Joanna Cherry: How justice system can better serve women who have been raped

The backlog has built up since the courts had to close at the start of lockdown in 2020 but even before then the system was struggling to cope.

It is against this background that the Lord Advocate has told MSPs that “radical action” is needed. The World Health Organisation describes sexual violence against women as a major public health problem and a violation of women’s rights which perpetuates gender inequality.

The delay in bringing cases to trial is having a particular impact on women and girls at a time when we face an epidemic of male violence against women.

The Lord Advocate is also concerned about the low conviction rate in sexual offence cases. Scottish Government statistics show that just 43% of cases of rape and attempted rape in 2019-20 resulted in a conviction – compared to a rate of 88% for all crimes.

And so, the Lord Advocate told MSPs on Holyrood’s Criminal Justice Committee, the time has come to look into doing away with juries in trials for sexual offences. I opposed pursuing juryless trials to keep the courts moving at the start of the pandemic and I have serious reservations about this latest suggestion. I agree with Helena Kennedy QC that the jury system is not perfect, but the diversity of thought juries bring to the decision-making process will always make jury trials a preferable option to relying on a single judge to administer justice in the most serious of crimes.

However, this time round, no-one is proposing getting rid of jury trials wholesale. In a recent review, Scotland’s second-most-senior judge, the Lord Justice Clerk, Lady Dorrian proposed a pilot project to test out judge-only rape trials “to enable the issues to be assessed in a practical rather than a theoretical way”.

And there is an evidential background to the proposal. Fiona Leverick, Professor of Criminal Law and Criminal Justice at the University of Glasgow, has published research into jury decision-making in which she found “overwhelming evidence” that jurors hold “prejudicial and false beliefs” about rape that affect their evaluation of evidence at trial. These include the belief that a “real” rape victim would have injuries and that even a short delay in reporting a rape is suspicious.

These findings are concerning. However, in my experience, they could be met by adducing expert evidence that in the vast majority of rapes there are no visible injuries and by the judge directing the jury to ignore rape myths.

I served as one of the first specialist sex crime prosecutors in the National Sex Crimes Unit which was set up in 2008. I spent three years prosecuting mainly sexual offences in Scotland’s High Courts and dealing with the consequent appeal cases. The low conviction rate is a historic problem and I met many complainers who were deeply dissatisfied with their experience of the system despite all the efforts that have been made to improve it.

Both the Lord Advocate and the Lord Justice Clerk are right that something needs to be done. But we must do the right thing.

Previously, it was proposed that we do away with the requirement for corroboration. However, I never thought this would improve the conviction rate. One of the main problems with prosecuting sexual offences is the lack of independent evidence to substantiate the complainer’s story in a crime where there are rarely eyewitnesses.

The police need to be encouraged to gather more evidence, not less, in order to make sure juries can be convinced of guilt beyond reasonable doubt. By contrast, in cases where there are two or more complainers, giving evidence of similar behaviour against the same man, it is vanishingly rare not to get a conviction, unless of course the complainers are not believed because there is evidence from the surrounding facts and circumstances, including defence evidence, which shows they have not been telling the truth.

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JUST before Christmas, the Lord Advocate announced a review of how prosecutors deal with reports of sexual offences. At the same time, the Crown Office and Procurator Fiscal service will also carry out a review of its Victim Information and Advice Service.

The Lord Advocate has acknowledged that whether to do away with jury trials is ultimately a question for MSPs. She is right and I hope they will look at all the evidence and hear all interested parties. I also hope they will cast their net wider and look at the treatment of those who report sexual offences throughout our system from start to finish.

Earlier this year, it was alarming to hear that some MSPs thought the feelings of medical examiners and their personal validation were more important than the very well evidenced preference of women who have been raped to be examined by a female forensic medical examiner. Ultimately, Parliament saw sense but some of what was said during the course of the debate was frankly outrageous.

Now, plans to allow men accused of rape to self-identify as women in official police and court records are causing concern not just to the survivors of rape and sexual abuse but also to the police themselves and academics. Many feel that it is wrong to prioritise the feelings of alleged rapists over the feelings of their victims and academics are worried about the distorting impact on sexual crime statistics as well as the impact on victims.

Yet it seems Police Scotland has a policy of recording men who have been accused of rape as women provided the alleged attacker “identifies as female” – despite the fact there is no legal requirement for them to do so. It was a relief to hear our Justice Secretary, Keith Brown, concede that “ allowing rape suspects to self-identify as women after they are arrested is not without its ‘dangers’,” but Parliament needs to look at this more closely.

A similar issue causing concern to survivors, academics and lawyers is the notion that a woman who complains of rape or other sexual assault should be compelled to use female pronouns in court in relation to her male attacker, if he self-identifies as a woman.

Again, it is important to stress that at present there is no legal requirement for such compelled speech. However, advice that it is best practice has found its way into the bench book guides for judges both north and south of the Border.

And in England there have been cases where the female victims of male violence have been forced to refer to their attacker as a woman in court, to their visible distress.

THE new Equal Treatment Bench Book for England and Wales has rowed back on this position and sets out circumstances where witnesses will not be compelled to use preferred pronouns which don’t align with biological sex including explicit exceptions for women giving evidence about their experience of sexual and domestic violence. I hope we will see a similar revision to the bench book in Scotland.

I believe passionately that we must strive to have a scrupulously fair trial system while at the same time working to improve the experience of those who complain of rape or sexual abuse from end to end of the system. This starts with the complainers’ first encounter with the police and the forensic medical examiner and continues with their experience of rape crisis and victim support as well as the prosecution process including the trial and the aftermath.

There is no point in being prepared to take the drastic step of ditching jury trials in the name of improving the prosecution of rape from the victims’ point of view if the system permits the gaslighting of victims in court by their attackers and the skewing of important statistics by self-identification of sex by the perpetrators of rape.