Law Commission consults on proposals to counter rape myths in trials

The Law Commission has today (23rd May 2023) published proposals for consultation to improve the way that evidence is used in sexual offences prosecutions, counter the effects of rape myths on trials, and improve the treatment of rape victims and survivors.

Following the catastrophic drop in rape prosecutions, the government published its 2021 Rape Review which tasked the Law Commission with looking at the law relating to the use of evidence in sexual offences prosecutions.

We’ve long raised the alarm about how our broken criminal justice process harms and retraumatises survivors of rape: treating them like the one under investigation rather than the perpetrator; inappropriately requesting their private counselling, medical and school records in attempts to ‘discredit’ them; making decisions on whether to progress their cases based on rape myths, stereotypes and discrimination; subjecting survivors to ruthless cross-examinations in the courtroom; and ultimately failing to deliver justice.

These issues, combined with the lack of accountability and transparency in both police and Crown Prosecution Service (CPS) decision-making and appeals processes, leave victims and survivors of rape feeling disempowered, disillusioned and often regretting having engaged with the criminal justice process at all.

Disproportionate requests for rape survivors’ private information

We’re pleased to see the focus of the Law Commission’s proposals reflect many of our own recommendations, including those from our 2020 Decriminalisation of Rape report with Rape Crisis England & Wales, Imkaan and the Centre for Women’s Justice, and other campaign work.

For example, the Law Commission acknowledges the need to address disclosure of rape survivors’ counselling records, and that this may require legislative change and legal support.  This is a key ask for our Keep Counselling Confidential campaign which we want to see the Victims and Prisoners Bill address.

As the Victims Bill begins its journey through Parliament, recommendations to introduce independent legal advice for rape survivors and protection of their counselling notes were raised at the Bill’s second reading and are supported by the End Violence Against Women Coalition, Rape Crisis England & Wales, and the Centre for Women’s Justice.

However, we hope to see that the final models proposed for legal protection for counselling notes and independent legal advice match the proposals from women’s sector experts who understand the challenges victims face. This is essential to ensure victims’ privacy rights are met.

We are also encouraged to see Law Commission proposals that include:

A new framework for restricting the use of evidence of rape victims’ sexual behaviour and compensation claims. We have long recommended that the law on sexual history evidence be amended to create an up to date, clear, meaningful ban on the use of sexual history evidence by the defence in court. Currently, a victim’s data can be routinely summoned in court as evidence to imply consent was given – including all photographs, videos, private social media conversations and text messages. Evidence used in this way is disproportionate and unfair. We need to make sure that disclosure rules and practices do not stray into, and do not encourage police or prosecutors to stray into gathering evidence that would be used to relate a complainant’s ‘sexual history’.

Giving complainants an automatic entitlement to measures to assist them to give evidence, such as giving evidence over live link, or in private (with an exemption that allows press attendance). Section 28 (pre-recorded cross examination for vulnerable witnesses) was announced in the 18-month Rape Review Progress Report and is promising as a means to try and reduce the trauma often experienced by survivors going through the criminal justice system. However, the lack of resources to support it and lack of coordination in its implementation are concerning. There are ongoing concerns regarding how it is operating in practice. We await the evaluation of the scheme and call upon the government to sufficiently resource this work to ensure it benefits survivors.

Use of educational tools that could help minimise the impact of rape myths on jury decision-making. These could include, for example, the use of expert evidence to explain the complex physical and psychological responses to sexual violence. In 2020 in our Decriminalisation of Rape report we recommended an ongoing and government-backed public awareness campaign about consent and rape myths.

Andrea Simon, Director of the End Violence Against Women Coalition (EVAW), said:

“We welcome the Law Commission’s recommendations and are pleased to see it has listened to the specialist violence against women and girls sector and incorporated our views and expertise. However, it’s been two years since this review was recommended by government as an action in the 2021 Rape Review, and this process is only just beginning now, having been delayed several times.

Victims and survivors should be treated with dignity and respect throughout the criminal justice process. However the reality of their experiences is a world away from this. Rather than delivering justice and support, survivors and advocates have long said that the criminal justice system is a site of harm, which retraumatises victims and reinforces victim blaming at every turn. These recommendations are a hugely important step in transforming this and building a fairer and more equal society.

As a society, we rightly expect the criminal justice system to effectively prosecute rape and sexual violence and deliver justice. But despite a government apology and countless commitments to transforming the system, charging and conviction rates remain alarmingly low. All of these issues are rooted in sexist stereotypes and rape myths.

If the government is serious about ending violence against women and girls, it is imperative that it acts on the outcome of this consultation. This cannot just be another review that goes nowhere. Survivors deserve better.”

ENDS

Media contact

Sinead Geoghegan, Communications Manager, media@evaw.org.uk 07960 744 502