This is a transcript of Rape on Trial which was made for Panorama by Films of Record and first transmitted on BBC One on Sunday 25 June 2006.
WOMAN V/O: They said you get undressed quietly or do we have to hold you down and get you undressed?
Second officer into room
AMELIA HILL VOICEOVER: In 1982 the BBC broadcast a film of police officers interviewing a woman who claimed she'd just been raped by two men she'd met in a pub.
POLICEMAN 1: You told me earlier on you were on the game or had been on the game.
WOMAN: No, I've never been on the game.
POLICEMAN 1: Never been on the game?
WOMAN: No, I never taken money for sex, ever.
POLICEMAN 1: No. And have you had sex with a lot of men?
WOMAN: Well, not really.
POLICEMAN 1: Well how many men have you had sex with? Can you count them on one hand or can you count them on two hands or three hands, you know - eh?
WOMAN: I can count them on one hand.
AMELIA V/O: 25 years ago, police were told the majority of rape complaints were false. They were trained to test such claims rigorously at the earliest stage.
POLICEMAN 1: What you're telling us, is it the truth?
WOMAN: 'Course it is. I wouldn't be here now, would I?
POLICEMAN 1: Well, I don't know, there might be an ulterior motive for it, might be a reason for it.
AMELIA V/O: The impact of the film was colossal. Questions were asked in Parliament, and newspapers called for a major change of policy towards rape victims.
POLICEMAN 2: You're not upset by it. You haven't taken a blind bit of notice of anything that's gone on. The story you've told us, is, like my colleague says, a Fairy Tale.
AMELIA V/O: I've spent years as a journalist investigating the issues surrounding rape. Since that film, police have made serious efforts to improve the treatment of victims. But the conviction rate for rape is at an historic low - and earlier this week the Government admitted that one recent law that was designed to improve the situation is having no impact at all. Tonight Panorama asks whether rape victims can be given more support while still giving the accused a fair trial.
Tonight, Panorama asks whether rape victims can be given more support while still giving the accused a fair trial.
BARRISTER: I am going to suggest to you, that you and he had passionate, steamy, casual sex - both of you consenting.
WOMAN IN DOCK: No. I did not consent to have sex.
AMELIA V/O: The 1982 film did transform the way police are trained to handle rape allegations. They are now told to treat complainants with respect, and an initial presumption of belief. It also led to the provision of specialist treatment for those who say they've been raped.
POLICEWOMAN: You OK?
WPC: What's going to happen now is we're going to go through the main entrance and then where we're going is just round the corner to the right.
AMELIA V/O: This is a reconstruction of what happens in a Sexual Assault Referral Centre - a one-stop service where both women, and men, can be forensically examined, and medical care and counselling offered. An actor is playing a rape victim - based on an actual case. The civilian staff play themselves.
LESLEY: I'm Lesley. I'm the crisis worker here at the centre.
CATH WHITE: Hi Cath White, I'm the doctor.
AMELIA V/O: Reporting rape is a horrific experience in itself, as it forces victims to relive the attack. Each year, nearly one thousand men and women visit this centre in Manchester alone.
LESLEY: - OK?
LESLEY: How are you feeling?
GIRL: Erm - rubbish really, feel a bit sick.
LESLEY: Yeah I'm sure you do.
GIRL: I can't stop it going over in my head. And I don't want it to be there any more.
LESLEY: We can offer follow up services here Sally. Yeah?
Counsellor & Crisis Worker
St Mary's Centre
What we try to provide here is a safe er environment. When this type of assault happens, all choice and control is taken off that individual at that point. So I think it's really important that we start immediately to begin to give some of that back.
CATH WHITE: OK, so what I'm going to do is just take some swabs from inside your mouth. It doesn't hurt. If you have a look, it's just these felt things, all right, and it's just getting a little bit of your DNA. Is that OK?
DR CATHERINE WHITE
St Mary's Centre
Our job is to take the evidence, er to collect any DNA and document the injuries as accurately as possible er so that the evidence that we do get is of a extremely high standard.
