| Still Getting Away with Rape 16 March 2000 | ||
| Programme transcript
It has become known as date rape. Tell that to Judy who was bitten, struck and degraded or Emma - held prisoner for four hours and raped twice. On Dispatches the men who are still getting away with rape. Defence: You had the hots for him didn't you? Judy talking to Dispatches: We've just gone into the new millennium and the courts are still in the Dark Ages as far as rape's concerned. Court reconstruction Kate talking to Dispatches: They were blackening my character. And that was like being raped all over again. Court reconstruction Barrister: And you would enjoy sex in the open air? That is not suggesting that you are in any way perverted. Sam talking to Dispatches: It let me down. And it lets hundreds of women down. It's a system for men not for women. Court reconstruction Jury foreman: Not guilty. Last year more than 7,000 women in England and Wales told the police they'd been raped, mainly by men they knew. The numbers are going up every year. But the conviction rate is going down. For every hundred reports of rape only six men are convicted. Dispatches has been investigating the courts and talking to the victims to find out why. One night Kate met three men - in town for the weekend. When the bar closed the men invited them back to the pub where they were staying. In the early hours the girls called a taxi. One of the men suggested Kate wait in a room upstairs so she could see the car arrive. Kate: I said to him, 'If I leave the room with you, nothing's going to happen, I'll kiss you and that's all.' And he said, 'That's all I want.' But the other room turned out to be a bedroom. As Kate stood watching for the taxi the man took his shirt off. When she sat on the bed he began to pull her clothes off. Kate was 23 and a virgin. Kate ran crying into the bathroom. Her friends found her there and she told them she'd been raped. Their first reaction was to call the police, but Kate stopped them. But it was several hours before the police could take a statement - first Kate was taken to hospital where she needed treatment. The man was arrested and charged with Rape. Kate was sure he'd be convicted - she was a virgin, she'd been physically injured and she'd reported the rape straight away. Kate: No, not really. Defence: Would you have drunk that sort of amount on other occasions? Kate: Yeah. Defence: You were quite happy to go and snog him? Kate: Yeah Kate talking to Dispatches: A girl should be able to even go into a room with a man, it doesn't mean she wants to have sex with him. There are men out there who do understand that no means no. Court reconstruction Kate: I found him attractive. I didn't want to have sex with him though. Defence: But you sat with him on the bed. Kate: There was nowhere else to sit in the room. The defence then suggested it couldn't have been rape because Kate didn't fight back. Kate: Yeah. Defence: They were not damaged at all, were they during this incident? Kate: No. Defence: Because I suggest you were quite happy with what was going on. Kate: I wasn't happy, I was telling him to stop. Kate talking to Dispatches: I always thought, well, if it happens to me I'll scream, I'll shout, I'll punch, I'll scratch. But, in actual fact, you don't. You're in that much shock. I just froze, went numb. The defendant in rape cases nearly always says the woman agreed to have sex with him. So the defence barrister must suggest a motive for her to cry rape. Kate: I saw the blood on the covers. Defence: Yes, you must have been acutely embarrassed by that, must you not? Kate: I was more shocked. He'd just raped me. Kate talking to Dispatches: I felt angry that he made out that I was like - like a stupid little girl who'd got embarrassed. It was like, okay, you lost blood and that was all really. But even days later I was still losing blood. The defence argued Kate's injuries were not severe enough to prove rape. And the jury took less than 2 hours to reach a verdict. Foreman: Not guilty. The defendant cheered from the dock and then had some parting words for Kate. Professor Jennifer Temkin of the University of Sussex is an expert on how the law deals with rape. Recently she interviewed 10 very senior barristers. She promised not to identify them so they were very honest. They disclosed their usual defence strategy. In 1993, Dispatches monitored all rape trials at the Old Bailey in London over a three- month period. Most of the men were charged with raping women they knew. And two out of three of those men were acquitted. Seven years on we've been watching the courts again. Over a two-week period earlier this year we monitored every rape trial in England and Wales - about 30. This time in every case there was some level of acquaintance between the man and woman - however brief. There wasn't a single attack by a stranger. Defence: There was not much point in you being in the house together unless sex