Press comment from WAR, 27 October 2016
We welcome the proposals by Attorney General to look again at Section 41, and at judges’ training and instruction to juries.
Women Against Rape has campaigned on this issue for many years, to get the law changed so that a woman’s sexual history with men other than the defendant is disallowed. But when the law was introduced in 1999 it did not make that distinction. Section 41 left a number of openings for barristers to continue to raise her sexual history.
We don’t know how often this particular clause in Section 41 is being used – only this one has been publicised. The Ched Evans case has had wide publicity because he is a celebrity footballer and has wealth and social power. We suspect this influenced the decision to allow this woman’s sexual history to be raised.
We don’t believe this case is unique.
We don’t know how often sexual history is admitted as evidence in more subtle ways or under the guise of something else - for example if a woman has made previous allegations of rape or domestic violence.
But we do know that reports have doubled in the last four years and the conviction rate is down to about 4%. So it is clearly harder for women to get justice, and is a key factor putting women off reporting.
Unscrupulous defence barristers break or bend the rules to make rape victims look like liars, and sexist judges allow it.
Some of the things they bring up, in our experience, are:
-Previous reports of rape/domestic violence (there are so few convictions that any mention of this can be used to suggest that you lied)
-Medical records/counselling notes
-Any behaviour in your past about which a moral prejudice can be tapped into
Any of the above can be delved into and used to trash the woman’s character so that the jury turns against her.
If sexual history as used in the Evans case is used more in the future the conviction rate for rape will go even further down so that rapists will assume even more that they can get away with it.
Further, this is only looking at what happens in court. But the assumption that women lie about rape influences the whole investigation from the beginning and is a major reason why the great majority of cases never even get to court. Any previous report of rape or domestic violence becomes an excuse to drop your case because they assume it will be used to discredit you in court. If you report rape and you don’t get justice, this will be used against you in other legal actions, in workplace disciplinary hearings, in asylum applications, in family courts ... This sticks with you for life, and can be raised to embarrass, discredit or re-traumatise you and dismiss any subsequent attack against you. This is all despite the fact that many women have been raped more than once in their lifetime, and that hardly any result in a conviction.