Law Commission seeks views on proposals to counter effects of rape myths in sexual offence trials

• Law Commission publishes proposals to improve the way that evidence is used in sexual offences prosecutions.
• Proposals aimed at countering the effects of rape myths on trials, improving the treatment of complainants, and ensuring a fair trial for those accused of sexual offences.
• Views sought from legal experts and the public in new consultation.

The Law Commission has today published proposals for reform of sexual offences prosecutions.

Every year in England and Wales, around 128,000 adults – over 90% of them women – report to the Crime Survey of England and Wales that they are victims of rape or attempted rape. The trial process is an integral step to accessing justice.  

As part of its 2021 End-to-End Rape Review, the Government asked the Law Commission to examine the law relating to the use of evidence in sexual offences prosecutions. While progress has been made, evidence shows that the criminal justice process for rape and serious sexual offences is still flawed, and more can be done to ensure sexual offences are tried justly, without traumatising complainants.

In its new consultation paper, the Law Commission sets out proposals aimed at countering the effects of rape myths and misconceptions on the trial process, treating complainants humanely, and ensuring that defendants receive a fair trial.

Rape myths are genuine and sincere beliefs that are factually incorrect and often derived from stereotypes. For example, common myths are that rape will always be reported promptly, or that victims will be visibly distraught when describing what happened. These myths do not reflect the variety of experiences of and reactions to sexual violence. However, evidence shows that rape myths can contaminate the trial process. Further myths are explained below.

The Commission’s proposals seek to address the way that evidence, such as a complainant’s counselling records or sexual history, can be used to undermine their credibility by relying on myths and misconceptions. The Commission therefore proposes methods to help jurors better understand such misconceptions and calls for greater judicial oversight of how evidence is obtained and used.

Evidence in sexual offence prosecutions is also at times utilised in unnecessarily intrusive and traumatising ways, beyond the limits of appropriate challenge by the defence. However, currently, complainants have little control over the way their sensitive personal information is used. The Commission therefore proposes measures that would help complainants understand their rights and allow them to be more involved in decisions about their personal records and evidence of their sexual behaviour.  

The proposals will protect the defendant’s right to a fair trial by ensuring that they can present evidence relevant to their defence without causing unnecessary trauma to the complainant.  

Commenting on the new proposals, Professor Penney Lewis, Criminal Law Commissioner, said:

“The last few decades have seen incremental progress in how sexual offences are investigated and tried in England and Wales. However, 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.

“Our proposals are therefore aimed at improving the way that evidence is used in sexual offences prosecutions to do justice to complainants and defendants – fairly, compassionately, and with a better understanding of consent and sexual harm.”

Proposals set out by the Law Commission in its consultation paper include:

• A bespoke regime for access, disclosure and use of complainants’ personal records, including counselling notes. This regime would include judicial oversight of whether and how these records should be used, considering factors such as the complainant’s right to privacy and the importance of the records to the defendant’s case.
• New framework for restricting the use of evidence of complainants’ sexual behaviour and compensation claims. When deciding whether to admit this type of evidence, the judge would consider factors such as the risk of perpetuating myths and misconceptions and the defendant’s right to a fair trial.
• Giving complainants an automatic entitlement to measures to assist them to give evidence, such as giving evidence over live link, or in private (with an exemption that allows press attendance).
• Independent legal advice and representation for complainants, which would allow them to make informed decisions about the way their evidence is given and used, and to participate in decisions about the use of their sensitive personal information.
• The paper also considers the use of educational tools that could help minimise the impact of rape myths on jury decision-making. These could include, for example, the use of expert evidence to explain the complex physical and psychological responses to sexual violence.

Next steps

The Law Commission is seeking responses to its consultation paper by 29 September 2023. We welcome responses from anyone affected by, or with knowledge of, the issues covered; including those who have experienced sexual violence or support people who do, and those who have experience of the criminal justice system in sexual offending.

Terminology

To reflect the legal process, including the fundamental presumption that anyone charged with an offence is innocent until proven guilty, we use the terms “defendant” and “complainant” within the context of the trial process. Once a defendant has been convicted, we use the terms “offender” and “victim”.

When we speak generally about those who have experienced sexual violence, we use the term “victims”.

Rape Myths

Access the consultation paper

An embargoed overview of our proposals can be accessed here and an embargoed summary of our paper is available here.

The full report will be published on this page of the Law Commission website on 00.01 Tuesday 23 May.