Justice must be seen to be done

An intersectional analysis of observations of Crown Court trials for rape and serious sexual assault.

Ellen Daly

Ellen Daly is a PhD candidate at Anglia Ruskin University. Her research explores the use of rape myths and other narratives in rape and sexual assault trials in England and Wales.

 

In recent years there has been a great deal of media attention paid to the prosecution of rape. Most recently criticisms have frequently centred around the falling prosecution rate in England and Wales. Although reports of rape are increasing, the number of prosecutions continues to fall. This means that many victims are not getting the justice they are seeking through reporting to the criminal justice system. Only a tiny portion see justice, and for victim-survivors from minoritised or marginalised groups the chances of seeing a conviction are even slimmer. This begs the question “why?” – why does it seem that victim-survivors from particular groups are more likely to find justice through the criminal justice system?

Evidence suggests that victim-survivors from particular backgrounds have limited access to justice as a result of structural inequalities and various aspects of their perceived identity (see for example Lovett et al 2007 and Hester 2013). There is little contemporary research that addresses these issues, particularly in the context of criminal court. Criticisms of Crown Court responses to rape and sexual assault often focus on the influence of rape myths on trial practices and outcomes, but very little has been done to explore the links between what goes on in the courtroom and the differences in attrition rates for women from minoritised or marginalised groups. This is what my PhD research seeks to explore.

Rape myths are frequently pointed to as offering an explanation for the lack of justice for rape and sexual assault victim-survivors as a whole, and with good reason. It is well established, through a strong body of research from a range of disciplines, that rape myths are commonly accepted among the general population, including by those involved (or potentially involved) in the administration of criminal justice. This includes research that evidences the existence of rape myths at trial and their influence on jurors.

Rape myths have featured in every rape and sexual assault trial I have observed so far and have usually had the function of either blaming the victim or excusing the defendant’s alleged actions. They are utilised as a tool for casting doubt on victim-survivor testimony and to bolster the defence of the accused.

In my observations I have heard the behaviour of victim-survivors being questioned, implying that but for their actions the incident would not have occurred. I heard a victim-survivor being questioned on her drinking habits and binge-drinking, even though a central argument to the defence case was that she was not drunk on the night in question. These arguments draw on rape myths that seek to minimise the behaviour of the accused by positioning the victim-survivors as bearing responsibility for what happened to them.

I have heard victim-survivors being positioned as liars who are seeking revenge or are embarrassed and regretful. In the courtroom, these myths that position women as liars rely on the misconception that false allegations of rape are common, when actually we know that not to be true.  These lines of argument may be particularly pertinent to juror decision-making when considered against the backdrop of mass media coverage regarding collapsed cases.

These myths can be applied to all victim-survivors though, so their presence doesn’t necessarily answer what could be happening to impact specifically on those from minortised and marginalised groups. Provisional findings from my research indicate that one possibility is that narratives around social class are used in trial and that they intersect with the gendered rape myths that are already known to exist in the courtroom.

There are no direct references to social class, it is more subtly implied through small seeds sown throughout the trial. There are frequent references to victim-survivors and defendants being uneducated and unintelligent, which come against the context of evidence which establishes that they live in an impoverished town, on a council estate, that they receive state benefits, are unemployed or are in insecure work. All of which are things that are reflective of working-class stereotypes in our society. The work of Charles Murray in the 1990s on the so-called ‘underclass’ in Britain and its subsequent and continued uptake by the media and politicians, provides a starting point for arguing that stereotypes often portray working-class people as poorly educated or of lower intelligence compared to those deemed middle- and upper-class.

In my observations, defendants being of low intelligence was being presented by the defence as an inability to lie or pretend, positioning them as the credible party the juries should believe above the victim-survivors. To illustrate, two trials included text message evidence of what could be read as confessions to the events in question. In these trials the specific wording used by the defendants was thoroughly picked apart by both prosecution and defence, with the prosecution proclaiming that the defendants’ explanations were ridiculous. Whilst on the other hand, the defence in both cases rationalised the choice of words as being because the defendants are uneducated or unintelligent, that his words were not intended as a confession to rape or sexual assault and can simply be explained by his poor grasp of English grammar and vocabulary. These narratives are taking the counter-side of the ‘women lie’ rape myth, by suggesting that these ‘unintelligent’ working-class men are too stupid to lie convincingly and therefore must be believed.

