Survivors of sexual violence are let down by the criminal justice system – here’s what should happen next
Simon
McCarthy-Jones, The Conversation, March 29, 2018
How well
do criminal justice systems treat survivors of sexual violence? The answer is
not only important to survivors. It also signals to
society how sexual violence should be viewed.
do criminal justice systems treat survivors of sexual violence? The answer is
not only important to survivors. It also signals to
society how sexual violence should be viewed.
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Seeking
justice. Shutterstock |
The poor
treatment of survivors, when combined with few
perpetrators being convicted and a perception of
lenient sentencing, could tacitly signal to society a “decriminalisation
of rape”. This cannot be permitted.
treatment of survivors, when combined with few
perpetrators being convicted and a perception of
lenient sentencing, could tacitly signal to society a “decriminalisation
of rape”. This cannot be permitted.
Many
survivors in the United Kingdom, Ireland and the US (which all have adversarial legal systems)
have negative
experiences of the criminal justice system (CJS). Many also have
positive experiences. But certain key problems are flagged time and
time again.
survivors in the United Kingdom, Ireland and the US (which all have adversarial legal systems)
have negative
experiences of the criminal justice system (CJS). Many also have
positive experiences. But certain key problems are flagged time and
time again.
There is
an urgent need to discuss and rectify these.
an urgent need to discuss and rectify these.
Problems
entering the system
entering the system
The first
problem with the CJS for survivors is that most never enter it in the first
place. Sexual assault is the most unreported crime
against the person. Over 80% of survivors never report
their experiences to the police.
problem with the CJS for survivors is that most never enter it in the first
place. Sexual assault is the most unreported crime
against the person. Over 80% of survivors never report
their experiences to the police.
The
reasons for this are often rooted in
fear. Fear of disbelief, of unjustified blame, of retribution, of
re-traumatisation, of the impact on their family and community and of being let
down by the system. One Irish study
found the CJS had “assumed such terrible proportions in the minds of some rape
victims that they would prefer to forego any prospect of justice rather than
engage with it”.
reasons for this are often rooted in
fear. Fear of disbelief, of unjustified blame, of retribution, of
re-traumatisation, of the impact on their family and community and of being let
down by the system. One Irish study
found the CJS had “assumed such terrible proportions in the minds of some rape
victims that they would prefer to forego any prospect of justice rather than
engage with it”.
Even when
people do enter the CJS, many leave it again. Survivors’ first contact with
police is well known to be a “make or
break” stage. A 2006 study
found that more than 80% of rape survivors without advocacy support
felt bad about themselves, and reluctant to seek further help, after their
first contact with police.
people do enter the CJS, many leave it again. Survivors’ first contact with
police is well known to be a “make or
break” stage. A 2006 study
found that more than 80% of rape survivors without advocacy support
felt bad about themselves, and reluctant to seek further help, after their
first contact with police.
In
recognition of such problems, many police forces have committed to improving
training for officers. This seems to be having some positive effects. For
example, a 2015 report
found that 69% of survivors of sexual violence in Ireland who filed
a complaint with police felt the police had treated them sensitively (an
increase of 6% from the previous year).
recognition of such problems, many police forces have committed to improving
training for officers. This seems to be having some positive effects. For
example, a 2015 report
found that 69% of survivors of sexual violence in Ireland who filed
a complaint with police felt the police had treated them sensitively (an
increase of 6% from the previous year).
The
problems at trial
problems at trial
Around 8% of cases
reported to police are taken to trial. Here, survivors face further challenges.
As the psychologist Judith Herman
has noted, “if one set out intentionally to design a system for
provoking symptoms of traumatic stress it would look very much like a court of
law”.
reported to police are taken to trial. Here, survivors face further challenges.
As the psychologist Judith Herman
has noted, “if one set out intentionally to design a system for
provoking symptoms of traumatic stress it would look very much like a court of
law”.
In
particular, cross-examination is frequently cited as retraumatising.
In adversarial legal systems, it is the job of the defence to bring the
prosecution’s case into doubt. In sexual violence cases, the survivor’s
testimony may be the only evidence. This will therefore be the focus of attack
for the defence. This is
typically done by undermining the survivor’s credibility and
reliability, and their story’s plausibility and consistency.
particular, cross-examination is frequently cited as retraumatising.
In adversarial legal systems, it is the job of the defence to bring the
prosecution’s case into doubt. In sexual violence cases, the survivor’s
testimony may be the only evidence. This will therefore be the focus of attack
for the defence. This is
typically done by undermining the survivor’s credibility and
reliability, and their story’s plausibility and consistency.
