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.

Reconstruction of a rape trial in court:

Judge: Miss Smith, what's the difference between serious sex and casual sex?

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

Barrister: It is fair to say that you went out looking for a good time?

Kate talking to Dispatches: They were blackening my character. And that was like being raped all over again.

Court reconstruction

Judge: A young, silly, misguided, naive, immature mixed up girl.

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

Clerk of the court: Do you find the defendant guilty or not guilty?

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.

Being raped by a stranger is very rare. Kate's story is far more common. On a Friday night she and her friends would usually go into town - have a few drinks and maybe meet some men. But Kate has clear rules about what happens next.

Kate: Possibly if we do fancy, we'll kiss them, but it'll lead no further. There's no way on earth we would agree to like a one-night stand, or have sex with them, no way at all.

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.

Kate: Myself and five other girls, we went back to there. We were just all getting on really well. We were just all chatting, had music on, having a good time really, getting to know them.

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.

Kate: I asked him why he'd done that, and he said he was - he felt uncomfortable, didn't want to get his shirt creased. And I said, 'Well, nothing's going to happen, I've told you that.' And he laughed and said, 'No, that's fine, just come and sit down.'

When she sat on the bed he began to pull her clothes off.

Kate: I was saying to him no, and asking him to stop, trying to get my clothes back down. But he was just too heavy. And I was trying to push him off, and I was crying and saying no, but he just carried on. It hurt.

Kate was 23 and a virgin.

Kate: I said to him 'You've raped me, you bastard.' Then I saw there was blood on the sheets, on the bed, and he just sat there and said nothing at all, no emotion, nothing.

Kate ran crying into the bathroom.

Kate: I sort of wedged myself between the sink and the toilet, and I was losing a lot of blood, and the blood wouldn't stop… and I was panicking, I was crying, hysterical.

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.

Kate: I was saying, 'No, I had a short skirt on, I went in to a room with him, I'd been drinking', I said 'No-one's going to believe me. . .' About an hour I think I must have been there for, and still didn't stop losing blood. So in the end I said to call the police.

But it was several hours before the police could take a statement - first Kate was taken to hospital where she needed treatment.

Kate: I was haemorrhaging quite bad really. The vaginal walls had been torn quite severely and I required stitches to stop the blood flow.

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.

Last spring the man appeared in court. But Kate felt that she was the one on trial

Court reconstruction

Defence: You had quite a lot to drink that evening did you not?

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

Defence: Because you found him quite attractive, I suppose, did you not?

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.

Court reconstruction

Defence: You were wearing false nails, I think, were you not?

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.
 
Court reconstruction

Defence: Then you realised that you were bleeding.

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.

Court reconstruction

Clerk: Will you please stand. Do you find the defendant guilty or not guilty?

Foreman: Not guilty.

The defendant cheered from the dock and then had some parting words for Kate.

Kate talking to Dispatches: He turned round and called me a slag... and his brother and friends, they were laughing and jeering. I felt - why have I gone through this, why is the system this way?

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.

Professor Jennifer Temkin: Try and suggest that, actually, this woman had brought the whole thing on herself, that she really had only herself to blame and, therefore, as it were, implicitly suggesting, though by no means expressly doing so to the jury, that, okay, perhaps she didn't actually consent but, at the end of the day, who's to blame for what happened? She is. So are we really going to want to convict this man of rape?

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.

The conviction rate was similar to last time - only one man in three convicted of rape. But since our 1993 programme a general view has grown among the legal profession that things have improved - in particular they say women giving evidence are no longer bullied and humiliated. To check that - we ordered the transcripts of the woman's evidence in half the rape trials we monitored. We found the defence still routinely imply that the woman is promiscuous.

Court reconstruction

Defence: Did I get the picture you would often be in Leicester Square talking to anyone who would come up to you?

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.

Mrs Justice Rafferty QC at desk: There's no question of any blanket admission of a lady's sexual history. It's got to be showing on its face that it matters to this particular allegation. So one would like to know why it's relevant, all the why questions. And one would decide on suggestion by suggestion. No-one would be allowing a jury to hear - well, she's always been easy, that's quite out of the question.

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.

