WARNING: This story contains potentially disturbing details. The name has been changed
After five years of waiting, Ellie finally stood up to testify against her rapist.
He had been warned that his defense team would use anything they could against him.
But still, he felt “bulldozed” when asked about the CCTV footage that showed him standing near the rapist in the bar, setting the top.
“I had to say to a room full of strangers, a jury of my friends, ‘Yes, I have big breasts, of course, and they are heavy and sometimes I have to readjust them’,” she said.
“After you ruminate and you think, ‘What does it mean, if I’m trying to be provocative?'”
His experience was far from unusual. Three-quarters of sexual assault victims report being asked at least one question in court based on what campaigners say are rape myths and stereotypes, according to new research from Victim Support. This includes being asked what they did to stop the attack, whether they drank or took drugs, and what they used.
‘You seduced him’
The defense attorney in Ellie’s case suggested that it was all a drunken night out that she later regretted.
“They stated that I drank a lot and maybe I forgot (what happened) … The narrative that this person is doing is very strange,” he said.
“(He said) ‘Isn’t it true that you weren’t raped? What actually happened is that you seduced him and you regret it the next day, right? And you can’t face the shame,” he said.
In fact, he had gone straight to bed alone after a night out, which a friend confirmed in court. He then woke up in the morning to find someone on top of him.
Her rapist, a repeat offender, was sentenced to 19 years for assaulting her and a different woman.
Despite the harrowing experience, Ellie describes herself as one of the “lucky” ones. For every 100 rapes recorded by the police in England and Wales, less than two will result in a guilty verdict.
One of the reasons is approximately 60% of those who report being raped exit the justice system before the trial was held. After reporting an assault to the police, victims can be left for months or even years waiting for their attacker to be charged. It then takes an average of two years for the case to go to trial, according to the Criminal Bar Association.
Many fear that, after years of waiting, his behavior and sexual past will be ruined to sway the jury.
We know from research into public attitudes and understanding of rape and sexual offenses that this can be an effective strategy.
After surveying more than 3,000 people, the Crown Prosecution Service (CPS) concluded that “the public’s accurate understanding of rape outweighs the false beliefs, misconceptions, lack of knowledge, and underlying stereotypes”.
Less than half of those surveyed could identify common rape myths and perceptions, and one in 10 agreed that women should take precautions against rape.
Half were not sure or agreed that men who have been drinking or taking drugs should take some responsibility if they are raped, while only a third agreed that women rarely make allegations of rape. Evidence shows that very few people make allegations of rape or sexual assault.
Underpinning all this is that the nature of rape as a crime makes it especially hard to prove, explains Kama Melly KC.
He is the head of rape and serious sexual offenses for the Criminal Bar Association, and has both prosecuted and defended in sexual offense cases.
“Most of the time there will be no witnesses or CCTV,” he said.
“Secondly, there will be no forensic evidence, because in the majority (of rape cases) consent is a defense.
“Third, it’s rare to get injured even through non-consensual sexual activity. So you’re not going to have forensics. So you’re going to have one word to someone about sexual things that aren’t easy to describe or talk about.
“And you get, ‘What is rape?’ (In the legal context) rape is not just sex without consent. Rape is sex without consent with a man who does not believe he consented.
When explaining the myth of rape, he pointed out that it is the defense lawyer’s duty to represent the client’s best interests in court, within the limits of his own code of ethics.
“Actually, the problem is that our courts often reflect society. If our society still holds women somewhat responsible for getting really drunk and going back to a man’s house, then lawyers – (who) try to fight men who say they are innocent – take how many are in the ship?”
What’s more, asking the victim about things the defendant will say in evidence at least gives him a chance to defend himself, he said.
“It’s very wrong that they (the victim) are not given the opportunity to say, ‘No, that’s not what happened.
In the end, he suggested that the judge intervene if the question goes too far or is irrelevant.
But what happens when the victim thinks the judge is also playing into the rape myth?
‘shocking’ speech
Leila, who was abused by her ex-partner, was “shocked” by the judge’s comments. This is despite the fact that he sentenced Leila’s abuser to three years in prison after he pleaded guilty to assault by penetration and various charges of sexual assault.
A second judge said during sentencing that Leila would sleep in her “bed” without underwear.
“He said I got into his bed, not ours, it’s not like I have the right to sleep in anything I feel comfortable in without fear of being attacked,” Leila said sarcastically. “Obviously if I go in without pants, it’s in my head.”
The judge told the defendant that Leila had been “reluctant to pursue sexual relations with you…
He also refused to grant an indefinite restraining order against Leila’s ex-partner, saying that “given her (Leila’s) current attitude … if she wrongly sees someone else, she will report it to the police.”
The CPS and Leila’s personal lawyer are appealing against the sentence as unreasonable.
Leila’s lawyer said the judge “reduced the offense to domesticity, used myths and stereotypes and did not give (Leila) equal treatment by pointing out that the offense occurred because the couple was ‘sexually incompatible'”.
The appeal was unsuccessful, as the court found that the judge had taken into account aggravating factors in sentencing.
What can be done to ensure that more victims do not have the same experiences as Ellie and Leila?
Victim Support wants the CPS to allow the courts to intervene when cross-examination is inappropriate and presents witnesses with unlawful or irrelevant attacks on their character.
The organization wants to see the Crown Court Compendium, which provides guidance on directing juries, updated with the latest research into understanding sexual violence.
They also want the government to set a date that will reduce the time it takes for cases to reach court, and the backlog of cases. This will help more victims complete the process and mean fewer opportunities to exploit gaps in memory, which can allow rape myths to creep in.
Working with the Inns of Court College of Advocacy, Kama Melly is helping to introduce a training course for all lawyers working on cases involving trauma since December.
The exercise explores the various effects of trauma on witnesses. This includes how memories can be disorganized or fragmented and how responses to questions can appear emotionless, angry or satisfied, but this should not be exploited.
It recommends simple measures such as arranging a pre-trial court visit so that the victim can reflect on the process and giving advance warning that they may be asked about personal topics such as mental health to help them enter the process psychologically prepared.
“It does not mean that they (victims) are not challenged. It does not mean that someone will not say, ‘You made this,’ but for some peripheral things that really affect the trauma, I hope that the course can improve,” Ms. Melly said .
“(These are) seemingly trivial things, but because they have no power in the process, they have a deep psychological impact.”
Main image: Getty
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