In 2006, social activist Tarana Burke created #MeToo in order to raise awareness of sexual abuse amongst minority ethnic women, after being unable to say those words to a teenager disclosing sexual assault. Over ten years later in October 2017, a series of allegations against Hollywood producer Harvey Weinstein were suddenly taken seriously and led to revelations about several other high-profile men in entertainment and politics. What followed was an outpouring of women sharing their experiences, from everyday intrusions to rape and childhood sexual abuse, often under the Me Too hashtag. In a rise of conflicted and multiplicitous feelings, women created a sense of collective voice and the news headlines were filled with unprecedented recognition of the prevalence of sexual harassment, assault, and abuse.
It is still unclear what real impact this will have, but some right-wing British papers have responded with familiar questions about why women did not speak sooner, whether the men are victims of a âwitch huntâ, and whether allegations can be âtrueâ without a criminal conviction (Vine, 2017). This focus on criminal courts as the sole designator of truth hints at a wider assumption that womenâs allegations of sexual harassment and abuse are not usually credible, even when several people come forward. As Gilmore (2017) noted, we are therefore in a time of unprecedented visibility of sexual harassment and abuse, but also ongoing disbelief and trivialisation. The focus on convictions also demonstrates the role of the courts in wider societal responses to sexual violence and misconduct: If the courts take rape seriously, society follows. The problem, of course, is that several decades of research show the courts do not take rape seriously, and this book will examine how womenâs lived experiences are dismissed, silenced, and ridiculed in English and Welsh courts.
Sue Lees (1997) wrote Carnal Knowledge: Rape on Trial on this issue 20 years ago, using court observations to highlight the inadequacies of trials. Two decades on, this book draws on 13 months of court observations to examine rape trials in England and Wales once again. The intervening years have seen a rich tradition of research and activism develop around violence against women, and these have led to many attempts at improving criminal justice system responses (Stern, 2010). Despite this, the last 20 years have also featured high-profile cases that show these attempts at change have not been fully effective. For example, Frances Andrade made headlines in February 2013 when she committed suicide just days after being cross-examined in the trial of her abusers, Michael and Kay Brewer (Walker, 2013). As a case that ended in conviction, the Brewer trial could technically be considered a success and so highlights the dangers of assuming that justice equates simply to convicting perpetrators (see Herman, 2010). Frances Andrade was not alone in her response to trial: Her death was followed by Tracy Shelveyâs in the same year and mirrored the Scottish suicide of Lindsay Armstrong in 2002. Meanwhile, other survivors such as Megan Clark have spoken about the impact of traumatic court processes despite trials ending in conviction1 (Weaver, 2017).
It is injustices such as these that led Liz Truss, the Justice Secretary, to announce that rape survivors would be able to pre-record their cross-examination from September 2017, similarly to how evidence-in-chief has been pre-recorded for over a decade (Summers, 2017). The pilot scheme for this pre-recorded cross-examination suggested a marked improvement in trial efficiency , case management, and relevant cross-examination2 (Baverstock, 2016). Such findings are supported by similar evaluations from Southern Australia and Scotland, where pre-recorded cross-examination has been used since 1992 and 2004 respectively (Henderson, 2013). Despite this, Baverstock (2016) noted that difficulties remained in relation to technical faults with video link technology, delays in cases coming to court, and inadequate witness facilities. Further, while the pilot scheme focused on children and adults with significant learning disabilities, legal commentators have resisted the extension of the scheme to all adult rape survivors (Pearson, 2017). This may be what led to immediate âclarificationâ from the Lord Chief Justice that pre-recorded cross-examination would be rolled out nationally for children and vulnerable adults, but only piloted in three courts for intimidated adults (Rudgard, 2017). Indeed, as I argue throughout this book, the scheme represents an improvement on court responses to rape, but cannot become the panacea for the respectful questioning being promised. This is because pre-recorded questioning does not address the underlying factors that act as cultural scaffolding for intrusive and irrelevant questioning.
The same is true for the plethora of other policies aimed at improving court responses to rape since Lees (1997) first revealed the intimidating practices at trial. This book will demonstrate that while there have been improvements in the criminal justice systemâs treatment of survivors, many of the fundamental problems stubbornly remain. It is for this reason that the search for rape reform has been likened to a Sisyphean struggle, with every leap forward seemingly accompanied by several steps back (McGlynn , 2010). In order to make policy reform more effective, then, it is now important to explore the ways in which the underlying contexts of the criminal justice system contribute to ongoing problems experienced by rape survivors. This introduction will set the scene of rape reform, but will first outline the terminology being used.
1.1 Terminology and Defining Rape
This book is focused mainly on survivors aged 16 or over at the time of the offence. Clearly, it is important to also examine responses to childhood sexual abuse, particularly in light of Operation Yewtree, the criticisms of the Oxford trafficking trial (see Tickle, 2013), and the Independent Inquiries into Child Sexual Abuse in Scotland, England, and Wales. Despite this, it would be inappropriate to apply data from adult rape trials because of the different laws and contexts involved. For a deeper discussion of responses to child sexual offences, I therefore recommend Marchant (2016).
The book will use the term âsurvivorâ to refer to people who have experienced sexual violence. While the criminal justice system and public discourse tend to use âvictimâ because this is the conventional term for someone against whom a crime has been committed, feminist researchers moved to using the term âsurvivorâ over the last 30 years (Papendick & Bohner, 2017). This is because the term âvictimâ can evoke notions of disempowerment and passivity that belie the resilience and strength demonstrated after rape (Papendick & Bohner, 2017). It is acknowledged that âsurvivorâ can also be problematic because of the implication that survivors no longer struggle with what happened (Horvath & Brown, 2009); however, I argue that this does not have to be true. To be a survivor is not to ignore the ongoing tensions between trauma and recovery, but rather to recognise that these tensions are often faced using actively chosen survival strategies.
It is also worth noting that criminal justice professionals at court refer to survivors as complainants, but this does not reflect the vulnerable position in which survivors are situated. Ellison (2007) has argued that the term âcomplainantâ ignores the potential for revictimisation within the justice system, and Renton (2013) has highlighted that trials can be experienced as a âsecond rapeâ. My chosen terminology therefore reflects the survival of not only rape, but also the trial process. While legal professionals may feel uncomfortable about the recognition of survivors without a conviction at court, I argue that such a narrow view of validation is unreasonable given the high standard of proof required for conviction. Juries are frequently reminded that they must be certain to be sure before they convict, meaning they can believe the survivor to have experienced rape and yet still acquit the accused (see Chap. 6). It is important, then, to separate recogni...