Other narratives related to social class draw on middle-class ideals of respectability. Victim-survivors are portrayed as not conforming to these standards of respectability, whether that be through their drinking habits or the way they present themselves. We needn’t look much further than reality TV to evidence how young women, particularly those from working-class backgrounds, have been portrayed as heavy drinkers whose behaviour and ways of dressing are used to depict them as ‘easy’ and ‘up for anything’ (recent examples include Geordie Shore and TOWIE). This of course links to gendered rape myths around respectability, which are based on middle-class ideals.

The findings I’ve outlined here perhaps begin to answer how some groups of victim-survivors appear to have a lower chance of seeing a conviction in their cases. Narratives drawing on victim-survivors’ and defendants’ perceived identity or membership to a particular group, which in the examples outlined here related to social class, intersect with gendered rape myth narratives. Therefore it is not only rape myths that play a role in undermining the credibility of victim-survivors and bolstering the presumed innocence of defendants. The reality inside the courtroom is much more nuanced than that. Myth-busting measures are unlikely to have the desired effect without taking account of broader structural inequalities. Fair justice cannot come from a system where convictions and acquittals can be made based on myths and stereotypes.

Contact

Ellen Daly, Anglia Ruskin University

Email: Ellen.daly@pgr.anglia.ac.uk

 

Copyright free images courtesy of the author

 

 

A closing space for civil society?

Francesca Kilpatrick reports from a roundtable discussion on the criminalisation of dissent held at the University of Brighton

Francesca Kilpatrick

Francesca Kilpatrick reports from a roundtable discussion on the criminalisation of dissent held at the University of Brighton.

 

 

 

On 1 March 2019, the Centre for Spatial, Environmental, and Cultural Politics (SECP) at the University of Brighton, financially supported by the British Society of Criminology, hosted a seminar and roundtable discussion entitled Criminalising Dissent: A Closing Space for Civil Society. The event was organised by BSC members Roxana Cavalcanti and Raphael Schlembach, as well as Deanna Dadusc and myself.

The conference gathered lawyers specialising in protest law, activists and academics to consider the growing trend of the criminalisation of protest and activism, and the relationship between protest and criminal justice. This trend has been researched extensively in North America and Europe, but the research capacity in the UK is more limited. This area is particularly deserving of renewed attention since the past decade saw the UN Special Rapporteur for the Rights to Freedom of Peaceful Assembly and of Association identify a ‘closing space for civil society’ in the UK, with specific concerns raised about counter-extremism strategies, surveillance of political activists, policing of protests and the Trade Union Act.

Event attendees heard about the ongoing undercover policing inquiry, the police role in defining acceptable dissent in the anti-fracking protests, and the legislation battles surrounding the Stansted 15 trial.

Lydia Dagostino, Director of Kellys Solicitors in Brighton and an experienced civil liberties lawyer, led the first discussion. Her talk on the undercover policing inquiry set out the current status of the almost 10-year investigation into police spying activities on over 1,000 groups, some of which are still unknown, including grieving families for justice, trade unions and activist collectives. She detailed the public dissatisfaction with the legal proceedings, and the resistance of the police to public scrutiny. This transitioned into a discussion on the constructed narratives of the inquiry; ‘good’ core participants (grieving families) versus ‘bad’ core participants (direct action protestors), and the police as victims of the inquiry suffering more than those spied upon.

Valerie Aston (University of East Anglia) and Will Jackson (Liverpool John Moores University) led a spirited second discussion on police responses to anti-fracking protests. Their research, some of it in collaboration with the Network for Police Monitoring, to track anti-fracking policing revealed that academic work suggesting an increase in human-rights based policing behaviour does not universally reflect protestors’ experiences. They discussed how anti-fracking protest is constructed as violent and criminal, with large arrest numbers being cited as proof of police necessity, when closer examination reveals most arrests were for non-violent behaviour. They also outlined various police methods of defining and punishing ‘unacceptable’ protest, including involving counterterrorist forces, as well as restraining orders on acquittal even for not-guilty verdicts.

