The first episode of Broadchurch was devastating television. Throughout, Julie Hemondhalgh’s character Trish was almost catatonic with shock after her rape ordeal.
DS Ellie Miller (Olivia Colman) and DI Alec Hardy (David Tennant) tiptoeing the victim through the elaborate, intricate processing of evidence and testimony. Firm but guiding, professional yet sympathetic.
Swabs, evidence bags, platitudes, questions of credibility and timelines of a time lost in a black hole. Yet, the worst is to come, you’re thinking – the trial, the cross examination…
For every rape reported to the police in the UK, only 7.5% will result in a conviction. The statistic would be shocking at any time, but is more pressing these days – for there has been a rush of complaints of following high-profile cases such as Jimmy Savile.
There are understandable reasons why many of the 92.5% who report a rape find no redress. Historic cases are hard to prove, forensic evidence is often missing, and the he-says-she-says comes up against the presumption of innocence.
However, the 92.5% figure hides an even greater scandal of unresolved trauma. Most rapes go unreported. The reasons are varied and never less than sad – because the rapist is a relation, because no-one will believe the story, because of the ordeal of the trial.
It is the last reason that deserves greater examination. The adversarial system has always been hopelessly inadequate in dealing with rape. It is a gladiatorial battle, played out in public, where a defence lawyer’s quick wit and aggression are deployed to deconstruct a moment frozen in terror, prised from a victim lost to agony.
Worse still, safeguards against intrusive cross-examination are often ignored. The Youth Justice and Criminal Evidence Act 1999 introduced safeguards against character assassination. Section 41 stated that previous sexual conduct was not to be considered relevant if the aim was to impugn the credibility of the victim.
Yet a new study in Northumbria has shown that previous sexual history has been raised in more than one third of rape trials. The judge has the power to shut down that line of attack. In a third of cases studied, they declined.
The study’s author, Dame Vera Baird, the Northumbria Police and Crime Commissioner, said that “previous sexual conduct was used to discredit [the complainant] in precisely the way that section 41 was intended to prevent”.
More radical solutions
The 7.5% suggests a more radical approach is overdue. Across the legal system a greater use of the inquisitorial system is beginning to take hold. The judge leads the inquiry in search of the truth.
Recently New Zealand briefly considered the idea of an inquisitorial system in rape cases in which the judge would interview the victim after consultation with prosecuting lawyers and there would be no cross examination.
In the Netherlands, courts in rape cases work more like an official inquiry with evidence presented, fait accompli, as written statements. Maybe both are “a step too far” – the reason why the New Zealand proposal was abandoned.
But the 92.5% and the legions who stand behind them, lives blighted by trauma, deserve a radical exploration of alternatives, and better reason for the status quo than tradition.
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