’s dignity and private life; the benefits of encouraging victims to report and provide evidence in sexual assault prosecutions; and the risk of introducing or perpetuating myths and misconceptions. Whilst these factors are designed to stop myths and misconceptions affecting judicial decision making, we are not persuaded that the test will improve consistency. Inevitably, judges measure the relevance of sexual behaviour evidence against their own bias. In R v A [2001] UKHL 25, s.41 (3) (c) was interpreted in a way that allowed for the admission of previous sexual experience between the complainant and accused in a three-week period before the incident of alleged rape, even though the section was more restrictive. To do so, Lord Steyn said, meant a trial was fair and compatible with an accused’s convention rights. But such interpretation does little to elevate our understanding of consent, (a key aim of the Commission’s review), as to which, see Professor Claire McGlynn’s mock dissent in R v A - or shift the dial towards greater sexual autonomy for women. Given the prevalence of mythology surrounding relationship rape, and the potential impact on justice and fairness for women, we invite the Commission to include the “sexual autonomy of women” and “improving understanding of consent” in the list of factors relevant to admissibility. For a further discussion on this proposal, listen here.
A Professional Misconduct Issue
The third proposal relates to professional misconduct consequences for barristers who rely on myths and misconceptions in sexual offence cases. The proposal would bite in relation to advocates’ speeches as opposed to questioning, because a client’s instructions may invoke rape mythology and thus relate to an issue in the case. However, the suggestion is part of a wider aim to disincentivise this behaviour more generally. We have some sympathy with it. Many of the Commission’s proposals are aimed at challenging limiting beliefs around rape and consent, and as key parts of the trial process, barristers must engage with how conduct and thinking contributes to this. Frequently, news reports have flagged how the “trial was worse than the rape”.
Anecdotal experience suggests this proposal could dissuade lax, gendered thinking. In one pre-trial review, questioning of the complainant included the suggestion that being in the performance arts industry meant she could tell a good story and put on an act. It was designed to peddle the myth that women confect rape allegations. Whilst I objected, and the judge expressed understanding, the question was asked but ruled inadmissible largely because of the complainant’s (justified) reaction during pre-recorded cross-examination. The fact that the question was asked at all is problematic — the complainant’s occupation played no part in the issues in the case and reflects the normalisation of mythology (and apathy towards misogyny).
Taking a step back, the Bar has a well-documented struggle with female retention. Part of this is attributable to cultural sexism and attitudes to women. We suspect that a degree of apathy towards this issue bleeds into the way in which gendered crimes are prosecuted and defended; they are not unrelated concerns. Professional misconduct consequences sends a strong signal to advocates to further consider the relevance of questioning and that prejudiced assumptions, particularly towards women, have no place in the work that we do.
Juries Out?
Fourthly, as part of a package of radical reforms, the Commission invites views on jury-less trials. We do not support juries being removed from RASSO trials. We believe juries are more than capable of reaching verdicts unfettered by mythology. That is not to deny their impact; myths and misconceptions must be identified and robustly challenged. Ultimately, we believe prosecutors are instrumental in counteracting myths and stereotypes. Prosecutors should confront rape myths at the earliest opportunity, (the opening speech), so that even if a juror is holding a misconception, they are aware of it from the outset.
A metaphor…Picture the Titanic, just before collision. The iceberg is the acquittal; the ship, the trial. If rape myths are to be believed, the ship/trial’s fate is well known. When the watchmen see the iceberg, it’s too late to steer her off course. And so, perhaps, with prosecuting rape trials with multiple myths. Prosecuting in this context can feel akin to upending historic legal and societal prejudice — churning the propellers against a tide of belief. It requires vigilance, and strategy. Other measures may assist. We support a presumption in favour of judicial directions to address myths and misconceptions; admitting expert evidence on general behavioural responses to sexual violence; and juror education tools.
[1] S. 2(1) Criminal Procedure (Attendance of Witnesses) Act 1965