CATH WHITE: You said that he was kissing you - whereabouts was he kissing you?
GIRL: Round here.
CATH WHITE: OK. Because what would be a good idea is to get some swabs from that area, because what we're trying to do is pick up his saliva.
CATH WHITE: You know I feel very strongly it's their body er so we don't do things to them, we say this is what we would like to do. And it's up to them if they have that process done.
AMELIA V/O: These centres have helped to persuade more victims to come forward. But there are just 14 Sexual Assault Referral Centres in the country. Seven out of ten of those women and men who report rape have to experience the less-specialised services of their local police station. Those officers may not have been trained in taking evidence in these cases.
This is thought to be one reason why the conviction rate for rape remains so low.
1985 1,800 complaints of rape
2003 13,000 complaints of rape
In 1985, there were about one thousand eight hundred complaints of rape made to the police.
By 2003, almost thirteen thousand complaints were made, according to the most recent figures.
That seven-fold rise is partly due to increased confidence in the police. But the bad news is the conviction rate.
1985 1 in 4 men convicted
2003 1 in 20 men convicted
Back in 1985, 1 in 4 of the men accused of rape were convicted of the offence.
By 2003, the conviction rate had fallen to just 1 in 20 of those accused. So what's going wrong?
The original film revealed a lack of understanding about how rape can affect a victim's behaviour - and how that could colour officers' opinions of what they heard.
"A Complaint of Rape", 1982
POLICEMAN 2: And I would go so far as to say that you went to that house willingly. There was no struggle. You could have run away quite easily. You're not frightened at all. You walk in there quite blasé, you're not frightened at all.
WOMAN: I was frightened.
POLICEMAN 2: You weren't! You're showing no signs of emotion. Every now and again, you have a little tear.
DR FIONA MASON
Consultant Forensic Psychiatrist
If you are severely traumatised you will be emotionally numb. People might think - well the obvious thing would be for someone to scream or to run away, but in fact that's - might be something they're completely incapable of doing. When there's overwhelming terror, and very high arousal levels, in fact that can lead to a complete inability to move. But that helplessness can then be misinterpreted.
AMELIA V/O: In some cases, victims say police still fail to make allowances for the traumatic effect rape can have. Chloe - not her real name - is one of these. She says she was raped by a school friend five years ago, when she was 16. She still recalls the details.
CHLOE: I remember him pushing me. I remember my head smashing against the windowsill. He was just all over me, I couldn't get him off.
AMELIA: And then afterwards?
CHLOE: He just got up and walked away, and I just had to get the hell out of there. I ran out onto the road, nobody was around - and got a bus home.
AMELIA V/O: But despite her vivid recollection, Chloe says she was so traumatised by the attack she couldn't bear to tell anyone what had happened. It took her two years to report the incident to the police.
CHLOE: I thought I could deal with it ¿ but I couldn't.
FIONA MASON: One of the other factors that very often I've seen, is that it may only be some years after an event that the individual feels actually able to talk about it to someone else. The awful thing is that the research shows us that late reporting makes a very significant difference to conviction rates.
CHLOE: I wanted to put it in the past. I just wanted to just forget it.
AMELIA: Why did you choose to go to the police in the end?
CHLOE: He threatened me, and to me that was it, I'd had enough. I couldn't live with the fear that, you know, he could do it again to somebody else.
FIONA MASON: The interviewing police officer needs to have some knowledge and understanding about how trauma affects an individual's ability to speak about what happened to them. Asking the right questions early on, taking statements in a way that enables the person to give the most accurate account of what happens to them. Because that way those initial statements will be more accurate, and therefore will provide better evidence.
AMELIA V/O: Such knowledge and understanding is not guaranteed however, even in areas with sexual assault referral centres. Chloe made her initial report in one of the new centres but, two days later, she decided to make a formal complaint. She was taken to an ordinary police station to make her statement.
CHLOE: I wanted just to get away from it for a bit, but they wouldn't even let me have a break at all. I just felt so tired and shattered.
