Sexual history of rape victims still being put on trial

I seem to be constantly departing from my main aim of talking about motoring law on the rare occasions I manage to write a blog but today the Times today ran an appalling story(£££) that serves only to sensationalise the public’s perception of how rape and sexual assault trials are conducted and can do nothing but put victims in fear of going to the police following an attack. They also included reference to the Ched Evans proving that once accused you can never escape these allegations even after acquittal - here's what I had to say about Evans case at the time.

According to the Times a study of 550 trials conducted over a two-year period found questions about a complainants sexual past were put in three-quarters of cases, which seems to suggest that the rules preventing this are being improperly circumvented. The Times goes on to assert that 44% of complainants were only told that they would face such questions after the trial had begun. Sadly, not a single one of these “facts” is borne out by the report.

It wasn't a study of 550 trials

In fact, the study being reported was an online survey of just 32 Independent Sexual Violence Advisers (ISVA) who collectively claim to have been present at “over 550 trials with their clients in the last 2-year period (from April 2015-April 2017)”. Note the use of the phrase “over 550”, this does not sound like the sort of rigorous accuracy that is likely to get you published in any respectable peer-reviewed journal - in fact the study is self-published! The survey itself is badly presented and I’ll come on to that issue later but for now we can say that the three-quarters of complainants questioned claim by the Times probably comes from paragraph 15 of the report, which includes a table in which 75% of respondents say that questioning happens between 1% and 74% of the time while 25% say they’ve never seen it happen. On any interpretation, a result of between 1% and 74% hardly supports the Times claim that these questions are put in three-quarters of cases.

This claim simply isn't correct

The Times claim that 44% of complainants only found out that they would be questioned about their past sexual history after the trial began seems to come from paragraphs 18 - 21 of the study report. Again the author of the Times story has either not understood what the author of the study is saying or as deliberately misinterpreted the information – I suspect misunderstood is most likely as this study is poorly written up. In fact, what it says at paragraph 20 is that “The complainant was informed during the trial that they would be questions about their previous sexual history” then gives figures that relate to the number of responses from each ISVA. Out of 32 responses to this question (there is no clue what happened to the other 4 ISVAs who completed the survey) 14 said that they had never known a complainant to be told they would be questioned in past sexual history during the trial – that’s 44% In fact, 22% said they did not know when the complainant was informed!

So, we have the Times making several claims about this report that are simply not correct. In fairness to the author of the Times report the study is badly written up and very difficult to understand due to both a lack of detail and a lack of clarity. For example, I am struggling to understand why on a question about when complainants were informed that they would be asked questions about past sexual behaviour the numbers of “don’t knows” do not add up? It strikes me that if you do not know what percentage were told before the start of the trial then you cannot know what percentage were told during the trial or not told at all. If you know the answer to two of these then you must know the answer to the third so I am unclear why the do not knows vary across what are essentially the same data.

Let’s look for a moment now at the experimental design used by the report author. I’m sorry to keep saying “the report author” but whoever wrote it has not felt confident enough to put their name on it. What we do know is that it was prepared by Lime Culture, an organisation that provides training to “‘the specialists’, (such as Crisis Workers, counsellors, Independent Sexual Violence Advisers, Young People’s Advocates, Forensic Practitioners, Police Officers), and those who have a professional role to respond when a man, woman or child has been raped or sexually assaulted.” 

The experimental design is difficult to pin down as the report does not set it out in sufficient detail for it to be replicated by another researcher – that’s never a good sign when conducting research. We know that in April 2017 Lime Culture carried out an online survey of ISVAs. We are told nothing else about the design that you might think would be important, such as how were respondents selected? Were they chosen by the experimenters or are they a self-selecting group? Was the survey open to anybody online to access and answer, i.e. can we be sure that only genuine ISVAs responded? What is the experience of these ISVAs? This could be important because if an ISVA is very new they may only have worked on a few cases and so their experience may be less representative of general experience and practice – this is important as well because experimenters may wish to exclude participants should they have too little experience. Interestingly, paragraph 14 makes the point that the respondents have been present at “over 550 trials”, which gives an average of 15 trials a piece of course this does not mean that the very inexperienced have been excluded. The report’s author tells us that this “highlights the level of experience the ISVAs that responded to this survey have in attending court for sexual offence cases.” I cannot agree with that – even assuming all did 15 cases in two years that is only one case every couple of months that is hardly a great deal of experience in the courtroom. I’d suggest that it is more likely that in busier areas some people did more than those people in less busy areas. Just to put that "over 550" number into context, in 2011 9,919 defendants appeared in the magistrates courts charged with sexual offences (page 32) so it could be said that these "over 550" cases are a drop in the ocean - I couldn't find statistics for 2015-2017 covered by this study but I doubt the numbers are significantly different.