Following and building upon discussion of these concerning developments, Graeme Hayes (Aston University) led a third session on the Stansted 15 trial and the new ways legislation is being used against activists. He explained how the Aviation and Maritime Security Act (AMSA) 1990 introduced after the Lockerbie bombing was used to construct airports as sites of democratic exception, as being airside without authorisation was argued to be inherently risky and endangering life by taking up police resources. He also discussed attempted use of a ‘necessity defence’ by the Stansted 15 as a depoliticised defence, and raised the question of how to critique wider practices and structures.

This provoked a wider discussion on the implications of certain legal defences, for example the ‘frack-free three’ successful use of a ‘good character defence’. Issues over Extinction Rebellion’s use of the ‘necessity’ guilty plea were also raised in relation to the youth climate strikes, as the child legal system is designed to be escaped via a not-guilty plea.

The afternoon sessions began with a workshop, with small groups of 2-4 identifying emergent themes and questions, which were then collated into displays that informed a wider group discussion. Emergent themes included:

  • Legitimacy in protest and policing
  • Constructing the activist as ‘good’ or ‘bad’
  • Surveillance/monitoring and data collection on protestors
  • The legal process as a disruption or punishment
  • Construction of protest as inherently violent
  • Use of counterterrorist forces
  • New use/abuse/misuse of existing laws and defences
  • Case law designed for crime being used for activism

These themes provoked discussion surrounding the political roles of the police and the diffusion and hybridisation of police functions throughout the state; disabled activists referred to the DWP, youth activists and mothers with children referred to social services, the NHS as a border force in data collection and so on. Finally, it was concluded that police-academic partnerships make it difficult to write and teach critically about police behaviour. These partnerships are common in the field of policing studies and provide increased data access, but this collaboration can be restrictive as any critique by the researcher risks damaging the relationship and preventing further study.

The last session of the conference addressed outcomes and potential for further collaboration between attendees.

Finally, the event’s collection of abstracts and short articles was highlighted as particularly useful.

All of the discussions throughout the day highlighted the need for combined expertise in addressing this important trend in contemporary criminal justice and protest behaviour. We hope all attendees found the promise of further collaboration to answer these questions as exciting as we did.

 

Also published on the SECP blog.

Contact

Francesca Kilpatrick is a PhD student at Brighton University, looking at the securitisation trend in UK climate change policy and how this impacts climate activism and protests.

Email: F.Kilpatrick1@uni.brighton.ac.uk

Twitter: https://twitter.com/ecofrancesca

Images: courtesy of the author and Flickr

Unfinished Business: Moving beyond the Australian National Apology (2008) towards Indigenous justice

In 2008, a National Apology was offered on behalf of the Australian Government to the Indigenous people of Australia, particularly for the Stolen Generations. Although the apology was constructed under the guise of reconciliation, it represented a shift in political discourse with regards to strategies of governance. Over a decade later there is much unfinished business which needs to be addressed in the move towards Indigenous justice and a united Australia.

Sharon Hartles photoSharon Hartles is a MA Postgraduate Crime and Justice student with the Open University.  She has an interest in crimes of the powerful, including state and state-corporate crime.  In an explicit attempt to move beyond criminology, she draws upon a zemiological approach to evidence the social, political and economic context in which crime is produced and interwoven into society via socio-economic inequalities.

 

On the 13th February 2008, the seventy-third day of his Prime Ministership and his first act of office, the then Australian Prime Minister Kevin Rudd (on behalf of the government) moved a motion of Apology to the Indigenous Australians in which he stated: “For the pain, suffering and hurt of the stolen generations, their descendants and for their families left behind, we are sorry”. Dominant mediated discourse formulated The National Apology in order to offer the spirit of healing, to enable a future in which a new page in its history could be re-written: a future in which Indigenous and non-Indigenous people are reconciled and united as one Australian nation. For this reason, the 13th February 2008 was deemed to be a monumental day in Australia’s history. Selected Indigenous voices celebrated the occasion declaring how the apology had changed the history books for Aboriginal people.  On the tenth year anniversary of the National Apology, Australian Government sponsored propaganda commemorated what it had achieved so far in its  journey towards reconciling the nation. However, a removal of the rose tinted glasses reveals an alternative version of the ‘truth’.

