I didn’t watch the BBC recreation of a rape trial, The Verdict, partly because that’s far too much like my day job and partly because I’m convinced that anything in which Jeffrey Archer is involved is probably a bad idea. From what I hear of the programme, that certainly held true here, since Lord Archer apparently demonstrated yet again he doesn’t quite understand what oaths mean, since he changed his vote from ‘guilty’ to ‘not guilty’ not because he thought they hadn’t done it but because he wanted to spare everyone a re-trial; honestly, what part of swearing to ‘reach a true verdict according to the evidence’ didn’t he understand?
Rachel has an interesting piece about the programme, though I think she’s mistaken about videos of the complainant’s initial police statement and expert testimony on traumatic reactions being admissible — the ideas were proposed but haven’t yet been adopted; indeed, they got a resounding thumbs-down from the Council of Circuit Judges a few weeks ago.
I’m not at all sure, by the way, what video evidence would add to the trial procedure. We already have it for young and vulnerable witnesses, as an alternative to the ordeal of giving live evidence in chief in the witness box, and it never seems to me particularly satisfactory. It usually has to be heavily edited, partly to make it comprehensible to the jury — police interviews, especially if the witness is distressed, tend to be very discursive and confusing when you read the transcript, and they often contain questions or lines of questioning that wouldn’t be allowed in court. Courts do take evidence of ‘immediate complaint’ — that the complainant complained to the police or to a friend shortly after the alleged rape (if she did) can be taken as supporting her allegations, though, of course, juries are reminded of the fact she didn’t complain immediately doesn’t necessarily mean the allegations are untrue. And the witness to the immediate complaint can — often is — asked about the complainant’s demeanour. Quite simply, I don’t think that seeing a video of the initial interview would help get convictions; if anything, I suspect it would make them harder to obtain since a distressed victim’s confused account of what happened would tend to confuse the jury, too, and would certainly invite cross-examination about the inevitable discrepancies between the initial interview, the statement and the live evidence in court. And, while I’m pretty sure that most of the acquittals in rape cases I’ve seen have been because the jury weren’t sure enough to convict rather than because they positively disbelieved the complainant, I have to say that one of the few times I’ve been pretty sure the complainant was making it up — because both forensic evidence and some of her answers in cross examination very seriously undermined her account — was also a case in which her initial 999 call was played to the jury precisely because she seemed so distressed when she made the call.
In her article Rachel gives an example of a case where someone would almost certainly be able to escape conviction for rape. I agree; as it happens, a friend of mine some years ago found herself raped in very similar circumstances to those imagined by Rachel. The problem, though, is this. On my friend’s account she met this chap in a club, went back to his flat, got involved in some seriously heavy petting and then decided she’d had enough and wanted to leave. Now, certainly you may say she was very ill-advised — incredibly stupid, even, but most of us have done stupid things when drunk — to put herself in that position, but it was still her perfect right to refuse sex and what happened next was rape. The problem is, though, not that a jury might think that she ‘led him on’ or ‘she was asking for it’ but that I don’t see how any jury could — assuming he raised the defence of consent — be sure that, in fact, she hadn’t consented at the time and then later regretted it. I believe her, but that’s because she’s my friend and I don’t think she’d lie to me about something like that, but with the best will in the world I don’t see that a jury would necessarily take the same view.
My late wife twice found herself in a not-dissimilar predicament, apparently; on both occasions she’d invited someone (once a colleague and once a neighbour) round for coffee and they’d got the wrong idea about this very attractive blonde’s intentions. The first chap she convinced she really meant ‘no’ by breaking a pub ashtray over his head and the second chap desisted when, despite being the kindest and gentlest of women, she calmly promised him — and meant it — that, while she didn’t want to maim him, if he didn’t stop she was going to stick her thumb in his eye. That you can thus win most fights is, of course, a lesson one learns at the better sort of public school (though my wife learned it from her father, who’d been a partisan in WW2 before escaping here, and had picked up a few survival skills on the way); the astonishing thing is how few people are prepared to do it.