Court reconstruction

Defence: I am bound to suggest to you that before this incident you had had sexual intercourse with a number of men in the earlier part of this year.

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.

Court reconstruction

Defence: I have got to suggest to you that there were arguments about the fact that you were still drinking during your pregnancy. Were you still smoking?

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.

Sam: My GP phoned me up and told me they wanted my medical records and they had no choice but to give them.

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.

Sam: We just used to sit and watch television or listen to music or whatever. Whatever things that friends do.

But one evening his attitude suddenly changed.

Sam: He made a pass at me. I said to him, I says, 'No way', I said 'Just don't go there.' I stopped him coming up.

He rang Sam repeatedly to apologise until she relented. He turned up at her house with a litre bottle of rum.

Sam: We sat drinking, sat talking. And he just changed. Looking back, I think he had it planned.

Sam caught him topping up her drink when he thought she wasn't looking.

Reconstruction

Man follows woman into kitchen, she pours out drink

Sam: I went to the kitchen, emptied it out, and he followed me to the kitchen. He told me: 'I'm going to shag you'. At which point I threw a fit. I went in the living room, and then he attacked me in the living room. He was very strong. He pinned me down on the floor. And his eyes were wild. I begged him to stop. It made no difference.

When the case came to court last summer the defence opened in the usual way - implying Sam had encouraged the defendant.

Court reconstruction

Defence: Prior to the 18th he has given you shoulder massages, has he not?

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

Defence: I am making the defence position clear to you so that you can respond in the way that you think right.

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.

Dispatches: Did you suspect why they wanted them?

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

Defence: And I think it is right to say, is it not, that you suffered from depression for a number of years?

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

Judge: So, what do you make of her? You know that on occasions she had drunk too much. You know that in the past she has, sadly, suffered from depression of one sort or another which has caused her, on her own admission, to have mood swings. But you saw her in the witness box; you have to make your own mind up about her.

The jury clearly found that difficult. In the end they came to a majority decision.

Court reconstruction

Clerk of the court: On the charge of rape do you find the defendant guilty or not guilty?

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.

Sam talking to Dispatches: My CPN, which is a community psychiatric nurse, was willing to come and give evidence on my behalf and explain things, it would have been all right, but they didn't bother calling him.

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.

Dr Gillian Mezey: Being depressed doesn't distort one's perception of reality. Histories of depression, histories of suicide attempts or overdoses are feeding into, if you like, the common prejudices and myths about people who have mental illness - the fact they are unreliable, unstable, incredible and liable to make these false claims. That's very unfortunate because that's a common prejudice but it's not supported by any medical evidence.

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.

Helen Grindrod QC: If a woman is attacked on the basis that she's depressed, and, therefore, unreliable as a witness I see no reason why people who have treated her for that condition should not be asked for a statement, a statement of further evidence to be served and that evidence to be called as part of the prosecution case.

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: I wasn't date raped, he was an acquaintance. But I think that the idea of 'this date rape isn't as serious as stranger rape' to me is just disgusting because I know what he did to me that night. I was there.

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.

Judy: I was looking out of my bedroom window and a few people went past who I know, I was talking to them. And then this person was walking up, and I recognised him, as someone to say hello to. And I started talking to him.

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.

Judy: It was extremely violent. He just held me down, and he kept calling me a bitch and hitting me in the face. I just couldn't believe what he was doing to me. The pain was that intense that I couldn't feel any more. He urinated over me. I was covered in urine. It was just the worst feeling. I've never felt so hurt in many different ways.

After the man had left Judy ran sobbing into the street.

Judy: I just ran out - ran out the house. I didn't know where I was going. I didn't know - I didn't know what I was doing. I just couldn't stay there.

Two passers saw her covered in blood and urine. They called the police.

Judy: The police took me to a rape suite, where I was examined. Then they … said to me that I could go and shower. And then I went into this bathroom and there was a mirror in there, and it was the first time that I'd actually seen myself, and I remember looking in the mirror and just crying.

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.

Judy: I was so convinced, the whole time, the whole nine months before the trial. No-one could tell me that he would get 'not guilty', because he'd raped me.

But she had no idea the defence would dig back almost 10 years into her childhood.

