The Law Commission has today [17 December 2021] launched a project to examine how evidence is used in sexual offense prosecutions and to counter misconceptions about sexual harm (“rape myths”).
The Law Commission will review the law, guidelines and practices relating to the adjudication process in prosecutions for sexual offenses – including rape – and examine the need for reform. The project, which stems from the government’s 2021 rape review, aims to increase understanding of consent and sexual harms and improve the treatment of victims, while ensuring that defendants receive a fair trial. In the project, the Commission:
- Consider whether reform of provisions restricting the use of evidence of complainants’ sexual history is needed
- Review the rules relating to the use of the complainant’s medical and counseling files during a trial
- Examine how the law and guidelines can challenge jurors’ misconceptions about sexual harm (“rape myths”) regarding the credibility, behavior and experience of complainants and defendants
- Examine the availability of special measures – other modalities of testimony – to protect complainants during the trial
Professor Penney Lewis, Legal Commissioner for Criminal Law, said:
“Victims of sexual offenses may be dissuaded from reporting the offense or supporting a prosecution if they are concerned about going to court.
“Our project will examine how to improve the trial process to combat ‘rape myths’, admit only relevant evidence and better protect plaintiffs, while ensuring a fair trial for defendants.
Justice Minister Victoria Atkins said:
“It is vital that victims of rape and sexual violence have confidence in the justice system and are treated with the utmost fairness in the courts.
“This important review will take a close look at how to improve the trial process – ensuring that only relevant evidence is used and that damaging misconceptions about these crimes are relegated to the past.
“We are grateful to the Law Commission for carrying out this work, which builds on the government’s action plan to transform the response to rape and increase the volume of cases passing through the system. ”
The government asked the Law Commission to carry out this project, following clear evidence in the government’s “Rape Review”, published in June 2021, that the number of rape prosecutions has declined since 2016/2017 despite the keeps the prevalence of sex crimes stable. This has led to public concern and campaigns for legal change to turn the tide and better protect plaintiffs.
This project aims to increase protections against violence and abuse against women and girls, in collaboration with other Law Commission projects, including:
- recent recommendations to extend the offenses of incitement to hatred to incitement to hatred on the basis of sex or gender (to combat extremist misogynist “incel” ideology).
- recommendations to protect against cyber flashes and rape threats.
- Our current project on intimate image abuse: taking, creating and sharing intimate images without consent.
Scope of the project
The Law Commission project will focus, among other things, on the following:
Misconceptions: This includes misconceptions about why complainants delay reporting sexual assault and other post-assault behaviors and the relevance of lack of resistance or injury. The Commission will examine ways to counter misconceptions, including the judge’s instructions to the jury, whether the prosecution should be allowed to rely on expert evidence to dispel “rape myths” and other means. improve the training of jurors.
Use of evidence: For evidence of the complainant’s sexual history, the Law Commission will review the current provision which allows the admission of such evidence in limited circumstances to ensure that only relevant evidence is admissible at trial.
For the use of the complainant’s medical and advisory files, the Commission will examine whether the test for disclosing this information should be more stringent and the risks that a jury will give too much weight to this information, drawing a conclusion based on a false idea.
Special measures: Special measures are adaptations of ordinary court proceedings in order to maximize the quality of a witness’s testimony. In sexual assault and rape cases, they protect complainants by facilitating their testimony. This may include testifying behind a screen or by video link or testifying in private without the public.
As part of the project, the Commission will examine whether the provisions relating to special measures need to be reformed to prevent the quality of the complainant’s testimony from being diminished by the experience of that testimony.
The next step is for the Commission to publish a brief backgrounder on the issues and the need for reform. It will be followed by a consultation document containing provisional reform proposals in summer 2022.
At the end of the consultation period, a final report with recommendations for reform will be published in mid-2023.