One of the proposals in the recent Consultation Paper produced by the Office for Criminal Justice Reform was there should be the power to adduce general expert evidence in rape trials. The background to the report is the continuing concern over the low conviction rate for rape cases and it may be of some significance that the title of the report is “Convicting Rapists and Protecting Victims – Justice for Victims of Rape”. The aim of the report is to “improve the outcome of rape cases by further strengthening the existing legal framework and improving our care for victims and witnesses.” Insofar as this proposal is concerned, the aim is expressed as wanting to ensure that “ courts hear evidence from experts that will better inform juries about the realities of rape and the psychological impact of sexual offences upon victims and address certain myths and stereotypes concerning how a victim might be expected to behave.”

The point is made that currently in a criminal trial “any omission, discrepancy, error, delay in reporting, unbecoming or puzzling behaviour that the victim may exhibit before, during or after the alleged rape, will be used by the defence as a basis for questioning that person in order to make him or her appear unreliable and untruthful”. Whilst nor apparently seeking to stop such probing and testing of the evidence by the defence, it is suggested that the explanation for such behaviour may be grounded in the common psychological reactions that occur if a person has suffered a traumatic event or been in an abusive relationship and that this is relevant knowledge which should be before the jury when they are making decisions on the credibility of a witness.

The explanation which is given for the anticipated role that such evidence would play is that the expert would explain to judges and jurors alike that  “such apparently problematic features of a person’s evidence are common and should not necessarily lead to the conclusion that the victim/witness is lying or unreliable. The court would be informed of the acknowledged psychological reactions that occur after a prolonged relationship of abuse and/or after a deeply traumatic event. Such reactions can affect a victim’s ability to give a coherent, consistent account of their experiences and cause behaviour which, to an onlooker, is puzzling as it does not match the expectation of how “genuine” victims act or react.”

It may seem to some that this is a benign proposal, which may help the jury assess a witness’s credibility more fairly and that that can be no bad thing. It is pointed out that this type of evidence is commonplace in the USA. It may be that some find that a more persuasive argument than others. The difficulty with the proposal, however, as is so often the case, is how it would work in practice.
To those of us who have both prosecuted and defended in such cases, the particular difficulties arising in cases involving just the complainant and the defendant are well-known, particularly when there is drink involved. They are difficult decisions for the jury to make, perhaps made more difficult in the knowledge that a conviction will mean a lengthy custodial sentence for the defendant. Why should any proposal, which may make their task easier be rejected?

The first point is that the care and consideration, which juries give these and indeed all cases does not seem to be acknowledged. A new juror may come into a case with a pre-conceived idea of guilt or innocence but once they become involved in a case, it is clear from the verdicts which we see day after day in the criminal courts that they do try each case on its facts as opposed to prejudice.

The second point is that expert evidence is admissible only when it relates to a matter, which is outside a jury’s knowledge. Expert evidence can often be confusing and sometimes form a distraction from the real issues in the case and although juries are told they can accept it or reject it as with all evidence, expert evidence does undoubtedly complicate the criminal process and should only be admitted when it is necessary. The intention of this proposal is to simply ensure that the jury is made aware of possible other explanations for why a complainant should have behaved in such a way. Why is it better or necessary for such a reminder to come from an expert? It is not intended that the expert should comment on the particular facts of the case, just in general terms but an expert called by the prosecution on such a topic is very likely to be met with an expert called by the defence. It is not hard to see the situation arising in which one says to the jury that it is not uncommon for a complainant not only to delay in reporting but also not to give a full account when they do report the allegation and for the other to say it is more common for allegations to be made at the time and for there to be reasonable consistency. How is the jury to be helped by this?

There is a considerable body of research, which supports the claim that many people allow myths and misconceptions to affect their judgement when considering the credibility of a complainant making an allegation of rape. If there is the need in a particular case to remind the jury firmly that they must not let pre-conceived ideas affect their judgement, for example, that they must not assume that because a complaint is not made at the time, it is less likely to be true, then surely the best person to do so is the judge when directing the jury as to how they should approach the evidence. It is done in other aspects of evidence such as giving a “Lucas” direction on the many reasons why a person may lie and can be a very effective direction.
 
The proposal is for this type of expert evidence to be used only in rape cases as rape is expressed to be a “unique” offence. Whilst not in any way intending to minimise the effect of such a serious sexual assault on a person, it may be thought puzzling that no other offence is considered to have such an effect on a witness so that the jury need help with assessing inconsistencies or puzzling features of their evidence. Many criminal offences have serious consequences for those who are the victims of them and it is obvious that the effects on them may be deeply traumatising and affect both how they report the incident and what they are able to say about it. Juries can be trusted, properly directed, to use their common sense in assessing credibility.

There are many reasons why there is a low rate of conviction for rape cases. We should think long and hard before assuming that this sort of proposal will make a jury’s task easier and think even harder before we assume that the only right result in a rape trial is a conviction.