Prosecutors urge care on retracted rape claims


10:00 am - December 16th 2010

by Sunny Hundal    


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Good news! The Director of Public Prosecutions has said the police need to treat “very carefully” cases of people retracting rape allegations as they may be pressured to do so.

The new guidance follows the recent case of a 28-year-old woman from Powys who was jailed for eight months for falsely retracting claims she had been raped six times by her husband.

she was eventually freed after the appeal court heard she suffered violent abuse by her husband.

The DPP Keir Starmer said such such prosecutions would now now need DPP approval.

While we must be robust in prosecuting those who seek to pervert the course of justice, cases where someone has reported a rape but then retracts the allegation must be treated very carefully and we must explore the issues behind the retraction, particularly if the victim is under pressure or frightened.

He announced a consultation exercise for the new year involving charities and special interest groups on the factors to consider before bringing a prosecution for perverting the course of justice.

The Crown Prosecution Service has also issued new guidelines for police, with examples of myths and stereotypes surrounding rape cases.

These myths include: if a woman has no physical injuries then she must have consented; a delay in reporting a rape suggests the allegation is false, because a genuine victim would report the crime immediately.

The CPS says such assumptions “have bedevilled… rape cases”, according to the BBC.

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Sunny Hundal is editor of LC. Also: on Twitter, at Pickled Politics and Guardian CIF.
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Reader comments


The presumption of innocence should cut both ways: a man is presumed innocent or rape unless or until convicted but a woman is also innocent of lying unless or until convicted of perjury. The fact that a woman may withdraw an accusation does not mean that she was lying when she made the accusation OR when she withdrew it unless a case is proven.

This is the problem many people have with rape trials: finding a man innocent is not the same as proving the woman guilty of perjury. The assumption should be that both are innocent unless either is proven guilty beyond a reasonable doubt.

A retraction of an accusation logically implies that either the accusation or the retraction is false but unless it can be proven *which* statement is false no offense has been committed.

Hang on:

The new guidance follows the recent case of a 28-year-old woman from Powys who was jailed for eight months for falsely retracting claims she had been raped six times by her husband.

Is this a typo, or is falsely retracting a rape claim a crime (which seems somewhat wrong to me)?

I am assuming you mean she was jailed for making false accusations after retracting claims? False accusations are a crime, so making them is punishable with jail remember. If her (I hope for both their sakes ex-)husband, however abusive, is not a racist, then her accusations were an assualt on him (obviously not as serious as his on her before anyone gets all misplacedly moralistic – rape and domestic abuse are in another league from false accusations). Regardless of whether he was convicted of anything or not, if the woman in question was guilty of this crime she had to be sentanced.

Now it may be the appeal court overturned the conviction, but it may just have cut the sentance, so we can’t comment on this information (Sunny – do you have a link/clarification?).

On a wider level you either have to allow that falsely accusing someone of a crime is a crime in itself, or state that accusations of rape can be made without any consequence to the accuser. I doubt many of us would favour the second option.

3. Chaise Guevara

Perhaps the simplest solution is to say that false allegations should be punished, but false retractions should not? That would put paid to the idea (which is flawed anyway) that if there has been an allegation and a retraction then the accused must be guilty of faking one of them.

This would also be beneficial to people falsely accused of rape, because a palintiff who realised the accusation was unfair would not feel pressured to keep up the pretence to avoid going to jail themselves.

Sunny,

Sorry – saw link at the bottom. Doh!

But the story is not about a woman who falsely retracted claims, but who retracted her claims (under pressure) and was then jailed for making false accusations, which she then claimed were true and was believed by the appeal court not to have deliberately made false claims. Can I suggest you correct your post to avoid the understandable confusion shown by Chaise above?

Shatterface: but unless it can be proven *which* statement is false no offense has been committed.