AMELIA: How long were you in there for?
CHLOE: I can't remember, I think it must have been going on about eight hours. You know, I wanted to do my statement over two days, but they wouldn't let me. 'Cos my statement was so long I had to sign every single page and re-read it and I asked them "Could I re-read it another day to check it was all right?" They wouldn't even let me do that, they just wanted to get it out the way and done. And I just felt as if everything was building up on top of me after I reported it, and it all just got so much that I ended up in hospital for five days 'cos of the stress of it all.
AMELIA V/O: While still in hospital, Chloe was told her complaint had been dropped because of a lack of evidence and discrepancies between her police statements. But Chloe admits only one error - she got the day of attack wrong. She says this happened because the police insisted on a date even though, two years on, she couldn't remember for certain. And as for the lack of evidence - Chloe blames the officers.
CHLOE: There was so much they missed out on. They promised to take statements from members of my family, but they didn't take them. They said they were gonna trace people - they never did. So they missed out a huge chunk of the investigation.
AMELIA V/O: Whatever reason those officers had for not following leads which Chloe said she gave them, experts say such failures by the police are not unusual.
Professor of Law
University of Sussex
In a rape case you need every scrap of evidence that you can possibly get. And I'm afraid that all too often, this sort of evidence gathering by the police, which is so critical, hasn't been done properly.
I've been in cases in the past where there's been ripped clothing of the complainant and it hasn't been picked up, it hasn't been looked into. I've been in cases where forensic evidence hasn't been considered at the investigation stage. So I think that the quality of the police investigation can mean that when it comes to court somebody who is guilty is acquitted, because the jury can only act on the evidence they have.
AMELIA V/O: Chloe says she was raped by someone she knew very well. She believes this was another reason why the police did not investigate her case more thoroughly.
CHLOE: I don't think they even weighed up the pros and cons of taking it to court. They just looked at the negatives, and if it's not the perfect case of "you were raped by a stranger and you reported it straight away," then they just chuck it out.
AMELIA V/O: Surveys show that four out of five rapes reported to the police, are committed by men who are known to their victims in one way or another. Chloe's suspicion that the police take rapes by strangers more seriously is supported by academic research.
JENNIFER TEMKIIN: You've still got, with some police officers, what one might describe as an attitude problem, um, a belief that stranger rape is really the only type of rape that is worth bothering with. And when I talk about a stranger, we're talking about, you know, that person jumping out of the bushes, or jumping out of a dark alley, that sort of thing. Most rapes don't involve that particular scenario. But I think there is that stereotype around, and a kind of feeling - well if it's not the stranger leaping out of the bushes, perhaps this isn't "real rape".
AMELIA V/O: This idea that the only strangers can commit real rape can have enormous impact on whether cases get to court. It remains as common a misconception about what constitutes rape, as it was in 1982.
POLICEMAN 2: We know what's happened here, right, you go to a pub, you meet a couple of fellas, they say, let's go back for a cup of coffee. You go back. It goes a bit too far. And they have sex with you.
WOMAN: I didn't even know them before.
POLICEMAN 2: Well you left the pub with them.
AMELIA V/O: Police policy towards victims has been transformed as a result of this film. But with the conviction rate so low, police confidence in getting guilty verdicts is now at rock bottom. Some experts believe the scepticism of 25 years ago, has been replaced by something just as negative - a culture of pessimism.
VERA BAIRD MP: You can just imagine the attitude, a rape file comes in, the conviction rate is extraordinarily low, they will be looking all the time for the factors that are likely to make it a loser, rather than likely to make it a winner. 'Cause they want to say - call it a day now, we'll not take it any further, 'cause we're going to get nowhere with a rape.
AMELIA: Rape is a uniquely difficult crime to prove, perhaps we're never going to have as high a conviction rate as we do with something say like murder?
VERA BAIRD: In so far as it often is one person's word against another, then it is a difficult crime to prove. But that makes all the more reason for police to have an active investigation. And they just don't do it.
