The treatment of rape victims within the criminal justice system : a comparative perspective

As to the proposed form and content of this thesis. Chapter One begins by examining three aspects of the rape trial which have attracted considerable criticism in traditional rape literature. These are the brutality of the cross-examination process and the joint inadequacies of both prosecuting counsel and judiciary. Further, as a preliminary to establishing the reasons behind these objectionable features. Chapter One examines also the experience of non-rape victims in these three areas. It will be shown that, contrary to the image presented in most rape literature, these features are common to all trials, regardless of case-type. This finding is then critical to the evaluation undertaken in Chapter Two wherein it is intended to establish the factors underlying the treatment outlined in Chapter One. Because rape and non-rape victims endure an almost identical experience in this regard, Chapter Two begins from the premise that there is a common cause behind this treatment. This second chapter goes on to show that this common cause lies among the structural and functional features of our criminal justice system. Chapter Three then outlines those aspects of the rape trial which have attracted the most vehement criticism, namely the use of sexual history evidence, the corroboration warning requirement and the operation of section l(f)(ii) of the Criminal Evidence Act 1898. Like Chapter One, Chapter Three is concerned to establish how these features of the rape trial accord with the conduct of trials generally. Therefore, a comparative methodology is again adopted whereby the treatment of rape victims in these three areas is measured against the treatment of victims as a whole. As before, this comparative approach is critical to establishing just why rape victims are treated as they are. In contrast with the commonality revealed in Chapter One, Chapter Three will demonstrate that these three aspects of the rape trial represent a significant and unjustifiable departure from the conduct of trials generally. Accordingly, Chapter Four explores the possibility that this discriminatory treatment derives from prejudicial attitudes towards rape victims. Finally, Chapter Five is concerned to establish exactly how the difficulties outlined throughout the course of this thesis might best be resolved. The central proposition of this thesis is that, if real improvement is to be achieved, a root and branch approach to reform must be taken, any suggestions made going directly to the source of the problems. Hence the emphasis on determining accurately why rape victims are treated as they are. Thus, Chapter Five discusses structural, functional and cultural reform. Not only will this approach improve the rape victim’s experience at court but, because it addresses the flaws endemic to the criminal justice system, it will ensure significant improvement in their treatment throughout the criminal justice process. This is critical because, although the difficulties highlighted throughout this thesis pertain mainly to the trial process, it is the case that rape victims encounter objectionable treatment at all stages of the judicial process.