And not necessarily even then. If you look at the definition of the various crimes in the Sexual Offences Act they basically go as:
– A carries out a sexual act on B
– B does not consent
– A does not have reasonable grounds to believe that B consents

It’s very straightforward for the first two to be true and even undisputed (which would be rape or a related crime in the colloquial sense and entirely justified for B to report) but for the courts to find that the third is not true (and therefore A is innocent of any crime)

(That third criteria really needs some serious tightening up, since it’s a loophole big enough to drive an entire bus full of rapists through as it stands, despite being an improvement on the previous version which didn’t require the grounds to be “reasonable”)

6. Chaise Guevara

@ 4

Hang on.

Are you saying she was convicted of making a false allegation based on the evidence (in effect of least) of her retraction? Even with good reason to believe that the retraction was made under pressure?

If so, five words: lawyer asleep at the switch.

Chaise – she was convicted of perverting the course of justice, because she lied to the police about a crime. It was clear that she’d lied to the police about a crime, because *either* her accusation *or* her retraction must have been a lie. It’s one of those cases where someone is technically guilty of a crime, but also where the prosecution should never have been brought, and where the judge was an unspeakable bastard for imposing a custodial sentence once they had been.

CIM – I was about to say “at last something we’ll agree on”, both on the original post and on your comment, until I reached the last paragraph. Oh well, continuing to disagree it is (although I do agree wholeheartedly with the last clause. The SOA2003 is a very good piece of legislation and turned English sexual offences law from something distinctly outmoded and ridiculous into one of the best in the world at balancing the rights of the accused with the need to punish the guilty).

Chaise @6,

Making a false retraction is not a crime, so yes. Albeit, we do not know if her trial heard that there was pressure on her to retract (which might have been the significant new information that allowed an appeal).

I agree that the lady in question’s lawyer should be returning his or her fees…

6/Chaise: No. Worse than that. She was convicted of “perverting the course of justice” on the basis that she falsely retracted her allegation. (A conviction which requires the justice system to believe to at least some extent that the allegation was true)

From http://www.guardian.co.uk/uk/2010/nov/08/rape-case-woman-appeal the judge stated (when sentencing her to six months)

You now have to be dealt with for making a false retraction. If you had to be dealt with for making a false allegation of rape you would be looking at a sentence of two years.

While the offence used was the same as the one in “making a false allegation” cases, she wasn’t convicted of “making a false allegation”.

“Making a false retraction is not a crime, so yes” – yes it is. Lying to the cops on a signed statement is a crime, called “perverting the course of justice”. Best bear that in mind next time a gangland boss offers you a suitcase of money to drop your allegation that he broke your legs (which kind of behaviour is the reason why it’s a crime).

@5, the test is actually that “A does not reasonably believe that B consents.” This is a different test from having reasonable grounds, because A must honestly and reasonably believe it. Merely having grounds to believe there is consent is not sufficient to excuse liability.

I can’t agree this needs tightening up as it is the lowest form of mens rea among serious crimes: mere negligence is enough to give rise to guilt. This is already fairly contraversial, but is deemed to strike the right balance.

john b/7: Well, as it stands, a defendant could claim that their belief in consent was reasonable on the basis that [insert rape myth here]. Most rape myths have around a 1/3 belief rate in the general population at the “victim has partial responsibility” level, which a defence lawyer can easily use to argue “victim should have made lack of consent clearer and therefore my client, while regretting the misunderstanding, is innocent of any crime”, and this makes it extremely difficult for prosecutors to get a 10-2 majority (that is: difficult over and above the intentionally difficult requirement to prove their case to the required standard, which is what they’re supposed to be dealing with)

When a survey for instance finds that 53% of young adults (in London, but I expect it generalises elsewhere) would not view being physically pushed away as indicating of a lack of consent, for instance, I don’t think it’s safe to assume that the definition of “reasonable” collectively held by jurors actually means “reasonable”.

As I’ve said elsewhere, if people in general didn’t believe rape myths, the text of the law would be fine as it is. Since they do, there needs to be more clarification (in a form that courts can’t just ignore) about what “reasonable” means.