AMELIA V/O: John Yates of the Met is a leading police expert on rape. He agrees some poor policing exists, but says it's becoming less common.
Association of Chief Police Officers
Spokesman on rape
All I would say is that my, my - my hope is that the very vast majority of rapes are treated - well all rates should be treated - but the very vast majority are in fact treated with great seriousness, with great attention to detail, with great sympathy and empathy, er by the investigating officers.
AMELIA: With the greatest respect, that's just not what we've been hearing. Experts say this is very common.
JOHN YATES: Right OK, well I accept that may have happened. But what I would - what I would say is the emphasis that we now put on the way we treat victims, from the outset, is absolutely vital. And you'll see from the range of the sexual assault referral centres around the country, that is clearly paramount in our mind. Second aspect is, you know, the way we concentrate on forensics, in terms of the way we recover evidence. And a third issue really we concentrate now on is around training. In order to drive those sort of - those issues home.
TRAINER: Right, what we are going to do now is a sensory exercise. Six of you are about to leave the room. And the other six are going to either witness or experience something.
AMELIA V/O: These officers from the Metropolitan Police are being trained to be meticulous and gentle to get the best account from victims whose memory may have been impaired by their experience. This sensory exercise highlights what information can be stored, and how it can be recovered clearly through structured questioning.
TRAINER: Could you put that on for me please?
TRAINEE: Thank you.
TRAINER: And can you keep them on until I ask you to take them off.
Head of Specialist Skills Training
Metropolitan Police Academy
For the officer that's been blindfolded, it allows them recognition as to - in only a slight way - how a victim might feel having been through a traumatic attack, where they're then feeling very disorientated, and how difficult it can be for somebody in those circumstances to actually give a clear account of what they've actually been through.
TRAINER: OK - I'm going to invite the other six back. What I will be asking you afterwards is the style of questions, the body language, did they put you at your ease?
GEORGE COUCH: For the officer that's doing the interviewing, it allows them to understand that they should ask questions in a clear and logical manner, listen to what's being said and pick up on the gaps.
TRAINER: Now remember what I said this morning - detail, detail, detail. Off you go.
TRAINEE WPC: You said you were sitting in a room, on a chair - can you tell me where the chair was?
TRAINEE WPC: Opposite the door against the wall.
TRAINEE PC: Can you tell me what happened then?
TRAINEE PC: Um. Sharon asked me to put my hand out and then she placed this metal object into my hand.
TRAINEE WPC: And what was the first feeling that you actually felt when you held the object in your hand?
TRAINEE WPC: That it was cold, so it was cold & metally, and then I just felt the size of it.
PC JULIE-ANN PADDOCK
AMELIA: And what have you learnt about the technique of questioning rape victims?
TRAINEE WPC: At the end of the day you must remember it's is an investigation but it's about gently sort of coaxing it out of them rather than being blunt and aggressive. And the tone of your voice, especially, just one word can change the way people see you and the way they react to you.
1982 BBC Archive
A Complaint of Rape
POLICEMAN V/O: Listen to me. I've been sitting here 20 minutes, half an hour, listening to you. Some of it's the biggest lot of bollocks I've ever heard.
AMELIA V/O: For the past 20 years, this BBC film has been shown to officers during specialist rape training, as an example of how not to conduct an investigation.
POLICEMAN 2: So we can confirm it's happened, that you've had sex -
AMELIA V/O: Another issue the film revealed, was how police reacted to complainants who they felt would not stand-up to cross-examination in court.
POLICEMAN 1: And what did you go in there for?
AMELIA V/O: This woman had a history of mental health problems.
POLICEMAN 1: You're well known to the uniformed lads for being a nuisance in the street, shouting and bawling. A couple of times you've been arrested, under the Mental Health Act, haven't you?
WOMAN: When I was ill, yeah,
POLICEMAN 2: Yeah, right.
POLICEMAN 1: If we deal with this as rape, they're going to ask you all these personal questions in the Crown Court. Which is why we've got to determine whether what you're telling us is the truth, because we don't want to go to court on a case which is a shaky case, do we?