was on the cards. If the defence want to ask more direct questions about a woman's sexual experience they need the permission of the Judge. Judges like Mrs Justice Rafferty believe such questions are no longer being asked so often. Our court monitoring revealed direct questions about sexual history were allowed in eight out of 15 cases. That is only slightly fewer than we found in 1993. Defence 2: It would be rare that you would make a sound during sexual intercourse? Judge: Sexual intercourse, with whom? Defence: Your Honour. I am going to put both with Mr (bleep) and with Mr (bleep). Professor Jennifer Temkin talking to Dispatches: One barrister, a leading QC, said that he would invariably, without fail, when defending apply to the judge to admit the woman's sexual history because, as he put it, if she can be depicted as a slut the jury are unlikely to convict. So he would do it as a matter of course. We found the defence had plenty of other ways of smearing the woman's character. Often the questions seemed totally unconnected to the rape. Defence 2: Is it not the sad truth that visitors to your house have found you in such a state of drink that you have been unable to stand? Dispatches also carried out a survey of 120 women who said they'd been raped in the last five years. A quarter of the cases went to trial and confirmed our court monitoring - the women were routinely attacked as promiscuous or unreliable. And some women alerted us to a new tactic which had caught them completely off guard. Dispatches: What was your reaction when you heard? Sam: Outraged. They're very private, personal things your medical records. It's like reading your personal diary and they've no right to that. Sam knew her attacker from work. He often came round for a drink and a chat. But one evening his attitude suddenly changed. He rang Sam repeatedly to apologise until she relented. He turned up at her house with a litre bottle of rum. Sam caught him topping up her drink when he thought she wasn't looking. When the case came to court last summer the defence opened in the usual way - implying Sam had encouraged the defendant. Sam: He does everybody. Defence: Well then, the answer is 'Yes'. Sam: But not how you're saying it. Defence: That is a Yes? Sam: Not how you're saying it. You're turning it out to be something sexual. Sam talking to Dispatches: His barrister was just so intimidating. He was like this big vulture. And this vulture was going to eat everybody up. I went in there like a lamb to the slaughter. Court reconstruction Sam: But you are making me out to be some kind of tart, and I'm not. Sam talking to Dispatches: A single woman alone in a house, with a man, having a drink, they wanted to turn that into something sordid, not an everyday thing. Sam was half-expecting that line of questioning. What totally threw her was to learn - just days before the trial started - that the defence had applied to the Judge to get her medical records. Sam: Because they couldn't dish any dirt on me. Never done drugs, I've never beat my children, I've never abused a dog. So we'll get my medical records and see what we've got. Court reconstruction Sam: Yes. Defence: Certainly since 1992, and perhaps earlier? Sufficiently down in 1992 to take an overdose? Sam: Yes. Sam talking to Dispatches: He tried to make me out to be a raving loony, that I didn't know my own mind, and that hurt. Court reconstruction The jury clearly found that difficult. In the end they came to a majority decision. Foreman: Not guilty. Sam talking to Dispatches: I was devastated but I knew that he was going to get off. They just tore me to pieces in court. Sam's convinced the verdict would have been different if the prosecution had brought in a medical expert who treated her post-natal depression. Dispatches: What could that nurse have said? Sam talking to Dispatches: My depression's controlled by anti-depressants. I do everything just like a normal person, I am a normal person. Dr Gillian Mezey at St George's Hospital is a leading consultant forensic psychiatrist and a specialist on rape. Three million people in Britain take anti-depressants - that doesn't make them unreliable witnesses. It would be the job of the prosecution to bring in such evidence to prove their witness is reliable. Helen Grindrod is a very senior barrister who's prosecuted in many rape cases. Dispatches: Is it happening at all? Helen Grindrod QC: I don't think I've known it. We've found other rape cases where the prosecution allowed their main witness to be totally discredited. Judy was attacked by a neighbour - it was violent and degrading and the defence said it wasn't rape. Judy: There was so much forensic evidence. The photographs of the injuries, the bite marks and it's 'Not guilty.' A dark alleyway - late at night - the kind of place a violent rapist would strike leaving his victim half dead. That may be the common perception of rape. It's not the reality. Over 