By David Lorimer, a guest writer.
The law on rape in the UK varies throughout the jurisdictions of Scotland, Northern Ireland, England and Wales. Yet, each nation struggles to provide support, protection and justice to those who claim that they have been raped. This is best illustrated by the low conviction rates for rape throughout the UK and the ongoing efforts for rape law reform by institutions, such as Rape Crisis Scotland, as well as politicians like Anne Coffey MP and established members of the legal profession such as Lady Dorrian in Scotland and Sir John Gillen in Northern Ireland. Recent figures from the Crown Prosecution Service in England show that while complaints of rape increased over the past six years to almost 60,000 in 2018, prosecutions for the crime have dropped to their lowest levels in more than a decade, with just over 3 per cent of reported rapes resulting in conviction.
As an experienced consulting engineer turned legal researcher, I believe there are important similarities between the probabilistic assessment called for in legal trials and the risk analyses carried out by engineers in high risk industries. For example, when a multi-national company carries out industrial risk analysis on a major technical project, they gather experienced professional personnel and contractors from different stakeholder disciplines to analyse the projected time-line of events systematically in order to identify risks at each key stage before assessing overall likelihoods of occurrence. This is similar to how civil courts and public inquiries operate, albeit in a retrospective as opposed to predictive manner. One of the best documented examples of such retrospective analysis is Lord Cullen’s report on The Public Inquiry into the Piper Alpha Disaster, which killed 167 workers on 6 July 1988 off the coast of Aberdeen in the world’s deadliest ever oil rig accident. Indeed, Lord Cullen’s assessment of the events leading up to the tragedy, and his subsequent safety recommendations, had a profound impact on the predictive risk analysis subsequently required by law in the UK’s Oil and Gas industry. The probabilistic analysis called for in legal trials is an assessment of blameworthiness against a standard of probability (‘beyond reasonable doubt’ in criminal cases and ‘on the balance of probability’ in civil cases). In a rape trial, there are often two distinct stages of risk assessment.
The first stage of risk assessment is conducted by the trial judge, pre-trial. So called ‘Rape Shield’ legislation is supposed to bar evidence of a complainant’s sexual and medical history from being admitted at trial but if a judge can be convinced at the pre-trial stage that the risk of any jury bias (known as ‘prejudicial effect’) arising out of admission of such evidence is outweighed by the ‘probative value’ (the true probative weight, if you will) of that evidence, then he can deem that the evidence is admissible. The law here stems from a landmark House of Lords judgement that was made in 1991 (Lord McKay, DPP v P), where an often-oversimplified precedent was set leading to the legal fiction that jury bias can somehow be directly outweighed or negated due to the strength of evidence giving rise to that bias. The dubious nature of the logic which underlies this ‘paradigm’ was illustrated recently in the Ched Evans case. Evans was found guilty of rape but, on appeal, new evidence relating to the complainant’s allegedly promiscuous sexual history was deemed admissible, fundamentally on the legal basis that the new historical evidence (defined as ‘similar fact’ evidence under English law) was of sufficient strength (‘probative value’) to outweigh its prejudicial effect. The way this evidence was introduced was questionable and when the jury, upon retrial, took just two hours to acquit Evans there was a subsequent furore from women’s groups and campaigners looking to reform the laws on rape and improve the plight of complainants. Yet the underlying misconception which runs through the UK’s criminal law, namely that probative value can simply outweigh prejudicial effect, has never been held to account. In fact, prejudicial effects against complainants are exacerbated by evidence which has a tendency to discredit them.
The second stage of risk assessment in rape trials is carried out by the jury at the trial. Due to the common adversarial system, emotive responses may be engendered from jury members wherever advocates and barristers can bring them into play. This effectively feeds on prejudice and preconceived ideas (particularly ‘rape myths’) . The law has been tweaked over the years to try and combat such unfair advantage being brought to bear, but one only has to attend a rape trial to observe such practices first hand – blatantly alive and kicking. Members of the jury often lack an understanding of the complexities of the law in addition to the social, sexual and psychological factors bearing upon difficult, relatively technical, cases such as rape. The jury’s assessment is thus liable to be influenced by preconceived notions of justice, the imagined mythology of rape and other, perhaps cultural, personal or historical, prejudicial effects.
This two-stage risk assessment process is fraught with misconception and inconsistency. A judge may be unlikely to bar certain evidence that, if left out, may give rise to an appeal or impact the perception of a fair trial, yet s/he is at liberty to withhold evidence based on some form of pre-trial value judgement about probative strength (or lack of it) with respect to notions of prejudice. The jury takes this ‘pre-filtered’ evidence and is unlikely to see things analytically from a legal perspective, particularly where sexual or medical history impacts on the credibility of the complainer and jury room performances have stirred up personal prejudices.
In industrial risk analysis, the idea of having one party, no matter how experienced or knowledgeable, predetermine or limit what technical information should be passed on to a second party of untrained amateurs for them to embark, unattended, upon the final detailed and complex analysis with very serious consequences, would be unconscionable. So why are difficult cases like rape being decided in this way? Such divided, tainted and, in the end amateurish, risk assessment is not a recipe for systematic, precise or objective analysis.
Given the shortcomings of the current system for rape trials, legal reform to allow complainants an option for trial without jury could go a considerable way to empowering victims and providing better evaluations in rape cases. This approach works well in non-jury civil courts (and inquiries), which are more suited to complex technical analysis of events than criminal courts with public juries. This is part of the reason why failed criminal rape cases have recently found success and a limited level of justice for victims in the civil courts (see ‘Miss M’ v Coxen and Ms Clair v Goodwillie and Robertson). A systematic reform of the criminal law could bring in changes incrementally, such as in the first instance, the option for the complainant* to ask for a trial without a jury wherever sexual or medical history has been deemed to be admissible.
In conclusion, introducing a complainant’s option for a non-jury trial or specialist panel could provide the opportunity for consistent, informed, and educated analysis to be carried out by a small, cross-disciplinary panel of professionals (with perhaps one or two members of the public) with all the relevant knowledge, facts, and evidence available to them – both live and recorded. This would amount to an empowerment of the complainant in a process in which they have historically been relatively powerless and voiceless. Incremental implementation would provide the opportunity to monitor judgements and any unforeseen potential for appeal.
*Known as the ‘complainer’ under Scots law.