Survivors
may be accused of lies and fabrication. Rape myths
and stereotypes can be invoked. Detailed questioning can recreate
the powerlessness and terror of the original assault. This is referred to as secondary
victimisation or the second rape. It can have serious consequences
for survivors’ mental health and well-being.
may be accused of lies and fabrication. Rape myths
and stereotypes can be invoked. Detailed questioning can recreate
the powerlessness and terror of the original assault. This is referred to as secondary
victimisation or the second rape. It can have serious consequences
for survivors’ mental health and well-being.
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Rape
myths impact juror decision making. Shutterstock |
Survivors
have to deal with this while potentially suffering from the psychological consequences
of experiencing sexual violence. For example, rape is the most likely form of
trauma to lead to
post-traumatic stress disorder (PTSD).
have to deal with this while potentially suffering from the psychological consequences
of experiencing sexual violence. For example, rape is the most likely form of
trauma to lead to
post-traumatic stress disorder (PTSD).
People with
PTSD will often try to avoid thoughts and feelings about the trauma.
Yet survivors will be forced to address the trauma in excruciating detail in
court. PTSD is also associated with exaggerated feelings of blame, overly
negative thoughts and assumptions about oneself, and difficulties with memory.
PTSD will often try to avoid thoughts and feelings about the trauma.
Yet survivors will be forced to address the trauma in excruciating detail in
court. PTSD is also associated with exaggerated feelings of blame, overly
negative thoughts and assumptions about oneself, and difficulties with memory.
Ironically,
the psychological consequences of sexual violence can be what the
defence uses to undermine survivors’ claims to have experienced
sexual violence.
the psychological consequences of sexual violence can be what the
defence uses to undermine survivors’ claims to have experienced
sexual violence.
What
should happen now
should happen now
Reforms
to the legal system have focused more on improving its effectiveness (for
example, increasing conviction rates) than on increasing its sensitivity to
survivors’ needs. Yet, it has been
questioned whether a prosecution that results in a conviction but
devastates the victim is really a success.
to the legal system have focused more on improving its effectiveness (for
example, increasing conviction rates) than on increasing its sensitivity to
survivors’ needs. Yet, it has been
questioned whether a prosecution that results in a conviction but
devastates the victim is really a success.
The
starting place for improvement is listening to survivors. This can establish what their
needs are, what justice is
for them, and what changes they think are necessary. Obviously, this
will have to be balanced against the rights of defendants.
starting place for improvement is listening to survivors. This can establish what their
needs are, what justice is
for them, and what changes they think are necessary. Obviously, this
will have to be balanced against the rights of defendants.
Survivors
should have legal, psychological and advocacy support. They should be entitled
to separate
legal representation throughout their trial. This can increase
their satisfaction with the process. They should have the support of
an advocate. This can make
survivors less likely to be treated negatively by the police, more
likely to receive medical care and less likely to be distressed by medical
services.
should have legal, psychological and advocacy support. They should be entitled
to separate
legal representation throughout their trial. This can increase
their satisfaction with the process. They should have the support of
an advocate. This can make
survivors less likely to be treated negatively by the police, more
likely to receive medical care and less likely to be distressed by medical
services.
Survivors
should be offered
psychological support throughout their involvement with the CJS.
Courts and juries should be educated on the potential
psychological effects of sexual violence on survivors. This should
include effects that relate to strategies commonly employed by the defence
during cross examination.
should be offered
psychological support throughout their involvement with the CJS.
Courts and juries should be educated on the potential
psychological effects of sexual violence on survivors. This should
include effects that relate to strategies commonly employed by the defence
during cross examination.
For
example, defence lawyers often attempt to undermine the reliability of survivors’
testimony by challenging
them about memory fallibility. Courts may consider inconsistencies,
low detail, errors and omissions in survivors’ memories as undermining their
testimony. However, contemporary
psychological understandings of memory consider this typical. Memory
is not like a DVD.
example, defence lawyers often attempt to undermine the reliability of survivors’
testimony by challenging
them about memory fallibility. Courts may consider inconsistencies,
low detail, errors and omissions in survivors’ memories as undermining their
testimony. However, contemporary
psychological understandings of memory consider this typical. Memory
is not like a DVD.
Beyond
reform
reform
Reform
may not be enough. The adversarial system is designed to achieve justice for
the accused, not the victim. A parallel
system, which decouples the pursuit of justice for victims from the
administration of justice for offenders, could be helpful to survivors.
may not be enough. The adversarial system is designed to achieve justice for
the accused, not the victim. A parallel
system, which decouples the pursuit of justice for victims from the
administration of justice for offenders, could be helpful to survivors.
A shift
to an
inquisitorial system could also help survivors. Here, the state
investigates an event and the persons involved to establish the truth.
to an
inquisitorial system could also help survivors. Here, the state
investigates an event and the persons involved to establish the truth.
And yet,
all this may still be unsuccessful if we don’t remove from society the myths and
prejudice that surround sexual violence. This is work for everyone.
all this may still be unsuccessful if we don’t remove from society the myths and
prejudice that surround sexual violence. This is work for everyone.
