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.
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.
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.
There is an urgent need to discuss and rectify these.
Problems 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.
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”.
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.
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).
The 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”.
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.
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.
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).
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.
Ironically, 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
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.
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.
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.
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.
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.
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.
A shift 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.