Courts Failing Rape Victims

A topic of conversation currently dominating the news is rape.

Two headlines across many of the front pages are the Ayia Napa case and the Weinstein trial.

If you have been on a social media and news cleanse this holiday season, this is a very brief summary of the Ayia Napa case:

A British 19-year-old woman had alleged that she had been having consensual sex with an Israeli man, when up to 12 of his friends had entered the room and raped her as well as filming the incident.  The woman reported the incident to the police within hours and the Israeli teenagers were arrested but denied the allegations.

After two weeks, and an eight-hour interrogation by Cypriot police, with no lawyer or family member present, the woman signed a statement of retraction, stating the event had not occurred and she had made it all up.

The woman was then arrested in August and charged with causing a public mischief but providing the police with ‘a false statement concerning an imaginary offence’.

Following a court case, the woman was found guilty and was given a four month suspended sentence.

There were many things that cause concern with this case that have caused women’s rights groups, celebrities, politicians and the general public to speak out in defence of the woman:

• The woman was denied access to a lawyer during questioning
• The arrested men were not asked to provide a defence or questioned at trial, instead they were released as soon as her retraction statement was signed and returned to Israel
• A full rape kit was not taken at the clinic the woman was taken to immediately after the incident, including taking evidence from her clothes or photographing and measuring her injuries.
• The police did not record her interviews
• The judge dismissed evidence submitted by a doctor that stated that “violence was exercised” and that the ‘injuries found on the victim’s body were “consistent with the rape having taken place”, as well as evidence of DNA from four of the men found on the woman.

As previously stated, this case has caused many to speak out about the injustice for the woman; there have been protests outside the Cypriot Embassy in London as well as outside the courthouse in Cyprus, including around 60 Israeli women who are showing their support.

Rape cases are not black and white by any means, they are very much in a grey area.  As a law student I shadowed a barrister in a rape case.  Acting for the girl in this case, and having heard only her side, I went into court, naively, convinced it would be an easy conviction, despite my mentor telling me it was very far from it.  However, he was right.  I left court on the first day not knowing which side was telling the truth.  It felt more that they both were, and that there had been misunderstandings on both sides.  As a juror there was certainly no way I could have said the boy was guilty.  I am saying girl and boy, because that was what they were, and what I think added to my feelings it was a misunderstanding.

It appears the jury had the same feelings and there was no conviction.  Both the boy and the girl wept, but for very different reasons.

That was my first experience of how rape is dealt with in court and the complexities it holds for both sides.  However, there are more cases where there does not appear to be a fair trial for the victim.  There appears to be a reluctance to prosecute or even bring rapist to trial.

Although abroad, this seems to be the case for this young woman in Cyprus.  In this case there seems to be a very clear message that from the initial incident, the victim was not believed or taken seriously.  It appears the authorities would prefer to accuse the victim of a false allegation rather than adequately investigate and give her a fair trial.

Speaking about the case at a protest outside the Cypriot Embassy, the leaders of The Gemini Project stated:

“A culture of disbelief and myths of false allegations means that #survivors are not believed & justice denied.”

This sums it up well.  The systemic problems that are being encountered all over the world.  Justice is being denied and instead victims are further victimised, leading to many victims not wanting to speak up about their experiences.  Many are afraid to speak up as they are scared of either the shame, blame for causing the rape or being accused of fabricating the event.

The publication Buzzfeed found that in the past decade, at least 200 women had been prosecuted for lying about rape, many of them serving time in prison for two or more years.  Despite guidelines, prosecutors went for vulnerable women as well as women who only reported the incidents whilst under pressure to the police.

Yvette Cooper, Labour MP, has stated that she found the report “very troubling” and that the guidelines should be followed by the Crown Prosecution Service so that “victims are not deterred from coming forward”.

It is understandable that false allegations should be ‘weeded out’ as they can destroy lives, however the Ministry of Justice estimated that only 3% of allegations were “perceived to be malicious”.  When looking at the statistic alongside the estimated figure of only 15% rapes actually being reported, it becomes more worrying that victims may be being deterred from coming forward.

The system is letting victims down.

In the UK, the number of rape charges has dropped dramatically, despite the number of rapes being recorded.  One reason being cited is that over half of complainants are withdrawing their allegations.  Could this be due to the fear of victims not being believed or that they may be investigated or charged with providing a false allegation?

Many are withdrawing due to the fact they are asked to provide very intimate details, reliving the event over and over again, often over a long period.  Victims are also asked to hand over their phones, all their intimate contents being trawled over by strangers, and in some cases being made very public – resulting in their friends, colleagues, family and strangers finding out details that may have no relevance to the case but could ruin their reputation.  One woman even stated that the police had told her they were actively looking for evidence to discredit her – rather than focusing on supporting her and her case.

This is not the only reason why victims might not be coming forward with their allegations of rape.  Stories appear in the news of women somehow blamed for causing the rape.

In 2018 a girl in Northern Ireland had the underwear she wore during the incident used as evidence against her, with the defence lawyer stating:

“You have to look at the way she was dressed. She was wearing a thong with a lace front.”

In a recent case, a judge ruled that as a woman had taken ‘no physical steps’ to stop the rape, it did ‘not constitute rape’.  This is despite evidence that victims are often ‘frozen’ during the event.

“Many survivors describe freezing and feeling unable to move to escape, or to cry out or fight back, and this response is just as normal and natural as any other.” – Rape Crisis Scotland

The definition of rape does not include any mention of a victim needing to show physical signs that they do not consent…. The requirements are penetration, lack of consent and that the accused does not believe they have consent, which is dependent on all the circumstances, including steps taken to ascertain consent.

In each case the accused was found not guilty.

I am in no way oblivious to difficulties in proving each case.  Rape in its very nature is an intimate event, mostly done in private, resulting in the word of one against the other.

Police and the CPS should obviously ensure all evidence is collected and that false allegations should be discounted.  The case of Liam Allen who’s trial collapsed after text messages were revealed to his defence team, casting doubt on the allegations of rape, is one that springs to mind.

As we enter a new decade, we can only hope that the injustices of rape victims are held up, social attitudes and legal attitudes change.  Outdated views on what a victim should do and victim blaming should stop.

Katie Russell, a spokesperson for Rape Crisis England and Wales, said:

“People who’ve been through this want and deserve access to justice but the vast majority of rapists and perpetrators are walking free…

“We have been calling for a complete overhaul of the criminal justice system in relation to sexual violence and abuse for many years, and it is now beyond urgent.”

The introduction of the Domestic Abuse Bill and its protection of victims will help, but more needs to be done and the thin line between true and false allegations needs to be navigated carefully and sensitively.