CARNAL KNOWLEDGE
With the exception of murder, rape is considered to be the most serious crime prosecuted by the criminal justice system in the UK and the reporting of such crimes is becoming more prevalent.
There has been a steady rise in the number of reported sexual offences since 1995 (see Home Office Criminal Statistics 1995 - 2001). Yet criminal justice systems all over the world actively perpetuate a world in which rape goes unpunished. In the UK, where the conviction rate for reported rapes in 1999 was a meagre 8 per cent (Harris and Grace 1999), and where most rapes go unreported, the true rate of conviction is clearly appallingly low. The extremely low prosecution and conviction rate causes great distress to women. Those who give evidence in court describe rape trials as being as traumatic as the rape itself and say it is they who feel they are on trial. Women continue to be cross-examined by defence barristers about their past sexual history and details of their lifestyle. This extends to the clothing worn at court. One English barrister spoke of a case in which 'the girl was basically just cross-examined because she had a miniskirt with a zip in it' (Temkin 2000b). This is almost as ridiculous as the Italian Court of Appeal who in 1999 overturned the conviction of a 45-year-old driving instructor found guilty of raping an 18-year-old pupil on the grounds that she could not be raped because she was wearing jeans (see Lees 1999a). Some of the questions posed are subtle. For example, in one English trial the complainant was asked about red shoes she was wearing at the time of the alleged rape. The defence asked: 'You would admit these shoes are not leather. They are at the cheaper end of the market.' If her shoes were cheap, the implication was that she must be cheap too. Defence barristers should not misportray the complainant's character in this way.
Between 1985 and 1997 in England and Wales there was an almost threefold increase in the number of rapes of females reported to the police, but much less increase in the number of men convicted. (In 1985 450 men were convicted of rape of females out of 1,842 reported rapes compared with 599 out of 6,281 in 1997.) Since the first edition of Carnal Knowledge was published in 1996 rape has rarely been out of the news and has received unprecedented attention and for the first time there seems to be some commitment on behalf of the government to improving the way the criminal justice system treats women who are raped. Yet little concrete improvement has resulted. On the contrary, the proportion of reported rapes resulting in conviction has continued to slide. Between 1996 and 2000 it fell from 10 per cent to a mere 7 per cent.
In Scotland, the way the law deals with rape hit an all-time low in March 2001 when Lord Abernethy, a senior judge in the Scottish High Court, ruled that a woman could not be raped unless the accused used force or threat of force. He said 'to have sexual intercourse with a woman without her consent in itself is not rape. There seems to be a common perception that lack of consent is enough for a charge of rape.' Lord Abernethy cleared Edward Watt, 23, a law student at Aberdeen University, of a charge of raping a 21-year-old fellow student who had alleged she had withheld consent. The woman, a virgin before the attack, claimed Watt had locked the door before raping her twice despite her saying 'no, stop. I don't want this' (Tweedie 2001). Lord Abernethy's interpretation of the law was debated on 26 April 2001 in the Scottish Parliament, with a motion brought by Ms Johann Lamont MSP. Describing herself as 'speechless' when she first heard the case, she said: 'When I first heard this, I felt as if we were stepping back generations in our attitudes to rape and what is even more amazing were the people in the legal professions who said Lord Abernethy was right . . . We need to look at how judges can have such powers in our legal system.' The Lord Advocate agreed to refer the controversial ruling to the Scottish High Court to decide whether or not sex without a woman's consent is or is not rape!
The main focus of this new introduction is to summarize legal developments since 1996 (specifically in the curtailing of sexual history evidence and the extension of similar fact evidence). I shall also outline an important small reform involving the abolition of the right for defendants to defend themselves and cross-examine the complainant. Before this, I shall consider what changes have occurred in the nature of rape cases (such as the elevation of rape as a war crime and the new phenomenon of drug-assisted rape), and provide some background to the stimulus for change in the government concern about rape. I shall draw on more recent research undertaken for the Channel 4 documentary Still Getting Away with Rape, shown in April 2000.
The main body of this book has not been largely altered as it was based on research undertaken in the early 1990s that is still as accurate today. It shows how the British criminal justice system is systematically allowing rapists to go free, and how more and more rapists are getting away with it. It documents the way women are encouraged to report rape, and are often intimidated by their assailants, only to be stereotyped as sexually provocative and blamed by the judiciary and press. First it examines some of the prevalent myths about rape, and looks at how rape is defined. It shows how most cases are channelled out of the legal system to reduce the numbers actually going to trial through such practices as 'no-criming' reports, downgrading the rape charges to a lesser offence of indecent assault, or actual bodily harm (ABH), by what is called 'plea-bargaining'. The complainant is, however, rarely involved in such bargaining, which is carried out by the prosecution counsel, whom she is not even allowed to meet, and some convictions are reversed or sentences reduced by the appeal court.
The last chapter, however, has been updated and expanded to include an analysis of the failure of the Labour government to reform the judiciary. This major shortcoming, as we shall also see in this introduction, means that even when reforms such as the restriction of sexual history evidence are introduced into legislation in Parliament, it does not necessarily mean that they will be effectively implemented in practice. Additionally, I put forward proposals to reform the rules of evidence.