The women fighting to make rape trials fairer
MP Harriet Harman QC and Dame Vera Baird QC are campaigning for a change in the law to protect rape victims in court. Anna Silverman reports
it took four decades for Hesta* to find the strength to speak about the time she was raped as a child. She eventually decided that giving evidence at the trial of her rapist was worth the pain of reliving the ordeal. If he was convicted, it wouldn’t just be justice for her, but for the five other girls he’d abused. But when, without warning, her previous sexual history (an earlier rape by another man) was dredged up in front of the courtroom, she was speechless with shock.
‘I got tunnel vision and couldn’t see,’ she says of the day in November when a defence lawyer brought up the ‘ irrelevant and private’ detail. ‘Everything went blank and it totally numbed me. I couldn’t believe he had thrown that in my face. It had nothing to do with this trial.’
Hesta, now 54, said she already felt intimidated by being in court and had been afraid that her previous sexual history might be raised. ‘ When he said it, I actually blurted out, “I’m not here about that,”’ she says. ‘I felt like he was trying to make out that this rape was my fault and that I was “damaged goods”. It was degrading hearing it raised in front of a room full of strangers.’
Unfortunately, Hesta’s experience is not uncommon, which is why two former Solicitor Generals – Labour MP Harriet Harman QC and Dame Vera Baird QC, who is Police and Crime Commissioner for Northumbria – are leading a cross-party campaign to change the law to stop rape complainants’ previous sexual history being unfairly used against them in court.
Research by Baird, based on court observers watching 30 rape trials over 18 months in Newcastle Crown Court, shows rape complainants’ previous sexual history was used as evidence in 37% of trials. In the majority of these cases it related to sexual activity with men other than the defendant. In one trial, a defence barrister even said it was to show ‘she is an adulteress’. Rape Crisis South London also found sexual history being used in almost half of the trials they attend with victims.
‘ This is not what women should have to put up with and it’s not what Parliament intended,’ Harman tells Grazia. ‘And it’s not a fair trial if prejudicial, irrelevant evidence is allowed in. We don’t hear about the many cases where the complainant can’t put her case before a jury or the cases that can’t be made because she can’t stand the mud that’s thrown at her.’
Harman and Baird are leading calls to take previous sexual history off the table entirely, unless it concerns sex with the defendant. ‘If the complainant doesn’t have confidence in the justice system, if it doesn’t protect them or enable them to give evidence, then rapists go free and that’s a miscarriage of justice,’ Harman says. ‘ It’s dangerous because it will deter people from coming forward and reporting rape if they think their previous sexual history will be dragged through court.’
In 1999, the Labour Government passed Section 41 of the Youth Justice and Criminal Evidence Act, restricting the use of complainants’ sexual behaviour with other men as evidence of consent, except in very limited circumstances. But Harman and Baird say this law isn’t working and are calling for it to be reformed in the impending Domestic Violence and Abuse Bill. They want to insert new protections preventing ‘prejudicial, irrelevant’ evidence being used. ‘ This law was intended to end the use of the promiscuity and dishonesty myths but those myths still exist and defendants use them in front of juries,’ says Baird. ‘[ The law] was not strong enough and is not being abided by,’ Harman adds.
Concerns about how previous sexual history is used in rape trials emerged after the acquittal of the footballer Ched Evans in 2016. The jury in Evans’ retrial heard evidence from two men who testified about the complainant’s sexual preferences and the language she used during sex. ‘ We cannot allow rape trials to be inquisitions into the complainant’s sex life,’ says Baird. ‘ The fear of a complainant being confronted with evidence relating to sex with other men is, and has always been, a huge deterrent to reporting rape.’
In January, Hesta’s rapist, Christopher Hartley, 57, of Warrington, was sentenced to 13 years in prison for historic child sex offences. Fortunately, the fact that her previous sexual history was used in court didn’t stand in the way of justice being served. But until the law has been amended, justice for other victims of rape is at risk.
‘Even if a girl has been a prostitute before, it shouldn’t matter. It’s irrelevant,’ says Hesta. ‘All through my life, people have taken advantage of me. Then I came to court and it felt like the defence lawyer was also taking advantage of me. I know he has a job to do but it shouldn’t be at the expense of degrading me.’