Dear Mrs Justice Cox,
We write in response to your request for comments about “judicial behaviour and court procedure.”
The list of “key points” in the Equal Treatment Bench Book chapter on “Women and Equality” makes no mention of rape, and the treatment of rape in the chapter is very inadequate. Women and girls face particular discrimination on this issue. Therefore, we urge you to include rape and sexual assault as one of the diversity areas that needs enhanced understanding and commitment.
BWRAP and WAR have been supporting women who have been raped for a combined 45 years. We would like to comment further on these issues and would welcome an opportunity to meet.
Sexism and other prejudices from the judge
While we disagree with the government’s assertion that judges are too lenient on crime in general (including verbal statement by Solicitor General in meeting WAR on 10 May), we have much experience of judges being too lenient on men accused of rape or sexual assault – too ready to believe the man over the woman. The summing-up is critically influential, as are decisions throughout the trial regarding what evidence to allow or disallow. Rape survivors have said over and over again that the judge and the court procedure were so biased against them that a fair trial was impossible.
You “identify ethnicity, religion or non-belief, disability, age, gender, sexual orientation and poverty and social exclusion as particular areas where enhanced understanding is needed and great care must be taken.” (Your letter seeking assistance, 15 June). In rape cases prejudice on all these areas combines with assumptions about sex and rape, and, in many cases, with unwarranted beliefs around the effects of drink and recreational drugs, mental health or mental health history, occupation and sexual history.
The restrictions (under Section 41 of Youth Justice & Criminal Evidence Act) on raising women’s sexual history in court are frequently flouted by barristers and judges. Recent research found that sexual history evidence is still used in more than three quarters of rape trials (Times, 21 June 06). It found that judges do not know the law and do not apply it; many resented it. When the defence introduces sexual history evidence without prior permission, the prosecution does not counter it. The use of innuendo is commonplace and unchallenged. In a recent case, a 15-year-old girl raped by a 28-year-old man was accused of “having a reputation” at the local youth club. The youth club leader would have forcefully denied that – but he was not called to court. Judge Van der Werff should have excluded that evidence, and pointed out that the girl’s reputation was not relevant. Instead, he emphasised the man’s “good character” even though he had a previous conviction for dishonesty. (R v Hassib May 2006)
Rape and abuse of children
Judge Julian Hall recently gave a man a two year sentence for sex with a 10-year-old girl who, the judge said, “dressed provocatively”. Many members of the judiciary appear to sympathise with paedophiles and with men’s alleged problems in ascertaining a girl’s age. News reports also say that the same judge ordered a paedophile to buy his six-year-old victim a bicycle. Why hasn’t this judge been barred from rape trials?
In another recent case, Judge Van der Werff consistently referred to the previously mentioned 15-year-old girl (who looked 12) as a “woman” and to her and her friends as “those women”. He then explicitly instructed the jury to disregard as “irrelevant” the victim’s age, “in case it is worrying you that she was 15 at the time” despite the fact that only her age and naivety explained how she ended up in the man’s flat in the first place and why she was so vulnerable to him.
Misdirections or failure to explain the law on consent and prejudice re alcohol
The law says that women must have the capacity and freedom to consent. It does not include being drunk in its list of situations where the jury should presume that consent is impossible. But while drunken consent is sometimes consent, often it is not.
Judges have a duty to spell out to juries that men have a responsibility to find out if a woman consents. And that even if she is not unconscious, she may still be incapable of meaningful consent. The jury should be asked to decide whether the woman was in a fit condition to give her consent, or whether the man took advantage of someone who was unable to resist or protest. In some cases consumption of alcohol is allowed to hide the fact that the woman did not consent at all, she may even have been asleep or unconscious.
One of our members woke up on her sofa being penetrated from behind by a man who earlier had been witnessed sleeping on her floor. The trial was halted by the judge because she could not remember details about a cup of tea many hours earlier: might she have consented during the period she had now forgotten? The judge should have let the trial run its course and put the question to the jury, did she consent at the time of the penetration?
Judge directed acquittals
The case above is typical. Judges frequently stop rape trials, taking the case out of the hands of the jury. The judge does not believe the evidence is strong enough, even when the rape survivor’s testimony is compelling, and the defendant’s lies and contradictions have yet to be heard. It leaves victims devastated and jurors bewildered. Instead, the judge should let the jury hear the evidence and decide.
Listing of rape cases for court
It is unacceptable that rape cases are listed as “floating” – waiting for an available court room. The victim is forced to prepare herself emotionally for reliving a very traumatic experience in an often hostile court. She may wait for hours or be sent home and made to go through the process again after a further agonising wait, during which she cannot put the violence to the back of her mind.
