The practicalities of English and Welsh rape trials: Observations and avenues for improvement
| Author | Olivia Smith |
| Published date | 01 July 2018 |
| Date | 01 July 2018 |
| DOI | http://doi.org/10.1177/1748895817702508 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895817702508
Criminology & Criminal Justice
2018, Vol. 18(3) 332 –348
© The Author(s) 2017
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DOI: 10.1177/1748895817702508
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The practicalities of English
and Welsh rape trials:
Observations and avenues
for improvement
Olivia Smith
Anglia Ruskin University, UK
Abstract
English and Welsh rape trials have long been recognized as problematic, with research highlighting
the prevalence of rape myths, sexual history evidence and manipulative questioning at trial.
Despite this extensive literature, little attention has been paid to the more practical elements
of rape trials, but the limited evidence that does exist suggests these may significantly impact
survivors. This article therefore draws upon 13 months of court observations to examine how
seemingly mundane aspects of rape trials can present substantial barriers to participation. It will
argue that ‘special measures’ can cause delays, some witness facilities are inadequate and that the
public gallery is frequently a site of intimidation. Ultimately, the research highlights simple changes
that could increase opportunities for survivor justice; for example ensuring rape survivors use
judicial entrances to court.
Keywords
Courts, delays, rape, special measures, trials, victim/survivors
Introduction
The criminal justice system in England and Wales has been long criticized for its approach
to sexual violence; with research highlighting inadequate responses to rape by the police
and courts (Brown et al., 2010). Predominantly, this has related to the pervasive use of
stereotypes that trivialize or ‘justify’ rape and undermine survivors (Ellison and Munro,
Corresponding author:
Olivia Smith, Senior Lecturer in Criminology, Anglia Ruskin University, Helmore 213, East Road, Cambridge,
CB1 1PT, UK.
Email: Olivia.Smith@anglia.ac.uk
702508CRJ0010.1177/1748895817702508Criminology & Criminal JusticeSmith
research-article2017
Article
Smith 333
2013; Temkin and Krahé, 2008); as well as reliance on irrelevant evidence about the
survivors’ sexual history (Kelly et al., 2006). Similarly, the literature notes that attrition
in rape is higher than other crimes, making the search for a rape conviction akin to the
search for the Holy Grail (Westmarland, 2015). A conviction is not enough to achieve
survivor justice, however, as Sanders and Jones (2007) argue there is potential for sec-
ondary victimization at trial regardless of outcome, often as a result of manipulative
cross-examination techniques.1
Notably, though, relatively little has been discussed about the practicalities of trial and
how they could represent a barrier to survivor justice. In one of the rare discussions about
trial practicalities, Payne (2009) found that survivors were highly anxious before and dur-
ing their attendance at court, especially when there were delays. These concerns may
partly explain why ‘fear of going to court’ is the most common reason for survivors with-
drawing support for the prosecution, a key aspect of attrition (Lovett et al., 2007). As will
be argued later, such practical considerations are not extraneous to survivor justice, but
rather are central to enabling the meaningful participation often cited as part of survivors’
justice interests (see Daly, 2016). This article will therefore examine the practical ele-
ments of rape trials and argue that while there are delays, inadequate facilities and intimi-
dation in the public gallery; there are also simple solutions to many of these difficulties.
Policy Affecting Trial Practicalities
Part of the attempt to reduce trauma among vulnerable and intimidated witnesses, such
as rape survivors, was the creation of a Code of Practice for Victims of Crime (Ministry
of Justice, 2015) and the introduction of ‘special measures’. The latest Code of Practice
set out the services that survivors of all crimes are entitled to receive. These include
information leaflets, a court familiarization visit and being able to wait separately from
the accused and their family (Ministry of Justice, 2015). It is unclear to what extent these
promises are fulfilled, but previous iterations of the Code were criticized as having
patchy implementation (Burton et al., 2007; Payne, 2009) and the Victims’ Commissioner
Office (2017) has highlighted inaction around the Code’s promise to give victims a per-
sonal statement. While positive on paper, then, it is difficult to ensure that the Code
becomes practice.
The most widely discussed policy affecting trial practicalities is that of special meas-
ures for vulnerable and intimidated witnesses, set out in the Youth Justice and Criminal
Evidence Act (YJCEA) 1999. Internationally, policy to encourage vulnerable and intimi-
dated witnesses being heard at trial has increased since the 1990s, when rhetoric about
‘survivor-centred’ criminal justice systems became mainstream and converged with
emerging human rights discourses (Doak, 2005). In England and Wales, special meas-
ures were introduced in the YJCEA 1999 to improve evidence-giving for witnesses who
are vulnerable or intimidated.2 Although not exclusive to rape or sexual assault, the
measures are automatically available to complainants in such cases because of the intim-
idating nature of these crimes (YJCEA 1999). The measures include the ability to remove
formal legal dress, empty the public gallery, give evidence using a screen or video link,
have an intermediary,3 use pre-recorded police interviews as evidence-in-chief and pre-
record cross-examination (YJCEA 1999).
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