The Law Commission of England and Wales has officially published views sought on proposals to counter effects of rape myths in sexual offence trials.
Every year in England and Wales, around 128,000 adults – over 90% of them women – report to the Crime Survey of England and Wales that they are victims of rape or attempted rape. The trial process is an integral step to accessing justice.
As part of its 2021 End-to-End Rape Review, the Government asked the Law Commission to examine the law relating to the use of evidence in sexual offences prosecutions. While progress has been made, evidence shows that the criminal justice process for rape and serious sexual offences is still flawed, and more can be done to ensure sexual offences are tried justly, without traumatising complainants.
In its new consultation paper, the Law Commission sets out proposals aimed at countering the effects of rape myths and misconceptions on the trial process, treating complainants humanely, and ensuring that defendants receive a fair trial.
The Commission’s proposals seek to address the way that evidence, such as a complainant’s counselling records or sexual history, can be used to undermine their credibility by relying on myths and misconceptions. The Commission therefore proposes methods to help jurors better understand such misconceptions and calls for greater judicial oversight of how evidence is obtained and used.
The Commission proposes measures that would help complainants understand their rights and allow them to be more involved in decisions about their personal records and evidence of their sexual behaviour.
The proposals will protect the defendant’s right to a fair trial by ensuring that they can present evidence relevant to their defence without causing unnecessary trauma to the complainant.
Commenting on the new proposals, Professor Penney Lewis, Criminal Law Commissioner, said:
“The last few decades have seen incremental progress in how sexual offences are investigated and tried in England and Wales. However, the way that the criminal justice system handles rape and serious sexual offences still leaves prosecutions at risk from the impact of pervasive rape myths, and can often cause distress and trauma.
Our proposals are therefore aimed at improving the way that evidence is used in sexual offences prosecutions to do justice to complainants and defendants – fairly, compassionately, and with a better understanding of consent and sexual harm.”
Proposals set out by the Law Commission in its consultation paper include:
- A bespoke regime for access, disclosure and use of complainants’ personal records, including counselling notes. This regime would include judicial oversight of whether and how these records should be used, considering factors such as the complainant’s right to privacy and the importance of the records to the defendant’s case.
- New framework for restricting the use of evidence of complainants’ sexual behaviour and compensation claims. When deciding whether to admit this type of evidence, the judge would consider factors such as the risk of perpetuating myths and misconceptions and the defendant’s right to a fair trial.
- Giving complainants an automatic entitlement to measures to assist them to give evidence, such as giving evidence over live link, or in private (with an exemption that allows press attendance).
- Independent legal advice and representation for complainants, which would allow them to make informed decisions about the way their evidence is given and used, and to participate in decisions about the use of their sensitive personal information.
- The paper also considers the use of educational tools that could help minimise the impact of rape myths on jury decision-making. These could include, for example, the use of expert evidence to explain the complex physical and psychological responses to sexual violence.
“Criminal trials depend on the participation of complainants, so it is vital criminal justice agencies and the courts ensure their interests are protected and their experience in the trial process is as trauma-free as possible,” said Law Society of England and Wales President Lubna Shuja. She added:
“But the fundamental right to a fair trial of the defendant must also be ensured and it is heartening to see the Law Commission recognises this. Crucially the government must invest across the criminal justice system to reduce the huge backlog of cases which is leaving both victims and defendants facing unacceptable delays.
The Law Commission’s detailed proposals for reform of evidence rules in sexual offence prosecutions will be carefully considered and we will respond in due course.”