Prosecuting and Defending Rape: Perspectives From the Bar

AuthorJennifer Temkin
Date01 June 2000
Published date01 June 2000
ISSN: 0263-323X, pp. 219–48
Prosecuting and Defending Rape: Perspectives From the Bar
Jennifer Temkin*
This article discusses the findings of a qualitative study (part of a
larger study into rape and criminal justice) which involved in-depth
interviews with a sample of ten highly experienced barristers who
between them had prosecuted and defended in hundreds of rape trials.
It is concerned with the barristers’ perceptions of the problems
involved in prosecuting rape and the strategies deployed in defending
rape cases. The article discusses the ethics of advocacy in the context
of rape trials and argues that within the adversarial system there are
ethical limits which should be observed.
In the 1970s, considerable concern began to be expressed about the conduct
of rape trials and the treatment of complainants in court.
This has continued
unabated despite the legislative steps which have been taken in the last three
decades in an attempt to improve the situation.
There has, in particular, been
continuing criticism of the way barristers prosecute and defend in rape trials
and the failure of judges sufficiently to control defence excesses.
research into rape trials has not, for the most part, attempted to gauge the
attitudes and practice of barristers from barristers themselves.
This article
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1 See, for example, Report of the Advisory Group on the Law of Rape (1975; Cmnd.
6352; chair, Mrs Justice Heilbron).
2 See Sexual Offences (Amendment) Act 1976, s. 2; Criminal Justice and Public Order
Act 1994, s. 32.
3 See, for example, S. Lees, Carnal Knowledge (1996) 125–6.
4 Brown et al considered the attitudes of barristers to the use of sexual history evidence
in Scottish rape trials. See B. Brown et al., Sexual History and Sexual Character
Evidence in Scottish Rape Trials (Scottish Office Central Research Unit, 1992) 15–
16. Five barristers and five judges were interviewed in Home Office, A Question of
Evidence? Investigating and Prosecuting Rape in the 1990s (Home Office Study 196,
1999) see at 3.
*Department of Law, School of Legal Studies, Arts Building, University of
Sussex, Falmer, Brighton BN1 9QN, England
The interviews with barristers on which this article is based were mainly conducted by
Kandy Woodfield. The author is indebted to the barristers who gave up their time to be
interviewed and to the Leverhulme Trust, which sponsored this research as part of a larger
study conducted by the author into the processing of rape cases.
considers the findings of a study which looks at the modern rape trial from
the perspective of a sample of barristers with considerable experience of
defending and prosecuting in rape cases and assesses its implications for the
improvement of rape trials.
The article will present the background to the research. It will explain the
methods used and how data was analysed. It will examine the barristers’
perceptions of the problems in prosecuting rape and in bringing home rape
convictions and their approach to the task of defending alleged rapists. It will
also consider the barristers’ suggestions for improving rape trials. Finally, it
will discuss the implications of the study findings.
Criticism of the decision of the House of Lords in DPP v. Morgan
in the setting up by the government of the Advisory Committee on the Law
of Rape, chaired by Mrs Justice Heilbron.
That committee’s report, voicing
concern about the conduct of rape trials, led to the passing of the Sexual
Offences (Amendment) Act 1976 which, among other things, attempted to
place some curbs on the use of evidence about the complainant’s sexual past.
Adler’s research into the operation of this legislation queried its impact,
showing that sexual history evidence remained a strong feature of rape
Subsequently a study published by the Scottish Office painted a
devastating picture of rape trials in Scotland.
It revealed the blatant
mistreatment of victims by defence counsel and an acquiescent attitude on
the part of prosecutors and judges. Twenty victims who had appeared in
court were interviewed. The feeling of being on trial themselves was
common amongst them.
This study was instrumental in producing
legislation to control the use of sexual history evidence in Scotland.
a subsequent study, which looked into the impact of the legislation, found
that, whilst it had had some effect, its success had been limited.
The most
recent empirical research on the rape trial in England and Wales was carried
out by Sue Lees. She monitored all the rape trials at the Old Bailey over a
four-month period in 1993 and additionally analysed thirty-one transcripts of
rape trials. She also interviewed twenty-one women whose cases had gone to
This research indicated that women were still being systematically
5 [1976] A.C. 182.
6 op. cit., n. 1.
7 Z. Adler, Rape on Trial (1987).
8 G. Chambers and A. Millar, Prosecuting Sexual Assault (Scottish Office Central
Research Unit, 1986).
9 id., p. 90.
10 Law Reform (Miscellaneous Provisions) Act 1986, s. 36.
11 Brown et al., op. cit., n. 4, ch. 7.
12 Lees, op. cit., n. 3, p. xxii.
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