Twenty-five years on, Patricia Byrne says she was raped by a man after they met in a local supermarket. She says he came to her house promising he could find her work, and she invited him inside. Like the woman in 1982, Patricia has mental health problems.
PATRICIA: I can remember him raping me, I can remember him being on top of me, I can remember thinking that he was really heavy, and it was really brutal, it was a really brutal rape. The more that he was being angry with me, the more that it was hurting me and that's why I've got like the injuries, like the internal injuries and the bruises that I've got, I have bruises all over my leg.
Patricia says that within hours of the attack she was medically examined at her local hospital, and advised her injuries were so extensive that she should go to the police. She says the police treated her well and said she had a powerful case. But their attitude changed when an officer discovered her history of mental illness and alcoholism.
PATRICIA: Well, first of all, she actually said to me that she got the, my Medical Records from the Doctor, and my Medical Records say that I've been in Rehab.
PATRICIA: Um, and that I was an alcoholic. And so from that, she judged me from that.
AMELIA V/O: Despite her physical injuries and her wish to go to court, Patricia says the officer urged her to sign a form that left the Crown Prosecution Service no alternative but to drop the case.
PATRICIA: She actually said to me that "they'll tear me apart in Court" and "I don't think you're strong enough to actually deal with it". And obviously I was crying and I was really upset. And I had to write - no she wrote the Statement - "I am an alcoholic and I do, do not want him to go to Prison".
AMELIA V/O: This account highlights a major obstacle for vulnerable victims like Patricia if their cases come to court. Defence barristers will challenge their testimony, and use any personal problems to attack their credibility. It's a difficulty that troubles
Mike O'Brien, the Solicitor General - one of the people responsible for giving legal advice to the Government.
MIKE O'BRIEN: If it's one person's word against another and the victim is a very vulnerable person, perhaps with psychiatric or mental health problems, then that becomes a very difficult process for our criminal justice system to cope with.
What we can do is improve the facilities, the processes, so that the victim can more easily give evidence.
It's now possible for particularly vulnerable witnesses, to give evidence from behind screens, to give evidence through a video link.
AMELIA V/O: But Patricia didn't get an opportunity to benefit from these improved court facilities. And while she felt she was well treated by the police generally, she did object to the attitude of the officer who interviewed her.
PATRICIA: I actually felt that she was defending him. And do you know, it made me ill, it made me sick.
AMELIA: What did she say that made you feel she was defending him?
PATRICIA: Because she actually said to me that he has learnt his lesson, he will never do it again. I asked her why I had the internal injuries, and she said because I was dry. And she said "Some women use KY jelly". So what she said is I needed lubrication.
AMELIA: Was she insinuating that the sex was consensual?
PATRICIA: Yeah, consented yeah. If I had been in a consensual situation with somebody I wouldn't have the internal injuries like what I've got. And I have been ripped apart. It was really bad. It was really bad.
AMELIA V/O: There were some disturbing parallels between Patricia's recollection of her experience, and that of the woman who reported rape 25 years ago.
1982 BBC Archive
Patricia agreed to watch the film and tell me what she thought.
WOMAN SOF: So I said, well can't you hang on a minute, I don't like being in this pub on my own, I said I don't like being in any pub on my own.
PATRICIA: When was this is taken?
AMELIA: This was 25 years ago.
WOMAN SOF: So I said - why do girls on the game come in? And she said, sometimes. I've known that.
PATRICIA: This is disgusting. I knew this would upset me.
POLICEMAN 1: Have you ever been - have you got any history of any sort of, you know, you been in places like (BLEEP)?
WOMAN: I have (BLEEP)
POLICEMAN 1: What, as a voluntary patient?
PATRICIA: This is quite horrifying for me to see it and it is.
WOMAN: If I just wanted a good time I would go out with my boyfriend and have it, wouldn't it?
POLICEMAN 1: I don't know what you would do. What you're telling us, is it the truth?
