When asked whether I would be comfortable working on a case of alleged false allegations of rape, I felt conflicted, predominantly owing to the tendency to believe the alleged victim or complainant in such cases. As a law student, I understand the pivotal importance of the presumption of innocence, a golden thread running through our legal system. I respect the need to protect our human rights, and the importance of due process to ensure this for defendants. But as a woman, I have grown up experiencing sexualization from an age at which my innocence deserved to be protected. I have comforted fellow women after men have felt a perverse sense of entitlement to their bodies. Myself, and every woman I have a personal relationship with, has had at least one experience which has instilled a wariness of men in them. In pursuing my legal values, am I doubting the truth of the women making the claims? It would be negligent not to recognise that women may have been silenced and dismissed over these matters in the past. This essay will explore whether defending someone accused of rape or sexual abuse compromises the legitimacy of my claims of advocating for other women.
To begin this, I will delve into two cases which received varying degrees of media prominence and demonstrate either side of my ethical quandary. The first is the case of Sarah Everard; a name well known across the UK. Wayne Couzens, a police officer, kidnapped, raped, and murdered Sarah (see: https://www.bbc.co.uk/news/uk-58746108 ) A man in a position representative of safety, was responsible for her rape and death in a public place. This elicited panic in the female population of the UK, and even beyond. It provoked the question: If we are not safe with the police, in a public place, then where are we safe? (see: https://www.endviolenceagainstwomen.org.uk/almost-half-of-women-have-less-trust-in-police-following-sarah-everard-murder/). The Metropolitan Police were heavily criticized as there had been three prior cases of indecent exposure linked to Wayne Couzens which they had failed to investigate. It is a viable argument that this would have been preventable if they had listened to those women in the first instance. If men are not held to account at the initial signs of sexually deviant behaviour, the risk of situations such as Sarah’s seriously increase. This case presents a point pivotal to our discussion: The failure to take women reporting their experiences seriously can have devastating consequences. Society promotes the stereotype that women are exaggerating, and men are more credible. Rape Crisis claim that 5 in 6 women whoare raped do not report, the majority admitting it is due to ‘embarrassment’, or ‘humiliation’. From this standpoint, it feels like an unfathomable risk to lessen the emphasis placed on accusations, for fear of deterring reporting of rapes even further (see: https://rapecrisis.org.uk/get-informed/statistics-sexual-violence/). Therefore, tilting of the scale in the favour of women in relation to claims of sexual crimes could create a space for women to speak vulnerably without dismissal or doubt, and taking claims seriously proves invaluable in cases such as Sarah Everard’s.
At the same time, on the other end of the spectrum lies the case of Andrew Malkinson. He was sentenced to life in prison for rape despite there being no DNA evidence. The CCRC refused his first appeal in 2006; subsequently in 2007 the DNA found on the victim was proved not to match Malkinson. The CCRC did not pursue any further forensic testing and continued to refuse any appeals. In 2020, after 17 years in prison for a crime he did not commit, Andrew Malkinson leaves prison. After the police arrest another man for the crime in 2023, his case finally allowed into the Court of Appeal, and his conviction overturned (see: https://www.theguardian.com/law/2023/aug/15/dna-and-injustice-a-timeline-of-the-andrew-malkinson-case). This loss of liberty is a heinous infringement of his human rights. It represents the opposing side of the dichotomy, if the testimony of women in rape trials is afforded too much influence, we abandon the right to a fair trial by forming an internal bias towards the alleged victim or complainant. Rebalancing the scale to a degree where the man’s account is suppressed may be overcompensating for previous injustice. In attempts to create equality, we risk sacrificing the liberty of innocent individuals. We should by no means downplay the role that the inadequacy of the CCRC plays in Malkinson’s case and many others, but in the context of this essay the element most unfathomable is the steadfastness of the alleged rape victim’s testimony. He did not match the description of a; deep scratch’ to his face, nor did he match the DNA evidence that later emerged, yet justice was seen to be served because someone had been sentenced. Claims predicated on ‘his word against hers’ basis should arguably be especially easy to appeal, as the convictions are nowhere near as safe as one founded upon physical evidence. Furthermore, loss of freedom is not the only serious consequence, the label of ‘rapist’ can completely debilitate a person’s life where falsely alleged. They may lose their relationships with loved ones, their jobs, and must live with this stigma. The impact that even an accusation alone can have on an individual is too dangerous to permit the ‘believe the victim’ narrative to prevail.
In rape cases, the aim is securing a prosecution, owing to the limited number of cases which are brought to court. As members of a jury, or even as a barrister or judge, it is extremely challenging not to let first hand experiences cloud judgment. In theory, we know that it is not all men, but it is enough men to mean that these stories are too easily believable. Statistics by Rape Crisis claim that 1 in 4 women are raped or sexually abused in their adult lives, but only 2.2% of the rapes reported from June 2022-July 2023 were charged (see: https://rapecrisis.org.uk/get-informed/statistics-sexual-violence/). Even less than this were prosecuted, demonstrating why it may seem preferable to push for prosecution in these few cases that do reach court. It feels like a small slither of justice within the wider context of the plethora of unreported or uncharged rapes occurring in society. However, these prosecutions should not be reached by disregard of due process measures; it is an individual’s fundamental right under Article 6 of the European Convention of Human Rights that they must have a fair trial (see: https://www.echr.coe.int/documents/d/echr/convention_ENG). Otherwise, prosecutions in these instances create further injustice, rather than delivering justice for women holistically.
It is a taxing exercise for me, as a woman, to look at a man accused of rape and approach the case objectively, appreciating that my negative encounters with other men do not mean this man is guilty. It is similarly difficult to believe that another woman would lie over something which carries such destructive potential, but this rose-coloured perception is not realistic. Every person deserves a fair trial, to be heard and judged in a court of law rather than condemned before their case has even been presented. Each case should be approached individually, it is dangerous to prejudge without having heard the facts at hand. The ‘believe the [alleged] victim’ narrative feels the most comfortable position to take, but in an adversarial system it must be refuted in favour of upholding the presumption of innocence.
Therefore, the logical conclusion is that we must not let bias prevent due process in every trial. It is undeniably difficult in alleged rape cases, where the nature of the offence places often two people against each other with little concrete evidence, not to believe the party that you relate to by default. But to allow this to occur is not ‘rebalancing the scales’ but, rather, undermining the vigorous procedures in place to determine guilt. An innocent person losing their liberty is not retribution for another man committing rape, and ensuring a thorough trial is the only way of ensuring justice for all parties involved. This is not to say the testimonies of women should not be fully investigated and taken in complete seriousness, but merely that it is not a solution to compromise due process and the presumption of innocence to attain convictions by giving one party’s claims considerably more weight simply due to their historical and current status in society.
By Katie Muntz
Empowering the Innocent (ETI) volunteer
Final year Law Student, University of Bristol
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