Credibility in context: Jury education and intimate partner rape

AuthorLouise Ellison
DOI10.1177/1365712718807225
Date01 July 2019
Publication Date01 July 2019
SubjectArticles
Article
Credibility in context: Jury
education and intimate
partner rape
Louise Ellison
Professor of Law, University of Leeds, Leeds, UK
Abstract
This article reflects critically on the scope of educational jury directions currently utilised in
sexual offence cases in England and Wales and argues for their extension to circumstances
specifically arising in cases of so-called ‘domestic’ or intimate partner rape. This position is
defended as a necessary step to promote more accurate credibility assessment of claims of
sexual violence and the prospects of just trial outcomes for survivors in this subcategory of
rape cases.
Keywords
credibility, domestic abuse, jury directions, misconceptions, rape
Introduction
In England and Wales—as in other common law jurisdictions—jurors are generally expected to make
credibility assessments relying on their ‘common-sense’ knowledge and understanding of the world and
of human behaviour. As Friedland observes, ‘when jurors exercise their common sense in evaluating a
witness’s testimony a full and fair credibility determination is presumed to follow’ (Friedland, 1989).
While this broad stance is maintained, the extent to which common-sense knowledge provides an
adequate foundation for credibility assessment in sexual offence cases has, nonetheless, been notably
and exceptionally called into question. In the landmark case of RvD,
1
the Court of Appeal significantly
accepted that it may be necessary for trial judges presiding in sexual offence cases to give appropriate
directions to counter a risk of jurors applying stereotypes and misleading generalisations about beha-
viour and responses to non-consensual sexual conduct when considering a complainant’s testimony.
Subsequent case law has supported this position and a range of illustrative ‘educative’ jury directions
that might be utilised by trial judges are currently set out in the latest edition of the Crown Court
Corresponding author:
Louise Ellison, Professor of Law, University of Leeds, Leeds, LS2 9JT, UK.
E-mail: l.e.ellison@leeds.ac.uk
1. [2008] EWCA Crim 2557.
The International Journalof
Evidence & Proof
2019, Vol. 23(3) 263–281
ªThe Author(s) 2018
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DOI: 10.1177/1365712718807225
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Compendium (Maddison et al., 2017). These guiding statements importantly address a range of false
beliefs and attitudinal biases jurors may hold when they enter into deliberations in rape cases. Notably,
however, they offer minimal assistance currently on how jurors may appropriately approach evidence in
trials concerned with allegations made against a current or former intimate partner.
2
Existing guidance is
specifically confined to a single statement that a jury might be usefully warned against inferring—in
relation to the substantive components of the offence—either the presence of consent or reasonable
belief in consent from the mere fact that a complainant and defendant had a previous consensual sexual
relationship.
3
This article sets out to problematise this limited approach and accordingly takes issue with the current
scope of educational guidance utilised in sexual offence cases in England and Wales. It does so on the
broad premise that the distinctive dynamics and circumstances of intimate partner rape are not widely
understood phenomena. According ly, jurors’ common-sense credi bility assessments run the risk of
being (mis)informed by false assumptions regarding common complainant responses in this subcategory
of rape cases. Tailored educational efforts that provide proper context for complainant behaviours
commonly exhibited in cases of intimate partner rape are thus necessitated, this article argues, to assist
jurors in their deliberative task and ultimately to promote just trial outcomes. Judicial directions are
additionally defended as the appropriate vehicle to serve this educative purpose.
At the outset, and by way of context, it is relevant to note that Crime Survey data for England and
Wales indicate that most rapes are committed by known assailants and within this category a significant
proportion of rapes—and possibly a majority—are perpetrated by male intimates.
4
For example, aggre-
gated data for the period March 2015 to March 2017 looking at female victims of rape (or assault by
penetration) found that the offender was a partner or ex-partner in 45 per cent of cases; someone known
to the victim other than a partner or family member in 38 per cent of cases and a stranger in 13 per cent.
5
The equivalent information is not available for male victims for comparison as the survey yielded
insufficient data to provide robust resu lts. Survey findings from other jurisdict ions notably paint a
similar picture (Black et al., 2011: 19, 39–40; Cox, 2015; see also Tjaden and Thoennes, 2000a). It is
against this backdrop, then, that the introduction of educational jury directions in sexual offence cases in
England and Wales and the stereotypical reasoning they are designed to refute fall to be considered and
critiqued.
Contesting common sense: Jury education in sexual offence cases
To return to the case of RvD,
6
in brief, the appellant was convicted on six counts of raping a woman
referred to only as D with whom he had cohabited for several years. The last assault was a particularly
2. ‘Intimate partner’ is used throughout to refer to all partner and ex-partner relationships, not just where a couple are married or in
a civil partnership, but also including co-habiting partners and those considered in a romantic/sexual relationship.
3. In England and Wales, the offence of rape is contained in the Sexual Offences Act 2003. Section 1 provides (1) A person (A)
commits an offence if—(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,(b) B does
not consent to the penetration, and(c) A does not reasonably believe that B consents.(2) Whether a belief is reasonable is to be
determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
4. It is widely accepted that surveys are likely to under estimate the extent of partner rape due to the unwillingness of survivors to
disclose their experiences and because women may not label their experiences of sexual coercion ‘rape’ even where relevant
legal criteria are met. See Logan et al. (2015).
5. The remainder reported that the offender was a family member. One significant limitation of CSEW data is that relationship
status is only recorded for the most recent experience of sexual assault since the age of 16 (Office for National Statistics, 2017).
These findings are broadly consistent with previous studies conducted in England and Wales. For example, the 2000 British
Crime Survey found that women were more likely to be sexually attacked by men they know in some way, most often partners
(32 per cent) or acquaintances (22 per cent). Current partners (at the time of the attack) were responsible for 45 per cent of rapes
according to the survey (Myhill and Allen, 2002). In a study that tracked 500 cases, Harris and Grace (1999) found that rapes
committed by acquaintances or intimates accounted for 45 per cent and 43 per cent respectively.
6. [2008] EWCA Crim 2557.
264 The International Journal of Evidence & Proof 23(3)

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