WOMAN: Of course it is. I wouldn't be here now, would I?
AMELIA: Did you feel that you were being bullied?
PATRICIA: Yeah, definitely, definitely, yeah I was definitely being bullied. Sorry for crying.
Many police forces are trying to improve their handling of victims, but rape remains a low priority for the Home Office. Unlike burglary, vehicle crime and street robbery, rape is not one of the crimes on which police performance is measured, nor one on which performance bonuses depend.
Association of Chief Police Officers
Spokesman on rape
I would welcome some very stiff targets around the way that rape is investigated and managed throughout the police service, because erm I think that would provide perhaps that extra motivation erm for colleagues across the country to invest that little bit more in this very important crime. Both within the Home Office and beyond, the reaction's been yes I think this is something we ought to be doing.
AMELIA: So can we look for that to happen in the near future, that rape would become a performance target for police?
JOHN YATES: I would say hopefully the very near future, the next performance cycle, I would hope.
AMELIA V/O: But it's not just the police and their view of rape that affects the conviction rate - fear of the court process itself is also to blame. One in three of the cases brought to the police end up with the victims withdrawing their complaint. Many of them say they can't face giving evidence in court.
One woman who did decide to take her case to court last year, says she was traumatised all over again by the experience of being in the witness box.
JUDITH: I've had depression. I had to go on to anti-depressants. There are days where I will just completely break down and just scream and cry and - still not quite believe that it's actually happened to me.
AMELIA V/O: When the case was heard, it became headline news.
NEWS REPORTER V/O: The woman who brought the case was a 21 year old student at Aberystwyth University. After drinking heavily at a party here in the arts centre, a security guard walked her home. She claimed he raped her in a corridor.
AMELIA V/O: Despite national attention over her case, this is the first time that Judith, not her real name, has spoken publicly.
JUDITH: I felt quite ill, and drunk. So ill that I actually had to go and be sick, and there was sick on my dress, so I didn't want anybody to see me in such a state. So I was met by this woman, who said I'm going to get somebody to walk you home. So I said OK, and he walked me home. And I don't really remember that at all. And then next thing I know is outside my flat door and I'm lying on the floor. He's standing over me and he um ejaculates in my face. Which horrifies me. Then he leaves, and I just open my flat door and just collapse in a heap on my bed.
AMELIA V/O: Judith says she had so little recollection of the events of that night, that she didn't realise the man had also had sexual intercourse with her - until a police officer told her he'd admitted this, but claimed that she'd consented.
JUDITH: She had to tell me that I'd been raped, which was - the biggest shock of my life.
I decided I wanted to go to court so he couldn't do it again. That was my main concern. I didn't want him to think that this was something that he could normally do.
AMELIA V/O: Last November, the trial was held at Swansea Crown Court. With no witnesses or physical injuries, the outcome depended on her credibility - it was her word against his.
Professor of Law
University of Sussex
The defence counsel's strategy in these cases is to undermine the credibility of the complainant. Sometimes this is done in a very heavy-handed way, you know, by dragging in her sexual past. Sometimes it's done rather more subtly. But it doesn't matter which way it's done, that is the strategy. To suggest to the jury that this woman, who is telling you this story, well perhaps she's not entirely credible.
JUDITH: The defence just asked me question after question after question, and he made it feel like a personal attack.
BARRISTER: I am going to suggest that as you left the party with the defendant, you were touching him, you had one arm around his neck and the other around his waist?
GIRL IN DOCK: No
BARRIESTER: But you do remember, saying to him as you left, words to the effect of "I never realised how good looking you were or how handsome you were"?
GIRL: I didn't say that.
BARRISTER: But you don't remember any conversation on the whole walk home, do you?
GIRL: No, I can't remember the walk home.
BARIRSTER: You can't remember? Well I would like to suggest to you that you were really quite flirtatious. That you did in fact, put your hand on his private parts over his trousers, is that right?
BARRISTER: And then when you got to the halls of residence, you continued to, to put it bluntly, to seduce him?