Court reconstruction

Defence: Right. Now have you ever done things … for attention.

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.

Court reconstruction

Defence: You first had to see a psychiatrist when you were 11 about cutting your arms and wrists at that age with razors and things like that, 1990 it was, do you remember?

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.

Court reconstruction

Defence: You have hurt yourself, injured yourself, a lot of times in the past, haven't you.

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.

Court reconstruction

Defence: I have no further questions.

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.

Dr Gillian Mezey: Just because a woman has a psychiatric history which may include self harm, which may include overdoses and depression that doesn't mean that she is liable or more likely to invite a perfect stranger into her home, ask to be beaten up, ask to be injured, abused, humiliated, urinated on, there's no connection there. And yet because the psychiatric evidence is introduced into court that suggestion is implied, that connection is implied.

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.

Court reconstruction

Judge: If the defendant is right, she wanted sex - not just straight sex, but what you might call somewhat deviant sex, involving some degree of violence and urination.
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.

Emma is typical of the women in our survey who said they'd been raped by boyfriends or partners. Three quarters of those women told us it had always been a violent relationship.

Emma: He's threatened to kill me. I've had my jaw fractured, and dislocated about three times. And torn ligaments in my arms, shoulder, and three broken ribs. And countless other - well, what I call like minor injuries really.

Like many battered women Emma called the police countless times but never pressed charges so her partner had no convictions.

Emma: I used to think that if he actually, you know, lost his job, if he got a criminal record and lost his job, it would be worse. I just thought my injuries would heal, and I could cope.

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.

Emma: Well it was half past two in the morning. I was in bed, and there was just this knocking on the door and I knew, I knew it was him.

Reconstruction

Man goes into house

Silhouette struggle

Exterior house

Worried he'd wake the children Emma let him in. He held her prisoner for four hours and raped her. When one of their children came downstairs he allowed Emma to take the child back to bed then raped her again ... even more violently.

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.

Court reconstruction

Defence: And there you did some damage to the house.

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.

Court reconstruction

Prosecution: Would it be fair to describe the relationship as having been a turbulent one.

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

Judge: He has said all along, 'I did not do it, she consented.' You have heard also that he is a man of good character - no previous convictions. He has reached the sort of age he has without committing any crime. You must take that into account.

Since the jury knew no different their verdict was unsurprising.

Emma talking to Dispatches: I rang up from my friend's and they told me it's 'not guilty'. And I just dropped the phone, just dropped the phone. I was just hysterical. I hated them all, I hated the jury, then I started to think that it wasn't their fault - they were never given the full story.

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.

If the violence has occurred over a period of time and is not related to the particular incident where the alleged rape is said to have occurred then it is unlikely that they will be charged together.

Dispatches: Our research shows that in pretty well every case involving rape in a relationship, there has been a long history of domestic violence ... they are inextricably linked.

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.

Helen Grindrod QC: If that incident includes violence and then leads on to rape, I see no reason why evidence leading up to that should not be admitted, because it explains how it is that the relationship has got to this point.

The victims feel it's all part of the same problem - the prosecution are not fighting hard enough to get a conviction.

Sam: My barrister just sat there. He never stopped the other barrister from harassing me.

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.

Ann Mallalieu QC: Increasingly relatively junior and inexperienced counsel prosecute in these cases because they are paid very little for doing so. Rape may be regarded as a very serious matter so far as sentence is concerned, but it doesn't seem to rate particularly high in the list of priorities so far as the Crown Prosecution Service, employing their counsel, are concerned.

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.

Sandie Hebblethwaite CPS: They're selected because we consider that their experience, characteristics, suitability and particularly their sensitivity to some of the issues that will arise in a rape trial, make them a suitable counsel to deal with.

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.

Linda Fairstein Assistant District Attorney Manhattan: I certainly think that the British system could adapt to the kind of work we do. I think any jurisdiction could.

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.

Linda Fairstein filmed in office

Linda Fairstein: Hello, this is Linda Fairstein calling from New York.

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: It's an extraordinary benefit, and I can't imagine a system which doesn't apply it, both for the needs of the victim and the needs of the state.

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.