Because we know nothing about the respondents or how they were selected it is difficult to know how seriously to take claims in the report such as at paragraph 26 where it is claimed that “Eleven (11) ISVAs who used the free text box said that complainant’s sexual behaviour is often introduced by the defence without making a proper application to do so.” It goes on to say that such behaviour is not always challenged by the judge or prosecution. As a lawyer who has worked on sexual offences (admittedly a long time ago) I find this claim exceptionally difficult to believe. With respect to both the report authors and the ISVAs, it is important to know whether the people making these claims are sufficiently familiar with either the case history or the law. This is even more pertinent when you go on to consider paragraph 28, which tells us that “[m]any respondents said they felt that previous sexual behaviour can never, or can only rarely, be of relevance. A number of the respondents went on to say that it should never be permitted when the previous sexual history relates to a person that is not the defendant.” Unless you are familiar with the law and understand how evidence of previous sexual conduct interacts with that law and the rest of the case then you really don’t have any place giving your opinion on this subject – it’s a bit like me telling a neurosurgeon how to operate, sure I’ve studied neuroscience at university so I know a bit but does that make me qualified to say which part of your brain should be cut out? While we’re here, you might want to ask yourself about the subtle piece of bias in that last quote – why is it okay to have free reign on a defendant’s past sexual history but nobody else’s? Someone care to explain to me how past sexual history is relevant to prove guilt but for nothing else? Also, what happens when the defendant is saying, “my previous sexual history is entirely with V and its all consensual?” Should that be inadmissible? If the complainants sexual past is never relevant then the answer must be "yes" no matter how unjust that seems.

The results tell us that all of the participants were from England (although London and Wales had only one respondent each, which may come as a surprise that such large areas are so sparsely represented) but how was this established? Is it taken on trust or did the experimenters use a participants IP address to confirm where they were located? Did participants have to prove that they work in these areas? This is important for proving the validity of your results.

Talking of the results, much of the reported results consist of ISVAs putting a tick in the box they feel is the most appropriate – that’s fine but how have they arrived at their answers? Have they just gone with gut feeling? Have they tried to remember past cases and tot up the answers? Have they systematically gone through old case notes to provide accurate figures? We simply do not know, which is a serious question mark over the reliability of this study. Also, when you read the report you may notice that of the 36 who took part, four seem to have ignored 60% of the questions, i.e. they answered 2 of the 5 reported questions, one of which was "where do you practice".

The hypothesis being tested. With respect to the author of this report they clearly did not ask these questions for a laugh. I would be very surprised if they put this survey together without a thought being given to the possible result it might bring and how that result could be used to further the aims of Lime Culture. Interestingly, the report does not touch on any such point. Now that is interesting because the other thing the report does not do is tell us what questions were asked. This is really important because without knowing exactly what questions were asked we cannot repeat the experiment; we will struggle to meaningfully compare it to official data or data from other studies; and we cannot know whether the questions were leading to an answer or open and fair nor are we told whether any questions were asked but excluded from the report. Survey questions really should be checked to ensure that they provide the true answer to a question rather than the one a surveyor would like to receive but we are told of no process being conducted to ensure this happened.

Finally, paragraphs 1.3 and 1.6 of Annex A includes the brag that Lime Culture has trained “over 3000 frontline professionals who are responsible for responding to victims of sexual violence.” And, “over 450 ISVAs from across the UK.” Two points, why is it that Lime Culture is so hazy on specific numbers when purporting to produce a sciency sounding report that goes on to make recommendations for changes to the law. More importantly from an experimental point of view, with "over 450" ISVAs trained by Lime Culture alone, just how statistically significant are the result of this survey taken from just 36 individuals? Have the authors conducted any statistical analysis of their results to establish reliability? They don’t mention any so I suspect not.

I’m going to be as kind as I can and describe this report as deeply flawed and not worth the digital paper upon which it is written. It has a pseudo-scientific feel that wants to make itself sound important and respectable while hiding the many flaws in its design. This is particularly concerning as the report author goes on to use their “findings” to recommend changes to the law by allowing complainants their own legal representation in court. This would be a substantial change in how we approach criminal cases in England and Wales – could we see a situation in which both Crown and Defence agree that past sexual history should go in but an intervening complainant seeks to block that evidence not in the interests of justice but because the complainant doesn’t like it?

I am also concerned that the government appointed Victims' Commissioner, Baroness Newlove, wrote the foreword to this report accepting it uncritically. 

If the law protecting victims of sexual offences are not being properly applied then that is a scandal and must be addressed but I am far from convinced that this report proves that is the case. If the law is being improperly applied then we must ask ourselves where are all the appeals from the prosecution against these improper defence tactics and bad judicial decisions?

When all is said and done, trials are about finding the defendant guilty or not guilty of an allegation. To introduce parties to proceedings who have an agenda of their own rather than one strictly aimed at getting to the truth of the matter is not likely to be something that serves justice.