GIRL: I did not.
BARRISTER: How can you be sure of that?
GIRL: I went to get my keys out of my handbag.
BARIRSTER: You initiated the sex. I mean I wont go into the details, but you and he had passionate, steamy - I mean another word for that might be exciting - casual sex, both of you consenting, outside the door of that flat?
JUDITH: They broke me down, emotionally and physically, and left me a complete mess. I'm meant to be a witness giving evidence, and it felt like I was put on trial. That's how it felt.
AMELIA V/O: How important is it, when you're defending an alleged rapist, to try and destroy the witness's credibility?
If you mean that in putting to them that they're making something up, that's your defendant's case - you have to do that. But I think it's very difficult to make the experience better for the victim, because they are going to be challenged on their account, which to a degree is going to mean that they have to relive those details.
JENNIFER TEMKIN: When I interviewed barristers for a recent study that I've done, one of them, a QC who'd represented countless defendants, said that actually it's terribly easy to defend in a rape case. Because it's so emotional for her, she's so nervous, it's such an easy thing to undermine this woman's credibility in the eyes of the jury. It's so easy in fact, he said, that um he began to feel terribly uncomfortable about doing it, and no longer does these cases.
I think we must do a lot more to help victims. Rape is one of the most traumatic crimes that can be committed. There are things that we're starting to do now in terms of witness care units, people who will help the victim through the criminal justice process itself, advising them, you know, what it's like to appear in court and give evidence. We're also introducing a new Code of Practice to help victims, and also a Victims' Commissioner. The whole process of making these changes, is about making what is always going to be difficult, perhaps less traumatic.
AMELIA V/O: While these changes should help victims in court - the rise of so called 'ladette culture' is a new problem that is also taking its toll on conviction rates.
In recent years the drinking habits of many women have been transformed. Alcohol now plays a part in over one third of reported rapes. But it is in these cases that the law offers victims the least protection. The way Judith's cross-examination ended, illustrates why.
JUDITH: Um he just kept badgering and badgering me. It just seemed that any answer that I gave, you know, he wasn't satisfied with.
BARRISTER: Do you not think, in the circumstances, that you might have been mistaken about some of the things that you have recollected?
BARRISTER: Or in fact, that you might not have been able to remember everything?
GIRL: I remember as much as possible, but I am clear in my own mind that I would not have consented to anything. If I'd wanted to sleep with him, I would have walked the few steps that it was into my bedroom
BARRISTER: So what you are doing - and correct me if I am wrong - but you are making an assumption, that you would not have consented to have sex in the corridor?
GIRL: I did not consent to have sex.
BARRISTER: Even though you couldn't remember anything about the night before when you first woke up?
BARRISTER: Is this not a case of you refusing to accept that you might behave differently when intoxicated?
BARRISTER: More intoxicated than you have ever been before?
BARRISTER: But you cannot say for definite that you did not give your consent, because - because you can't remember, can you?
GIRL: I can't remember, no.
BARRISTER: So, you're really saying, "Well I don't remember, but I'm sure I wouldn't have behaved in that way." That is what all this is about, isn't it?
GIRL: No, it is not.
BARRISTER: My Lord, I have no further questions.
JUDGE: Thank you. You are free to leave now.
AMELIA V/O: The prosecution decided that admission introduced enough uncertainty to make it impossible to prove beyond reasonable doubt that Judith had been raped - and they withdrew the charge. The judge agreed. He said he would have halted the case, if the prosecution hadn't done so.
JUDITH: I just cried and cried and cried. I couldn't stop crying. I just kept saying "I've come here to stop him doing it to other people, and you're just letting him go. How can you do that?"
AMELIA V/O: The implication of Judith's case was plain - unless victims have a clear memory of refusing consent for sex, the court must give the accused the benefit of the doubt and find them not guilty. But some believe the law should ask a different question - was she so drunk that she simply could not have given informed consent in the first place.
