ABSTRACT
The Home Office of England and Wales recently published a report addressing the issue of attrition in rape cases.1 The proportion of recorded rapes resulting in a conviction has declined from 24% in 1985 to just 9%.2 The Home Office study examined 483 incidents initially recorded as rape by the police in 1996 and followed their progress through the criminal justice system. The study found that only 6% of the cases originally recorded by the police as rape resulted in convictions for rape. A striking finding of the study was the high level of complainant withdrawal at the pre-trial stage of the criminal process. In the 31% of cases in which no further action was taken and the 25% of cases which were ‘no-crimed’ by the police, the most common reason was complainant withdrawal.3 While recognising that women decide not to pursue allegations for many reasons, the report significantly accepts that the prospect of a traumatic courtroom ordeal prompts many women to withdraw: ‘The high rate at which complainants withdraw and previous research… strongly suggest that complainants feel that giving evidence in court would be a harrowing ordeal.’4 The personal testimonies of women who have testified in rape proceedings confirm that giving evidence is often a humiliating, gruelling and ultimately unrewarding process. Many women have described their treatment in court in terms of further abuse:
Explaining the treatment of rape complainants in court has formed a specific site of inquiry for feminist scholarship. Prevailing explanations have focused predominantly upon the cultural rape myths which pervade rape prosecutions,7 the operation of discriminatory evidentiary rules,8 sexist attitudes on the part of judges and lawyers9 and the inadequate regulation of sexual history evidence in rape cases.10 This chapter locates the treatment of rape complainants in the wider context of the adversarial system of trial and the essentially competitive culture of the adversarial courtroom. It argues that the adversarial system itself represents as potent a barrier to the decent treatment of rape complainants in court as do the diffuse myths and discriminatory stereotypes that continue to surround rape allegations and any ambivalence on the part of judges and lawyers to the position of the rape complainant. This chapter specifically addresses the difficulties complainants face during cross-examination and in giving direct oral evidence in open court.
