Tuesday, 31 January 2012

Stereotypes: do they affect the outcome of cases?

Alison Saunders - CPS London
Without attempting to define the meaning of "stereotype" it is possible to describe the word as a widely held but fixed and oversimplified image or idea of a particular type of person or thing.  "Stereotypes" abound.  Characteristically, a stereotype is, at best, based on very broad generalisation with little factual support.  Stereotypical views can be prejudicial and stand in the way of seeing each person as a unique individual and they can distort decision-making. 

Alison Saunders is the Chief Crown Prosecutor for London and, on 30th January, made a speech in which she tried to start a debate about how we in society view the offence of rape and whether we bring our conscious or subconscious views and stereotypes to our consideration of it.  See the speech on the prosecution of rape and serious sexual offences (CPS website).   In the speech, examples of myths and stereotypes are given together with their implications and the true facts.  For example: rape only occurs between strangers in a dark alley; if the victim didn't complain immediately it wasn't rape" etc.

This speech, by a highly experienced criminal lawyer, is well worth reading in full.  Saunders hopes that the facts and issues raised in her talk will prompt people to start thinking about how "we together can combat and dispel the myths and stereotypes that affect public perception of rape offences."

"How do we make it easier for women to feel that
they can report an offence of rape without being disbelieved or vilified if they go through the process?  How do we ensure that myths and stereotypes do not play any part in a jury's deliberations whether consciously or subconsciously?"

Changes to the law:

The substantive criminal law has changed considerably over the years.  For instance, in R v R [1991] UKHL 12, the House of Lords (Lords Keith, Brandon, Griffiths, Ackner and Lowry) overturned a long-standing common law rule that a man could not be guilty of raping his wife.   Lord Keith delivered a speech with which the others agreed and endorsed a dictum of Lord Lane CJ - 

"The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."  (Emphasis added).
The Criminal Justice and Public Order Act 1994 Part XI created the offence of rape of a male.  (Here is another topic replete with myths). 

A rule that a male under the age of 14 could not commit rape as a principal offender was removed by the Sexual Offences Act 1993.which abolished the presumption of law that a boy under the age of fourteen is incapable of sexual intercourse (whether natural or unnatural).

The law underwent extensive alteration in the Sexual Offences Act 2003 which was enacted following the publication of a White Paper in November 2002 - "Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences" - (Cm 5668).  The 2003 Act amended the definition of some offences including rape which is defined in section 1.

One stereotype relating to rape is that the victim would complain about it as soon as possible thereafter.  It has not be uncommon for counsel to argue that delay in reporting an alleged assault casts doubt on the credibility of the complainant.  This was discussed by the Court of Appeal Criminal Division in GJB v The Queen [2011] EWCA Crim 867 referring to earlier authorities R v D (JA) [2008] EWCA Crim 2557 and Miller [2010] EWCA Crim 1578.   As Alison Saunders points out in her speech - "the trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint. This fact was recognised by the Court of Appeal in R v D (JA) October 24 2008, where it was held that "judges are entitled to direct juries that due to shame and shock, victims of rape might not complain for some time, and that a late complaint does not necessarily mean that it is a false complaint."  This remains a difficult evidential area for judges and jurors alike.

Other material:

CPS Policy on Prosecuting rape

Law on Sex Factsheet - FPA January 2011

Baroness Stern's  Report published in 2010 "How complaints of rape are handled by public authorities in England and Wales."   Baroness Stern was commissioned by Jacqui Smith, then Home Secretary, and Harriet Harman, then Minister for Equalities, in November 2009 to conduct an independent review into how rape complaints are handled by public authorities in England and Wales. She was asked to consider how to encourage more victims to report rape, how to improve the response of the criminal justice system and the conviction rate in line with the principles of justice long established in the UK, and how to build confidence and satisfaction in the handling of rape cases.  The Government's response to the report is here.

Rapecrisis England and Wales


  1. It appears that the good lady doth protest too much. She is disturbed about what she considers public misconceptions or perhaps misconceptions held by the public. That she disagrees with these misconceptions is neither here nor there. It is not for her to convert the public. It is for her to convict real rapists in this real world with the law at her disposal as it is; not as she might desire.

  2. @ Justice of the Peace - Fair points. As I see it, the CPS Rape Manual sets out what it calls "societal myths" and informs prosecutors that "it is therefore imperative that we recognise these myths and challenge them at every opportunity." Apart from prosecutors employed by the CPS there is now a panel of some 2500 prosecutors though not all of those are authorised to prosecute rape cases.

    You may also find these links of interest:

    Selection of prosecutors

    Instructions for prosecutors

  3. In the end juries decide rape cases on the evidence and on their general knowledge of the world, and there is nothing wrong with that. A rape trial is just that - it is not a forum in which to challenge the ills of society.