90% of women like Judy, know their attacker. But the Dispatches survey of over 100 women proved that 'date rape' is a totally inaccurate term. Only a handful of women were raped on a date. Judy's had to move house because she was attacked by a neighbour. Her old house was right on the main street of the town. One night she was having a final cigarette before going to bed. Eventually he persuaded Judy to allow him in. As soon as he walked through the door she realised he was very drunk. They chatted briefly in the living room then he suddenly grabbed her. After the man had left Judy ran sobbing into the street. Two passers saw her covered in blood and urine. They called the police. Dispatches: What were you seeing in the mirror? Judy: I had his teeth marks in my face and on my chest and bruises and I had blood round my mouth. Judy was certain she had a strong case - her injuries and the horrific circumstances would surely persuade a jury this was rape. But she had no idea the defence would dig back almost 10 years into her childhood. Judy: No. Defence: Right. Have you ever - it might sound a funny question I just don't know - have you ever hurt yourself for attention? Judy: Not for attention, no. Judy talking to Dispatches: He was discrediting me in the way that I was an attention seeker, that I was totally unreliable and unbelievable. Once again the defence got permission to bring in her medical records. Those revealed her deeply disturbed behaviour as a child. Judy: No. Defence: Do you remember at that age you used to cut yourself? Judy: Yeah. Judy talking to Dispatches: It shouldn't be allowed. The trial should be about the evidence, the facts, what happened on the night. Past has nothing to do with it. As a teenager Judy spent a few months in care - the defence also had those records. Judy: Yes. Defence: Right, and one of the times, the social worker asked you why you did those things and you have said that you feel better, a bit better about yourself for a while when you've done it. Do you accept that's the sort of explanation you have given to social workers in the past? Judy: I don't know because you're talking seven years ago, maybe more, and I can't recall. Judy talking to Dispatches: What I'd do, in my head I'd say, 'Fuck you, one, two, three, take a deep breath', and then I'd answer him, you know, being polite. And that got me through it. Over half the questions were about her past. Indeed the defence tried to ignore totally one of the most extraordinary facts of the case on trial. Judge: Well, you have not dealt with the question of urination. Defence: Ah. When you - towards the end of matters on the sofa and had finished intercourse, what I suggest happened is this. The defendant at first said that he wanted to use the lavatory, needed to have a pee, or something along those lines, and you said, do it on me, or you can do it on me if you like? Judy: No, I did not say anything of the sort. Defence: Earlier on, when you were having intercourse on the sofa you asked him, didn't you, to strike you? Judy: No I did not. I asked him to leave me and go home. Judy talking to Dispatches: And for someone to say that to me, after what he did to me, really, really made me sick. Once again the prosecution did nothing to counter the defence suggestion that Judy was mentally disturbed and so couldn't be believed. Dispatches: What's your reaction to the fact that certainly in the cases we've come across no expert evidence has been brought in by the prosecution? Dr Gillian Mezey: Well it really makes me wonder what the prosecution are doing. If they know that their witness is going to be destroyed in the stand by having her credibility undermined simply through a history of psychiatric illness, then it would really be absolutely crucial for them to be bringing in expert evidence that could at least rebut that. The defendant didn't deny what happened but said it was all at Judy's request. It only took the jury an hour to decide who they believed. Not guilty. Judy: How can someone do that and get away with it? It's the victim on trial. It's not - do you think he's capable of rape? It's - is she capable of being raped? Over the two-week period that we monitored all the rape trials in England and Wales we found about a third of them were cases where the man and woman had been involved in a long term relationship. There was a clear pattern. The man became increasingly violent - the woman finally left him or was about to do so. At that point domestic violence escalated into a charge of rape. Like many battered women Emma called the police countless times but never pressed charges so her partner had no convictions. But after seven years Emma had finally decided she and their two children were better off without him. But he wouldn't let her go. Reconstruction Emma: I had a chair, an armchair, and he just put my face in the cushion. And he had my arm bent up my back, and he was pulling my