WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
April 21 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Law Commission makes proposals to better protect rape victims from prejudice

Law Commission makes proposals to better protect rape victims from prejudice

Old Bailey: the Central Criminal Court of England and Wales

The Law Commission has called for tighter restrictions on the use of rape complainants’ sexual histories and therapy notes as evidence in rape cases. The Commission urged for more to be done to prevent rape myths from influencing juries at trial.

The Commission described rape myths as ‘genuine and sincere beliefs that are factually incorrect and often derived from stereotypes.’ These include beliefs that victims will always resist rape, either verbally or physically, and that rape always involves physical force. In reality, many victims freeze through fear or shock during abuse, and rapists may threaten or manipulate their victims instead of using physical force.

To counter the influence of rape myths, the Commission has proposed powers be granted to judges to block evidence about complainants’ sexual history where it may be used to suggest complainants were more likely to have consented to sex with their alleged attacker. This proposal is based on the model used in Canada, where evidence of this kind is only permitted where it is of genuine importance to the case and does not risk prejudice.

Additionally, with the aim of making complainants feel more comfortable during trial, the Commission has proposed that complainants should be automatically entitled to measures that will help make giving evidence an easier experience, such as the ability to give evidence in private, with an exemption that allows press attendance. The report also considers whether expert evidence should be used in trials to explain to jurors ‘the complex physical and psychological responses to sexual violence’, and seeks views on this.

The proposals have generally been well-received, though criticisms remain. Harriet Bland, lawyer at the Centre for Women’s Justice, described the report as ‘really positive’, but raised concerns that it does not go far enough in restricting police and Crown Prosecution Services’ access to victims’ therapy records. The director of the End Violence Against Women Coalition, Andrea Simon, has further warned of the importance for the government to take the report seriously, saying, ‘this cannot just be another review that goes nowhere.’ Bland suggests that the Victims Bill, which is currently going through Parliament, would make for ‘an excellent opportunity to legislate on these issues.’

As the Law Commission seeks further responses to its consultation paper, it remains to be seen how such proposals can address the country’s low rates for reporting and  prosecuting sexual offences.