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Rape and attrition in the legal process: a comparative analysis of five countries by Kathleen Daly & Brigitte Bouhours

Despite legal reforms, there has been little improvement in police, prosecutor, and court handling of rape and sexual assault. In the past 15 years in Australia, Canada, England and Wales, Scotland, and the United States, victimization surveys show that 14 percent of sexual violence victims report the offense to the police. Of these, 30 percent proceed to prosecution, 20 percent are adjudicated in court, 12.5 percent are convicted of any sexual offense, and 6.5 percent are convicted of the original offense charged. In the past 35 years, average conviction rates have declined from 18 percent to 12.5 percent, although they have not fallen in all countries. Significant country differences are evident in how cases are handled and where in the legal process attrition is most likely. There is some good news: a victim’s “good” character and credibility and stranger relations are less important than they once were in police or court outcomes. However, evidence of nonconsent (witness evidence, physical injuries to the victim, suspect’s use of a weapon) continues to be important.

Filename: Daly-and-Bouhours-2010-Rape-case-attrition.pdf
File size: 610KB
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Disclosure of records and privacy rights in rape cases, by Fiona E. Raitt

The prosecutor’s duty of disclosure of evidence to the defence in criminal prosecutions is one of the cornerstones of adversarial procedural justice and a long-standing principle in Scots law. It is a fundamental component of a fair trial, in particular the principle of equality of arms whereby the greater resources of the state to investigate crime entitle the accused to have access to the same evidential material that is available to the Crown. This is so even if the Crown has no intention of relying upon that material as evidence. The defence has a right to examine all information uncovered in the course of a criminal investigation that might exculpate or mitigate any criminal liability of the accused, or undermine the Crown case.

The Scottish Parliament recently enacted the Criminal Justice and Licensing (Scotland) Act 2010 which clarified and re-drew the boundaries of disclosure in Scots law. The Act contains detailed measures for extending the duty of disclosure together with the provisions for judicial regulation of non-disclosure in limited circumstances. This article focuses on a hitherto neglected aspect of disclosure, namely the impact on witnesses and complainers. The article argues that the Act will impact negatively on all witnesses but raise particular concerns for complainers in cases of rape and other serious sexual assaults. In such cases it is predictable that there will be an increase in the disclosure of medical and other personal records of complainers for any potential they have to cast doubt on the credibility and reliability of complainers. For the  purposes of disclosure, sensitive personal information such as mental health history could very possibly be characterised as material and relevant information. The problem with this lies less in the principle of disclosure of these records, and more in the ways in which the privacy interests of complainers could be heavily compromised in circumstances where they will have no access to independent legal advice.

The article explores the experiences in other jurisdictions where the disclosure of personal records has created an additional obstacle for complainants and a further disincentive to reporting rape. Clear parallels can be drawn with the use of sexual history evidence in rape trials which, despite efforts to regulate its admissibility, continues to be deeply problematic.

The extended ambit of disclosure set out in the Act has direct implications for the privacy rights of complainers and it is argued that the Act provides insufficiently robust safeguards for the protection of these individual interests. Given the complex environment in which disclosure obligations in adversarial proceedings must be satisfied, the article argues that on this issue Crown prosecutors cannot adequately discharge their traditional responsibilities to take the interests of complainers into consideration as part of the public interest. The article concludes that complainers should therefore have an entitlement to independent legal representation to pursue their legitimate privacy interests in non-disclosure. Although the article centres on the reforms in Scots law, the issues have broader application in all common law jurisdictions.

Filename: Raitt-EdinLawRev-2011-0004-2.pdf
File size: 128KB
Tags: legal
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Closing the credibility gap: The prosecutorial use of expert witness testimony in sexual assault cases

Recent Home Office research indicates that complainants in sexual offence cases still struggle to gain credibility in the eyes of police, prosecutors and jurors. This article examines some of the credibility barriers confronting victims of sexual offences within the criminal process. In the USA, prosecutors
have utilised expert witness testimony in an effort to educate jurors and restore credibility to complainants’ accounts. This article critically assesses these developments and explores the potential admissibility of ‘educational’ expert witness testimony in criminal courts in England and Wales.

Filename: ClosingTheCredibilityGap-Ellison.pdf
File size: 157KB
Tags: legal