A tough call
Juries making decisions in rape cases often have to choose between the accounts of two people about events which occurred in private with little or no supporting evidence. In R v C  UKHL 42 their Lordships commented that it is difficult to think of an activity which is more situation and person specific than sexual relations.
Juries have to make very careful judgment in particular about the complainant’s allegations and by bringing their collective knowledge and experience to the case. It would be frankly surprising if they did not come to court with preconceptions about rape, how a victim acts, the type of person that gets raped, or the type of person who rapes. However, it is vitally important that they leave these prejudices behind.
On 24 October 2008 the Court of Appeal in R v JD  EWCA Crim 2557 held that in a judge’s summing up in a rape trial the fact that the trauma of rape could cause feelings of shame and guilt that might inhibit a woman from making a complaint about rape was sufficiently well known to justify a comment to that effect. The emphasis was on maintaining a balanced summing up and explaining to a jury that experience shows that many people delay complaining about a sexual incident for a number of personal reasons.
“The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning . . We think that cases where the defendant raises the issue of delay as undermining the credibility of a complainant fall into a similar category save clearly that the need for comment is in this instance to ensure fairness to the complainant. the fact that the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape is sufficiently well-known to justify a comment to that effect” [per Latham LJ at para 11]
This has become known as a delayed complaint direction and is now routinely given.
The direction in practice
It was applied in R v Miller (Colin Anthony)  EWCA Crim 1578 where it was confirmed that courts were increasingly prepared to acknowledge the need for a direction that dealt with what could be described as stereotypical assumptions about issues such as delay in reporting allegations of sexual crime and distress. There it was held that a judge was entitled to make comments as to the way evidence was to be approached in areas where there was a danger of a jury reaching an unjustified conclusion without an appropriate warning. In that case, which involved rape of a girl under 13 by an uncle, the direction given by the judge concerning the approach to be adopted to her failure to complain of rape earlier than she had was said to be “very much longer than we would have expected but it is important to provide the context that it occupies some three pages of transcript in a summing up that extends to some 94 pages”.
It also “in terms of balance possibly descends into rather more example than was necessary” but the conviction was safe and there was no unfairness in the summing up. The new Judicial Studies Board Benchbook reinforces the role of the judge in cautioning the jury to avoid “applying stereotypical images” about alleged victims and perpetrators.
In court a complainant, even with the assistance of special measures, is required to recount the events in a sterile environment before strangers. Their demeanour in court is not necessarily indicative of the truth or otherwise of the complaint; all depends on character of person concerned. Nevertheless, it is for the jury to assess whether the complainant’s reaction is indicative of falsehood or whether they are indicative of the trauma of the event and the complainant’s vulnerability or particular personality. What juries need are the tools to make their own decision. They need assistance to assess the uncommon situations where their common sense does not help them.
Should expert evidence be called to deal with the issue of victim consistency after a traumatic event such as a sexual attack? In our view, to routinely introduce such expert evidence in a criminal trial would not assist the jury. Experts can give their opinion on whether the complainant was traumatised and how they may have reacted but would have to concede that different people react in different ways. If expert evidence were called, a victim would be required to undergo psychological testing which of itself suggests they are unreliable and ultimately could undermine a prosecution.
One can imagine that genuine victims would refuse to come to court if they thought that their psychological state would be the subject of cross examination. It is for a jury to decide whether a person is telling the truth. They do this every day using their collective experience of real life. Where experts disagree, trials are lengthened and juries require more detailed direction. Asking an expert to give an opinion on the truthfulness or otherwise of a witness also usurps the jury’s function. Added to which there is always the danger that the jury’s attention will be distracted from the real issues in the case.
No expert neurologist, psychologist or psychiatrist is called in a simple identification case. All involved rely on the Turnbull points and judicial direction. A similar approach is the ideal solution in cases of rape and sexual assault. Each direction will depend on the facts of the particular case but the jury need to be reminded to put their preconceptions aside, that experience shows that during a stressful situation different people react in a different ways, to try the case on the evidence, fairly determining whether inconsistencies suggest an account is untrue, or whether the complainant was genuinely recalling a traumatic event.
The right direction
A jury must be directed to approach a sexual allegation dispassionately putting aside any view that they may have already had and reaching their conclusions on the evidence. In relation to trauma and consistency, the advantage of judicial direction is that it avoids satellite litigation as to the accuracy of the expert and such a direction (combined with the direction on burden and standard of proof) can be adapted to the circumstances of the particular case to avoid injustice to either the complainant or the defendant. Those of us appearing in or presiding over sex crime trials have a collective experience of how these cases work. There is no harm passing this on to a jury so that they can use their experience of real life in an informed way when deciding whether they can be sure about an acutely sensitive allegation.
Felicity Gerry and Catarina Sjolin, 36 Bedford Row. Website: www.36bedfordrow.co.uk. Felicity and Catarina are the co-authors of “The Sexual Offences Handbook” published 2010.
Experience Shows directions
- A delayed complaint direction necessitates a discussion of rape trauma but focuses on the delay rather than the consistency or otherwise of the evidence.
- Experience also shows there is no standard rape, rapist or victim of rape; rape can take place in all kinds of circumstances to all kinds of people. The victim of an assault goes through a traumatic experience. It might be thought that stranger rape is more traumatic but rape by someone the victim knows can be just as traumatic. It is impossible to predict how a victim will react.
- Psychiatrists have learnt much about the effects of trauma. People in traumatic situations behave differently and lay down memories differently, often not in a chronological way and may lose track of time or the order of events. They tend not to provide a consistent account of the event every time they recall it. They may be unable to provide a detailed narrative, but be able to remember clearly perceptions (smells, feelings etc).
- Leading psychologists, Dr Amy Hardy, Ms Kerry Young and Dr Emily Holmes have recently written that it is unlikely that a genuine rape complainant will immediately make an accurate and detailed complaint as “the expectation that trauma narratives should be consistent and coherent is incompatible with well established psychological reactions to trauma. Indeed real trauma reactions have specific qualities (eg, vivid intrusions, jumbled narratives and avoidance”.