Linda Fairstein: These victims are attacked, generally on every level. That the crime never happened, that they're making it up for some reason. A little bit of the defence wanting everybody to think she's unstable, if not crazy. Part of what we have to do is prepare the victim to know that her day in court is going to be harder than the day in court of a stranger-rape victim. It's getting her ready for that, helping her understand what the defences are, and getting her to meet those defences head on.

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.

Linda Fairstein: With very little extra effort we can call a pharmacologist, we can call someone who's treated that victim, or independently as an expert. And unless you go that extra mile, that victim is subject to attack for something that just is an absolutely invalid reason not to credit her for the rest of the story.

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.

Emma: I mean, how can you go in there and fight for me when you'd never met me before?

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?

Sandie Hebblethwaite CPS: If a victim has direct contact with the prosecutor, then when they actually go in to court then the defence can use that, effectively to challenge the reliability of the evidence, the testimony that they're actually giving at that stage, suggesting that the prosecutors rehearsed the evidence with them.

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.

Linda Fairstein: Our conviction rates in acquaintance cases probably range from a low of 60% in a given year to 70, 75%.

Dispatches: Our conviction rate for acquaintance rape is probably 30%. What's your reaction to that?

Linda Fairstein: Probably that something isn't being done right or as vigorously as it could be done.

In Britain the conviction rate has come steadily down - to the frustration of the police.

For every hundred cases reported - only about 20 get to court and only six men are then found guilty of rape. And despite a flurry of recent newspaper stories it's not because women are making false allegations. That suggestion makes some senior officers extremely angry.

Detective Chief Inspector Sue Hill, Metropolitan Police: Well, I've been a detective over 20 years and I can count on one hand the number of women that have come forward and made a false allegation. It doesn't happen. There is this notion that there are hundreds of women making false allegations. Let's get this into perspective. There are one or two. It's just a nonsense.

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.

Anne: I had been drinking. My injuries were minor. Because I didn't spit, fight, kick, cross my legs and all the rest of it I would have been ripped apart on a stand.

Liz went out to dinner with a fellow student and went back to his flat afterwards.

Liz: He hadn't actually physically dragged me to the restaurant. I had, I had gone trusting. Um, but they would just say, 'You'd, you'd gone willingly.'

Both women made statements and then withdrew them. The police are used to that.

DCI Hill: If you're honest and you say well the chances of convicting this individual are remote how many victims really want to go through that at court and be tormented again. It's like going through the rape again when the person who's attacked you walks away and is acquitted.

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.

Rachel: She said that if she went out of the room and told her colleagues everything I'd just told her they wouldn't believe her, they wouldn't believe my story and so that kind of made it all seem pointless.

Police policy is to treat rape complaints far more seriously than they used to but realistically they also have one eye on the courts.

DCI Hill: Well, in my experience, unless you're middle class, virgin, not been drinking, don't know the attacker, know nothing about him, you've done all the right things, you've made the phone immediately, you've got injuries, unless you have those set of circumstances with you, it's very unlikely that you'll convict your attacker.

Some senior barristers think one answer is to allow a wider range of sentences for different degrees of rape.

Ann Mallalieu QC: I have no doubt at all that juries hear some of these cases, which involve people who know one another, and they think, 'Well, that's not my idea of what rape is, rape is something far more serious than that.'

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.

Sam: There is no difference whether you know the guy or not. Rape is rape. No matter. I don't care what anybody says.

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.

Liz: I think it's actually worse when it's someone you know because it's someone - it throws into - all the trust you've ever been able to establish is challenged. And you're left without being able to trust anybody.

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.

Professor Jennifer Temkin: The only ethic seems to be winning. I mean, even this QC who talked about, depicting women as sluts - he didn't seem to see anything wrong with that, you know, that was the job, that was the nature of the job. And I think that one of the things that one does want to encourage is some kind of debate on the ethics of this. Now, some people will say, well look, we have an adversarial system, and if you have an adversarial system - trial by combat - then you have to expect that there's going to be blood on the carpet and that's it, but I'm afraid I don't accept that.

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.

Emma: It's just like a game to that barrister. It was ... I was just a number to him wasn't I? I was just somebody that he came across all the time and he just wanted to win his case, that's what it was about.

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.

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