JENNIFER TEMKIN: Given this woman's state, and she was very drunk, very, very drunk - was she able freely to agree in that situation, to sexual intercourse with that young man? Did she have the capacity to consent? You know, we don't say for example where there's a burglary - Oh well, you left your window open, you know, so what can you expect, that isn't a burglary. And by the same token, we don't say, you got yourself drunk, so what can you expect.
AMELIA V/O: In fact, the law had only recently been changed to toughen up the issue of consent. The Sexual Offences Act 2003 states that permission for sex could not legally be given if a person is -
subjected to violence;
detained against their will;
is asleep or unconscious;
or has been unknowingly drugged.
But crucially for Judith, it says nothing about a victim being too drunk to consent. Influential bodies like the Law Commission, had advised the Government to include such an alcohol clause. But the Home Secretary at the time, David Blunkett, dismissed the idea.
DAVID BLUNKETT: We do not want mischievous accusations being made in circumstances where someone genuinely believed that they had reasonable and honest belief of consent.
Vera Baird with Amelia
AMEILA: Isn't that a fair point?
VERA BAIRD: No, it is not a good point. There is scant evidence of mischievous complaints of rape. They are very very low, and women who are drunk and taken advantage of have got to be protected. How has somebody who's very drunk got the capacity to consent, they simply haven't. But judges haven't looked at it like that. They've said, if she was drunk in effect she's much more likely to have done all the things that they want to blame her for, in the first place, and they've held it against her. So I think it does need setting down, that if you're drunk and incapable, you're just as incapable of consenting as if you're unconscious, or incapable through any other cause.
AMELIA V/O: It maybe too late for Judith but the controversial outcome of her case has been a catalyst for a fresh debate about consent.
MIKE O'BRIEN: I'm now consulting on whether we need to have a further change in the law so that the jury could consider whether if a woman was so drunk that she couldn't remember or didn't have the capacity to consent, whether that was rape or not. It should be a decision, in my view, in the end of the jury.
AMELIA V/O: But that might not be the answer to the low conviction rate either. A recent Amnesty survey, revealed that one-third of those asked believe a women is in some way responsible if she's raped when drunk or flirtatious.
It would only take a few members of a jury to hold such views - and a guilty defendant could walk free.
JENNIFER TEMKIN: One judge that I interviewed said that the problem with juries in some cases is they do not decide cases on the facts. And this judge was saying, well what they are doing is coming into the courtroom with these preconceived notions about what a "real rape" is, which is all about these blaming attitudes um towards women, you know, "Why did she get into his car?" "Why did she dress like that?" "She brought what happened upon herself". And as a result are acquitting people who, on the facts, are clearly guilty of rape.
AMELIA V/O: Tony Blair has suggested lowering the standard of proof in terrorism and organised crime cases to help secure convictions. But there's no plan to do the same with rape, and some of the Government's legal advisors reject the Prime Minister's idea - as do some barristers.
KIRSTY BRIMELOW: If you change the standard of proof just to get a conviction, what will happen is you will have innocent people going to prison, and probably sitting in prison for years, for something that obviously they haven't done.
AMELIA: But the balance is wrong. I mean we are protecting guilty people at the expense of the victims.
KIRSTY BRIMELOW: I think the balance always has to be to ensure that innocent people don't go to prison. Our system is revered around the world as being a fair system, and unfortunately if that means that guilty people walk free, then that is the price you pay for ensuring that an innocent citizen er isn't locked up for many many years.
JUDITH: If there's no deterrent out there for rapists, they're going to think - well, let's face it, I'm probably going to get away with it anyway, even if I did get arrested. But I mean what kind of message are you sending out to people?
AMELIA V/O: The government has proposals to improve the experience of rape victims in the justice system. A code of practice - a victims' commissioner - limits on the use of a victim's personal history - and an idea to allow expert witnesses to give evidence in court about the traumatic effects of rape. But even if the proposals are accepted, misconceptions about rape, prejudice about some women's behaviour, and institutional pessimism, seem certain to ensure that at least some guilty men will continue to walk free.