The National Apology went firmly against the stance held by Kevin Rudd’s predecessor John Howard during his time as Prime Minister, March 1996 – December 2007, who refused to say the word sorry on the basis that Australians of today are not responsible for the actions of an earlier generation and he “did not subscribe to the black armband view of history”. Moreover, archived and seemly forgotten was the Northern Territory National Emergency Response Bill 2007 (NERB). Extreme authoritarian and totalitarian proposed interventions deemed a justified response to tackle the Aboriginal Problem. Programmes incorporated the following: a five year takeover of sixty Indigenous communities; soldiers and police were to oversee and enforce alcohol and pornography bans; quarantining of welfare payments for the purpose of ensuring money would be spent on necessities, and furthermore the compulsory testing of Indigenous children for signs of sexual abuse.  The NERB was the emergency response to address the serious problems highlighted in the Little Children are Sacred, 2007 report.  Apparently, the protection of children from ubiquitous social harm and abuse is of paramount concern to all Australians…  All Australians except those Indigenous communities who resided in the Northern Territory!  Incredulously, less than six months prior to the National Apology the NERB reflected populist and dominant state rhetoric which was clearly entrenched in colonial, imperialistic and white supremacist ethnocentrism.  With little irony, all of this was swept under the carpet with the election of a new Australian Prime Minister and government. Furthermore a disclaimer denounced this discourse to be that which was authorised by ‘previous’ Ministers, Parliamentary Secretaries and departments. In this way previous hegemonic ideology was excused.

With this in mind, a critical viewpoint may suggest that the offered National Apology was constructed in part to appease the widespread backlash and public outrage incited by the proposed NERB. Moreover, the National Apology constructed under the guise of reconciliation merely represents a shift in political discourse. Instead of favouring a crime-control approach taking the form of the NERB, the Australian Government shifted its approach to governing the Indigenous population through a social welfare approach, concealed under the veil of reconciliation.

Kevin Rudd, in his role of Prime Minister and on behalf of the new government offered an apology to the Indigenous people in atonement for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country. Nevertheless, lessons have not been learnt and the practice of removing Indigenous children from their families persists. 17,664 Indigenous children were in out-of-home care in 2016-17, compared with 9,070 in 2007-08. Therefore this equates to a staggering 80% removal rate increase between 2007-08 to 2016-17, from 32.7 per 1,000 to 58.7 per 1,000. Furthermore, in contrast to the ten year anniversary propaganda promoted by the Australian Government, a reconciliation progress report published by the Australians for Native Title and Reconciliation (ANTaR) (2010) offered an alternative truth. The ANTaR report noted the government failings to advance on the pledges in its reconciliation blueprint; making six recommendations to address this and ‘close the gaps‘. Eight year later (2018) ANTaR’s review highlights the governments continued drift away from the commitments it made in the original proposal.

And what of the constructed offered apology?  It was a very small step in the right direction, insofar as it partially acknowledged the brutal destruction of Aboriginal society which non-Indigenous populations has systematically and progressively erased from collective memory, referred to as the Great Australian Silence. However, can a partial half-truth or a historical revision of past events really unite the Australian nation? The constructed National Apology was flawless in its meticulous choice of discourse, and exemplified strategies of state-denial and state omission. ‘Mistreatments, mistakes, injustices, wrong-doings of the past’ NOT forced abduction which was sanctioned by colonial and post-colonial laws, underpinned by assumptions of superiority of the migrants (and their descendants).  All done in a bid to Westernise and civilise the Aborigines while eradicating their culture.  No mention at all of other state-sanctioned ‘crimes’ such as murders, land grabbing or cultural genocide or annihilation. In fact John Howard did not accept “that genocide had been practised against the Indigenous people”. ​

If the Australian Government truly wishes to strive towards Indigenous justice and bring together all Australian people and atone for its past, surely this must begin by being honest and acknowledging its state-sanctioned ‘crimes’ which have resulted in intergenerational trauma. While the Aboriginal people patiently wait, and show remarkable dignity and fortitude they continue to suffer a multitude of harms ranging from: physical, financial, economic, denial of cultural safety, emotional and psychological abuse, which have been (and are still being) inflicted upon them by the Australian Government’s constructed apologetic half-truths about past (and present) events.

Originally posted on:  sharonhartles.weebly.com

 

Contact

Sharon Hartles, MA Postgraduate Crime and Justice student with the Open University

Email: sh28739@ou.ac.uk

Twitter: @shartles1

Images: courtesy of Flickr