A Law Commission consultation on ‘Evidence in sexual offences prosecutions’, published this week, proposes changes to counter common misconceptions about rape and improve the treatment of complainants.
For example, complainants often fear that deeply personal material will be revealed, even where it is not relevant. The commission therefore proposes a ‘bespoke regime for access, disclosure and use of complainants’ personal records, including counselling notes’, with judicial oversight of whether and how these records should be used. The judge would consider the complainant’s right to privacy, the importance of the records to the defendant’s case, and wider societal interests.
Restrictions would be tightened up regarding evidence of complainants’ sexual behaviour and compensation claims—defence lawyers sometimes suggest to juries that allegations are being made for financial gain. When deciding whether to admit such evidence, the judge would consider factors such as the right to a fair trial and the risk of perpetuating myths and misconceptions.
Complainants would be offered independent legal advice and representation so they can make informed decisions on the way their evidence is given and take part in decisions about the use of their sensitive personal information.
The Law Commission also considers the use of educational tools to minimise the impact on jury decision-making of myths about rape, for example, through expert evidence.
Common myths include that victims will be visibly distraught when describing what happened, and that rapes will always be reported promptly.
Finally, the commission asks whether trials should be held in specialist courts with personnel trained in trauma-informed practices.
Professor Penney Lewis, criminal law commissioner, said: ‘The way that the criminal justice system handles rape and serious sexual offences still leaves prosecutions at risk from the impact of pervasive rape myths, and can often cause distress and trauma.’
Law Society president Lubna Shuja said it was ‘vital’ that complainants’ experience of the trial process be ‘as trauma-free as possible’.
Responses to the consultation are welcomed until 29 September 2023, and can be submitted here.
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