hair with this other hand right back. And sometimes he was slapping me as well. And he just kept saying, 'Tell me how much this hurts, tell me how much it's hurting you, this.' I was saying it, because I just wanted it to be over before the children got up. You know, I just kept thinking, I didn't want to make a noise ... And everywhere was hurting, I just didn't know where I was hurting most. Honestly, I felt like - I just felt like somebody had a knife in me. One again the defence brought up events years before the rape charge - like the time Emma discovered her partner was being unfaithful. Emma: I threw the plants at the wall and I tore the border off in the dining room. Defence: You tore wallpaper off and threw soil and ground it into the carpets and that kind of thing? Emma: I took his rugby boots and put them in the bin? Emma talking to Dispatches: Another women had been in my bed and I'd been gone days and I'd just given birth to a baby. I was angry and Yeah, I smashed the room up ...And I don't really think it was relevant at all ... the real truth of the matter was he's the one with the temper, not me. And I couldn't say that. I couldn't say that. In fact his behaviour - 7 years of beating her up - was barely mentioned. The prosecution told her it would prejudice the jury. So they only referred to it in passing. Emma: Yes, very. Emma talking to Dispatches: There's no way that you can win in them circumstances. If I would have been allowed to give all what I feel was evidence, I could have done but I wasn't allowed too. I think it's just so unfair. Court reconstruction Since the jury knew no different their verdict was unsurprising. It's the Crown Prosecution Service who decide on the evidence and hire the barrister. They need the permission of the Judge to bring in a history of domestic violence but they rarely ask. Sandie Hebblethwaite Crown Prosecution Service Chief Crown Prosecutor for Surrey: They may be linked, but we have to be careful that the evidence that goes before the court is probative of the guilt in relation to the rape, and not prejudicial in terms of ... we cannot say to a jury, this man must be guilty of rape because he's been guilty of domestic violence. But Helen Grindrod feels once again the prosecution could be trying harder to bring in relevant evidence. The victims feel it's all part of the same problem - the prosecution are not fighting hard enough to get a conviction. Kate: I thought mine was quite weak really. Never objected at all. Never. Emma: It was the CPS's case and I was told I was having a lady barrister and then I got a man on the morning and he went through the statement as quickly as he could. Judy: And then at the last minute we had another barrister so I don't think that was very professional really. Helen Grindrod QC: It's not just a question of reading the brief, standing up, presenting the case to the, to - to the jury in your opening speech, calling the complainant and sitting curling up while she gets destroyed in cross- examination, there's more you can do than that. Dispatches: And they're not doing that at the moment? Helen Grindrod QC: Well, if your research shows that, then that is to be deplored. So why aren't the prosecution doing more? Most top-level barristers - like Anne Mallalieu - only defend in rape cases. Rarely is she up against an equally qualified prosecution barrister. Mrs Justice Rafferty: The fact of the matter is that defence counsel, in serious sexual offences, tend to be more experienced, and that will have its effect. It doesn't matter how good somebody is, there comes a cut-off point when he or she, appearing for the prosecution, is going to be out-gunned and outclassed by the more seasoned performer. Dispatches: Why is that happening? Mrs Justice Rafferty: I'm afraid if you don't pay rateably, you're going to get this effect. Last month the government finally admitted prosecution barristers are paid substantially less than defence counsel and promised to start closing the gap. The Bar Council also told Dispatches they were 'clearly concerned that this disparity is reflected in the results of some cases'. But the Crown Prosecution Service who hire the prosecution barristers deny that. Dispatches: Why does everybody else feel they're inferior to the defence? Sandie Hebblethwaite CPS: We don't accept that. There's one radical change the victims themselves want. In America a women who's been raped is far more involved in events leading up to trial. Not only is the system very different in America - so too is the conviction rate. If a woman reports a rape in New York there are two people she will meet immediately. One is the police officer who will investigate the case. The other is the specialist prosecutor - a lawyer who only handles rape cases and who will work with the victim until she walks into court to testify. Linda Fairstein runs the Sex Crimes Unit in Manhattan. As in Britain the victim usually