Views about the prevalence of true, false or otherwise unreliable complaints of rape and other forms of sexual victimisation are polarised. According to some, only 1 in 10 rapes are reported to the police and a mere 2% of complaints can reliably be categorised as false, the latter in the teeth of the views of front line investigators. Conversely, more than 50% of reports of sexual assault made to the police do not result in charge and juries, doubtless influenced by what they read in the press about proven false complaints and the cynical machinations of false complainants, acquit in about 50% of contested cases.
Against this backdrop, a book which highlights the realities is long overdue. Burnett’s multi-authored volume satisfies this need more than adequately and with a sensible adherence to the desirability of a balanced and intelligent approach which acknowledges the needs of victims. Whilst something of a mixed bag as to their penetrability and value, the 21 chapters are divided into five parts, broadly categorised as the reality of wrongful allegations, the terrain which gives rise to false allegations, their causes, errors in the criminal justice system rendering miscarriages of justice more likely, and strategies which might reduce their incidence.
Wrongful complaints may be due to the mendacity of the complainant. But many are based on honestly held beliefs caused by faulty memory, whether implanted through misleading thought processes or suggestions from third parties which take hold in troubled minds. The testimony of honest but mistaken complainants may therefore be convincing and verdicts reached on the outcome of a ‘beauty parade’ involving a choice between the superficial credibility of what are frequently only two witnesses – accuser and accused. For fact finders, knowledge of memory processes and what might lead to this being erroneous is, therefore, crucial. Judicial directions such as ‘You have seen and heard the witnesses, make of their evidence what you will’, without guidance relating to the fallibilities of human memory and the unreliability of witness demeanour as a pointer to truth do little to enhance a jury’s understanding of how honest but mistaken complainants can describe events which did not occur.
These issues are explored in the book, which emphasises both the need for judges to be educated in the intricacies of the human mind and for juries – the fact finders – to be directed accordingly.
Some chapter authors recommend the desirability of the re-introduction of a modified corroboration warning, routinely given through directions by a few enlightened judges – along the lines of ‘the experience of the courts has shown that some complainants of sexual assault provide accounts which, whilst honestly provided, have been shown to be fundamentally wrong – and for a number of reasons which may be difficult for the layman to understand. I do not suggest that this has happened in this case but it is a phenomenon of which you should be aware when you consider the competing claims of the complainant and the defendant’. They argue that such a warning would reduce the risk of unjust convictions and act as an antidote to ‘myth-busting’ directions designed to cause juries to be wary of the danger of paying excessive regard to complainants’ behaviour which is superficially inconsistent with a truthful account.
The book thus sets out the risk to a balanced and open-minded mindset of prejudicial idées fixes based on assumptions that superficially plausible complainants do not get it wrong. It is unfortunate that those who need to learn the book’s lessons will comprise its most unlikely readership. But it should, nonetheless, become required study for all those whose task it is to assess the truthfulness and reliability of allegations of sexual assault – police investigators, prosecution lawyers and trial judges.
Reviewer Anthony Heaton-Armstrong, one of four joint editors of Witness Testimony in Sexual Cases, Oxford University Press (2016)