To bring this back to the topic, I note from the linked BBC article that

The DPP is also stressing the need for prosecutors to ignore the possibility of jurors being swayed by certain “myths and stereotypes” about rape when deciding whether there is sufficient evidence to bring a prosecution.

which is an interesting exception to the “only proceed with at least a 50% chance of winning” general criteria for taking cases to court. It’s a good idea, but it will have the effect of reducing their conviction rate (as in trial:conviction ratio) even though it probably will improve the report:conviction ratio (the more important one).

Tom/11: I agree that the level of mens rea required is correct. I don’t believe that the definition of “reasonable” in common use regarding sexual consent is trustworthy, though, which means that as written without clarification of that it actually causes the threshold to be much higher.

Thanks for the clarification on the exact grounds – I should have copied and pasted from the legislation rather than paraphrasing – but I’m not sure that there’s that much difference between the two in practice, is there? How can someone have apparently reasonable grounds to believe in consent and yet know that they don’t have it, without the definition of “reasonable” being broken? (my argument is that the definition is broken, of course)

Now if – hypothetically speaking of course – the claims against one Mr Assange did turn out to be false, and made by a woman who was given annonimity, I take it that those supporters of Mr Assange would not be calling for her prosecution.

CIM: “an interesting exception to the “only proceed with at least a 50% chance of winning” general criteria for taking cases to court.” – yes, indeed.

What I don’t get – given the general wheeling out of experts in serious cases, including bastards like Roy Meadow – is why the CPS don’t call experts in rape cases to debunk those myths to the jury. If the defence argument is “he didn’t leave any marks of violent assault on her, so she must’ve consented”, why not bring in a Serious Person to point out that this is bullshit, rather than relying on the CPS barrister to say that it’s bullshit?

Miss A: well, it depends on what is established to have happened, doesn’t it? If the grounds for acquittal were to come down to reasonable belief about consent, then nobody in their right mind would want anyone prosecuted, and nobody would’ve committed a crime. However, if it were to come down to “the accusations are completely fictional and made up because the CIA slipped people large cheques”, then surely everyone would want prosecutions? *NOTE* THIS DOES NOT EXPRESS AN OPINION ON WHAT ACTUALLY HAPPENED.

16. Chaise Guevara

@ 14 Miss A

“Now if – hypothetically speaking of course – the claims against one Mr Assange did turn out to be false, and made by a woman who was given annonimity, I take it that those supporters of Mr Assange would not be calling for her prosecution.”

Really? I’d assume the opposite. If by “turn out” you mean there was considerable evidence of falsehood rather than just not enough evidence to convict, of course.

A prosecution for either the false withdrawal of an accusation of rape or the withdrawal of a false accusation of rape would almost certainly guarantee that those who made false accusations would stick by them resulting in wrongful convictions.

Loathe that I am to see those who make false accusations get away with it the alternative is worse.

‘Really? I’d assume the opposite. If by “turn out” you mean there was considerable evidence of falsehood rather than just not enough evidence to convict, of course.’

‘Not enough evidence to convict’ is functionally the same as ‘innocent’ (except maybe in Scotland’s ‘Not proven’ verdict). If Assange is found innocent this is not the same as saying his accusers are liars unless they are found guilty or perjury.

CIM – by the way, my last comment re you at 12 also counts as “you’re completely right; I don’t disagree with a word”.

Shatterface – isn’t that just violent agreement with Chaise? “Not enough evidence to convict” and “proof beyond reasonable doubt that the key witness is lying” are both things that could lead to a defendant being acquitted.

In the former case, unless there are specific failings in police, prosecution or court practice, it needs to be chalked down to “sorry, everyone; one of the things which sucks about not living in a totalitarian state is that this happens”. In the latter case, the police and CPS note that there’s enough evidence for a prosecution, and launch one.

john b,

of the things which sucks about not living in a totalitarian state

Sorry – there is a list of these? Wow.