knows the man who raped her so her evidence in court will be the key to the conviction. Prosecutors here fight to keep the victim's medical records out of the case completely if possible. If they can't they bring in expert witnesses to explain them. Dispatches: Prosecution barristers that I've spoken to in Britain say we can do that as well but for some reason it's not happening? Linda Fairstein: It seems to me awfully easy to distance yourself from the needs of the victim and the presentation of your case when you've never met her before you walk in to the courtroom. In our survey of British women two thirds of them told us the prosecution barrister didn't even say hello before they went into court. Kate: He can consult with his barrister, he has meetings, he can prepare his case, but for me, I just go in to court as a witness. Sam: You need to know your barrister. You need to know that he's going to go in there and he's going to fight for you, because I don't care what anybody says, you are on trial. It's the lawyers working for the CPS who prepare the case so why can't they meet the woman who'll be the main witness in the trial? Dispatches: Are you coaching the women? Linda Fairstein: Absolutely not. My role as a prosecutor is to do justice. And I'm an officer of the court, I am not the victim's advocate, and I am clearly, clearly aware of that. Year on year in America more cases of rape get to court and more men are convicted. Dispatches: Our conviction rate for acquaintance rape is probably 30%. What's your reaction to that? In Britain the conviction rate has come steadily down - to the frustration of the police. Last year government research showed many cases didn't get to court because the women themselves withdraw their complaint. But the Home Office didn't know why. So we asked the women in our survey. Many, like Anne, said it was because she knew what would happen in court. She was raped by three men - one of whom she knew slightly. Liz went out to dinner with a fellow student and went back to his flat afterwards. Both women made statements and then withdrew them. The police are used to that. Liz: They told me what my options were they did warn me what I'd be up against. Anne: I just said to her I don't want to take it any further. Rachel didn't even make a statement. She was so shocked after she was raped she waited several days before reporting it to the police. A female officer wasn't interested. Police policy is to treat rape complaints far more seriously than they used to but realistically they also have one eye on the courts. Some senior barristers think one answer is to allow a wider range of sentences for different degrees of rape. There's been a great deal of discussion about a lesser crime of 'date rape'. But 85% of the women in our survey disagreed with that - even if it meant more men were convicted. Emma: I was in this house with that man - over like four hours. You know, I mean he could have murdered me and left me in here for dead, and nobody would have known. I don't think you can make comparisons, because rape is rape. And I don't think they should change it to a lesser charge. And women in our survey confirmed the terrible aftermath of being raped by someone they knew. Rachel: He's completely destroyed me, who I am, and it just makes me question everything about myself, everything. When I meet new people, when I go out - I question it all. In two weeks' time a whole series of legal changes come into force which will affect rape trials. Women should have the option of giving evidence behind a screen or on a video link. There will be stricter rules on asking questions about a woman's sexual past. And the government are also reviewing the definition of consent, which might make it harder to suggest the woman agreed to sex. But as our research has proved - seven years ago and now - those changes alone are unlikely to have much impact. It needs a far more radical change - to the very culture of the courts. For every single woman who reports rape, there are several more who never come forward. Nor will they while they see no chance of justice in the courts. Sam: It let me down, just them few words, it let me down. The law is basically on his side, he can get away with rape and he did. Kate: The court procedure, the way they're questioning, the barristers, has got to change - because otherwise no one's going to come forward and men are going to get away with it. Judy: You know, they took my whole life and they tore it apart. To get a woman to report, the system's got to be changed, they've got to feel that they've got a decent chance of a conviction. In our 1993 programme, we investigated a man who'd just been acquitted of rape for the fifth time. On each occasion, he'd either raped the woman on a first date or after offering her a lift. Seven years on - Dispatches has discovered he's been charged with rape again. back to Still Getting Away with Rape |
||