Jailing women for perverting the course of justice
We have seen an alarming increase in women being prosecuted when their reports of rape are deemed false. The readiness of the CPS to prosecute such cases on tenuous evidence, and punitive sentences handed out by judges, even to teenagers, confirm the sexist bias of the criminal justice system. There is general agreement that false allegations are extremely rare. In addition, many allegations deemed false are the result of sexism and other prejudices by police and prosecution – the evidence is badly gathered and presented so that the victim’s case is not properly made. Women are then accused of lying. Women are now even more afraid to report rape in case they are not believed. Judges do not seem to take into account the effects of ending up in prison, on someone who has reported a rape, and on victims of rape generally who have to consider whether or not to report the crime committed against them. The courts’ sexism is turning the clock back.
Holding judges to account
The injustice of the 5.7% conviction rate is devastating to victims. It also illustrates the sexism women and girls face at the hands of the criminal justice system. Although some blatant decisions can be appealed if it can be shown that they are wrong in law, or with some forms of judicial misbehaviour, there is usually no recourse. Judges are “above the law”. The Solicitor General recently informed us that no judge had been sacked since 1870. We are not asking for government interference. In fact, we are very concerned about politicians attacking the judiciary when it rules against the Home Office in breaches of human rights, for example.
The system of rape-ticketing which allows judges to sit in rape and murder trial is not publicly accountable or “transparent”. Rape victims can complain about a judge but are not allowed to know if others have complained against him before. Rape-ticketing should ensure that judges who can be shown to be biased or otherwise incapable of conducting a rape trial fairly should lose their ticket – and this should be publicised, along with the reasons for it, to serve as a warning to other judges.
We hereby request the names of judges who have had their rape ticket removed, and the reasons why.
Rape victims seeking asylum
Over 50% of women claiming asylum in the UK and over 70% of women in detention are rape survivors.[i] We have documented the obstacles they face at every stage of the asylum process in getting acknowledgment of the rape they have suffered.
Our recently published research, Misjudging Rape: Breaching Gender Guidelines & International Law in Asylum Appeals[ii] ,which we enclose,found that:
· Few judges had any understanding of the impact of rape and the resulting trauma, most paid no attention to the IAT Gender Guidelines which address such issues.
· Some displayed entrenched sexism, hostility and prejudice of other kinds.
· Women faced a chronic lack of competent legal representation and the near impossibility of getting expert medical, psychological and country reports which could corroborate their claim. Over 60% of women are unrepresented at their appeal hearing.
· For women in detention and particularly for those processed under the fast track, these difficulties are compounded.
As a result, most women’s claims are refused without the full evidence of the persecution they suffered being put before the authorities. One way to address this would be to reinstate IAT Gender Guidelines drawn up for decision makers who are assessing claims from women fleeing persecution.
On 27 March 2007, Bridget Prentice MP, Secretary of State for the Home Department, having considered our research, Misjudging Rape, answered a question in Parliament on this issue. She said the Gender Guidelines never had binding authority on the [immigration] tribunal. She implied that they are not needed because “all immigration judges receive training in diversity” and have access to the Judicial Studies Board Equal Treatment Bench Book.
Whilst the JSB Bench Book acknowledges such issues as a victim’s reluctance to report rape and the hostile questioning women often receive in court, it makes no mention of the particular situation of rape victims who are asylum seekers. It is extraordinary to imply that it could be a substitute for the Gender Guidelines. The Gender Guidelines were developed over years in consultation with specialist groups working with rape victims, including ourselves, and contain much needed information and guidance on how to take into account the particular situation of women and rape survivors when considering the jurisprudence of the Refugee Convention, the often intimidating court procedures and environment and the evidence produced in support of a claim.
In any case, whatever guidance immigration judges are following it is clearly not working because women continue to report that they face blatant hostility and discriminatory attitudes. And without legal representation, women have little chance of even recording, let alone getting redress against such discriminatory treatment. We are writing to the Lord Chancellor to follow up our research findings in relation to particular judges.
Cristel Amiss Ruth Hall
Black Women’s Rape Action Project Women Against Rape
The Honourable Mrs Justice Cox DBE
Chair, Equal Treatment Advisory Committee
Judicial Studies Board
9th Floor Millbank
London SW1P 4QU
3 July 2007
[i] A Bleak House for Our Times, An investigation into women’s rights violation at Yarl’s Wood Removal Centre, Legal Action for Women, December 2005
[ii] Black Women’s Rape Action Project and Women Against Rape, December 2006