22. Chaise Guevara

@ 18 Shatterface

“‘Not enough evidence to convict’ is functionally the same as ‘innocent’ (except maybe in Scotland’s ‘Not proven’ verdict). If Assange is found innocent this is not the same as saying his accusers are liars unless they are found guilty or perjury.”

That’s my point: I’d expect Assange’s supporters (and not just them) to call for the witnesses to be prosecuted if there was serious evidence to suggest that they had lied. If there wasn’t enough evidence to prove it either way, or the judges decided that what Assange was accused of wasn’t illegal anyway and threw the case out, then I wouldn’t expect any sensible supporter of Assange to demand a prosecution for perjury or similar.

The post I was replying (14) to is hard to fathom (its tone seems to imply that calling for prosecution of the alleged victims would automatically be hypocritical, but I can’t pin any form of logic on that argument), so I’m answering as factually as possible to avoid accusing the poster of saying something they didn’t.

23. Chaise Guevara

@ 20

Exactly, john b, cheers.

the woman was being threatened by her husband and his sister, they put pressure on her to retract her accusation because if he was convicted, he would go to jail for a long time, but she wouldn’t go for jail for as long. bearing in mind this man had been violent towards her for a long time, and had raped her and was trying to take her kids away (he got custody of her children i think because she was convicted) it is understandable why, as a frightened and vulnerable woman, she retracted her accusation. there was plenty of evidence a i understand it to convict him, hence her ‘crime’ was perverting the course of justice, by falsely retracting her accusation.

this is why they are announcing this change, as recognising that the reasons a woman might falsely retract an allegation is because they are being pressured, threatened, and are frightened. it’s about seeing subtlties and being sensitive, and protecting someone who is vulnerable so that her kids don’t end up in the care of an abusive and violent man and she, the victim, doesn’t end up with a criminal record.

john b/15: Expert witnesses … as far as I can tell from a quick look, the previous government started looking at allowing them for that purpose in 2006 and never really got any further than that. I get the impression from the reporting on the proposals that there is currently some sort of legal bar on using expert witnesses in that way.

http://dx.doi.org/10.1093/bjc/azp013 is interesting reading if you have access. In summary, expert witnesses seem to be very useful for squashing some rape myths, and have very little effect on others.

This is good news! I heard a report about this last night, which said that prosecutions in cases like this will all have to be ok’d by Keir Starmer.

@13 Cim, the difference between the two is that requiring a ‘reasonable belief’ requires that the belief is honestly held (and reasonable), but ‘reasonable grounds to believe’ would be more open to allowing someone to escape prosecution if they could have have had some grounds to believe in consent but didn’t necessarily actually believe in it. You might be right in practice though.

Thanks for clarifying your problem with the current test. I agree entirely.

CIM: I get the impression from the reporting on the proposals that there is currently some sort of legal bar on using expert witnesses in that way.

I’ve had a Google and turned up nothing, sorry. This is genuinely interesting: if that’s the case, then it’s *fucking revolting*, and I’ll march with you to get it lifted.

@22
“…so I’m answering as factually as possible to avoid accusing the poster of saying something they didn’t.”

Thus demonstrating that you’re on the ball…

…now a second question in the same vein… if (hypothetically speaking of course) Mr Assange were to be aquitted, and his erstwhile accuser where to find herself in a sticky legal situation, should she lose her annonimity?

30. Chaise Guevara

@29 Miss A

I can’t give you a simple answer there, because it depends how you look at it. In many ways I feel that anonymity should be maintained for anyone who is accused of a crime because, especially since the internet went ubiquitous, any accusation could follow you around like a bad smell. I mean sure, people aren’t going to stop being your mates if they Google you and find you were accused but acquited of shoplifting a few years ago, but what if the person doing the Googling was a potential employer trying to decide between you and an otherwise equally skilled candidate?

On the other hand, there are good arguments against preserving anonymity too, mainly to do with it increasing the chances of trials going the wrong way. So given that it’s not normally allowed, I certainly don’t see why someone accused of making a false accusation of rape should be treated as a special case. The usual practical reasons apply: someone the police hadn’t thought to contact might have information that could confirm or disprove guilt.

You haven’t explained the point you were making at 14, by the way. Like I said, I’d prefer not to second-guess you.

john b/28: As far as I can tell from a bit more digging, since the relevant government consultation paper no longer seems to be available, and I can’t find anywhere that actually sets out definitively what the rules on expert witnesses are, the problem appears to be that – for any trial – you can’t bring in an expert witness to talk about “general characteristics” of crimes but only about their opinion on the specific facts of the current case.

So you can bring in experts to say that the rape victim in this case is in exceptional specific circumstances and so might not conform to a particular rape myth, but you can’t bring in experts to say that the rape myth itself is rubbish and that the victim’s behaviour was well within the range of normal behaviour for rape victims and no exceptionality is needed to explain the facts of the case.

@30

Not really much to explain Chaise… my comment was intended to stimulate thought… you see, it appears to me that some people seem to hold conflicting standards when it comes to annonimity in rape or sexual assault cases depending on who is accused… the Assange accusations appear to provide a clear example of this.

It is worthwhile noting that, if the crime of which Mr Assange was accused had taken place in this country rather than Sweden, then the vast majority of the comment that has appeared in the British Media, as well as on sites like this, would be sub judice…

I just like it when people engage their brains before their mouths (or their fingers).

@1: The presumption of innocence should cut both ways

Absolutely.

a woman is also innocent of lying unless or until convicted of perjury

If a woman says she was raped, then says she wasn’t, she could hardly have been telling the truth on both occasions. If she was lying the first time, that’s attempting to pervert the cause of justice; if lying the second time, that’s wasting police time and/or perjury.

Having said that, there’s probably not a lot of point in prosecuting where a witness has been nobbled.

@12 cim: I don’t think it’s safe to assume that the definition of “reasonable” collectively held by jurors actually means “reasonable”.

Doesn’t “reasonable” when used in statute law pretty much by definition mean “reasonable according to a jury”? (when there’s a jury trial)

Phil Hunt/34: Yes, but that general rule can be qualified elsewhere in the legislation, as happens, for instance, in http://www.legislation.gov.uk/ukpga/2003/42/section/76

So a defence lawyer couldn’t argue that there was reasonable belief in consent based on the defendant’s belief that the complainant would have slept with him even if he hadn’t been pretending to be their partner.

The “nature or purpose” one is pretty much a direct cancellation of one rape myth (that consenting to one sexual act implies consent to all possible sexual acts), so it’s not as if they couldn’t do the same for at least some others either there or in section 75 as appropriate.


Reactions: Twitter, blogs
  1. Liberal Conspiracy

    Prosecutors urge care on retracted rape claims http://bit.ly/dJspMP

  2. Emily

    RT @libcon: Prosecutors urge care on retracted rape claims http://bit.ly/dJspMP

  3. Clare Cochrane

    DPP to consult about prosecution of women who retract rape allegations, & police get rape myth-buster http://tinyurl.com/27po8m3

  4. Jennifer C Krase

    RT @emmielouli: RT @libcon: Prosecutors urge care on retracted rape claims http://bit.ly/dJspMP

  5. sunny hundal

    Prosecutors say more care needs to be taken on retracted rape claims, after recent case http://bit.ly/dJspMP

  6. sianushka

    RT @sunny_hundal: Prosecutors say more care needs to be taken on retracted rape claims, after recent case http://bit.ly/dJspMP

  7. Ira

    RT @sunny_hundal: Prosecutors say more care needs to be taken on retracted rape claims, after recent case http://bit.ly/dJspMP

  8. John Dukes

    @sunny_hundal http://bit.ly/fAG26a this, I was wondering how those girls in Sweden were feeling, might fit in with your blog dont u think





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