Victims of justice

March 7, 1997

Why, when reported rape is rising, are prosecutions falling? Sue Lees tells Kate Worsley that it is because the childish misogyny of the playground is still acted out in court.

Take any bus down the Holloway Road at a certain time in the morning and the upper deck will be crammed with students typical of their decade. Last-minute swotters, personal-stereo loners, all shrinking into their seats around the group of lads, bulky and loud in polyamide hooded jackets, who break off boasting about not doing their set work "no way, man! Not for that bitch!", when they spot some girls their age in the street. "That's Sandra, man, She's hot. I had her begging for it the other night. Fine ass on her." One slides open the window and whistles. Hollering and hooting, they tumble down the stairs and across the road. Class dismissed.

The University of North London has buildings scattered the length of Holloway Road, and Sue Lees's job there, as professor of women's studies, gives her ample opportunity to observe such examples of the relations between the sexes, in and out of the classroom. She has Muslim women students who attend her women's studies seminars because it is the only course their husbands will let them take: "He thinks it will teach me housework". And black fundamentalist Christians who disrupt discussions of lesbianism because it is a "sin against God".

Lees's work hit the headlines in the early 1990s when she acted as consultant to a Channel 4 Dispatches programme about serial rapists, which won a Royal Television Award, but it crystallised during her research into murder trials at the Old Bailey in the early 1980s. In a quiet moment she wandered into a rape trial. After listening to what seemed like watertight evidence she was appalled to see the defendant walk free. "It was the hypocrisy that was so shocking," she recalls now, sitting in her terraced house a few cheers from Arsenal football ground. "I didn't have a particularly naive view of British justice," (in the 1960s her first career was as a probation officer - "mainly to keep people out of institutions because I had hated boarding school so much.") "Nonetheless, you don't expect the whole thing to be a complete facade for misogynistic views."

All this seems a long way from her first project in 1980 when, after a psychology degree and a spell teaching social psychology, she got a grant to interview teenage girls about how they related to boys. Lees, however, draws a direct line from those playground taunts to today's High Court decisions in her latest book - Ruling Passions: Sexual Violence, Reputation and the Law. "The link between all the pieces of research in the book is reputation," she says. "I was interested in the way a woman's reputation is used as a criterion for deciding whether she is guilty and how she should be sentenced."

Ruling Passions, published last month by the Open University Press, demonstrates how the playground policing of the female reputation is continued in the courts, and how the gender roles courts assume to be normal are first acted out on the way to school. Lees's first book, Losing Out, was based on her research with girls and the next, Sugar and Spice, on a similar project with boys. She found language being used as a form of social control by girls and boys, with the policing of reputation the focus of much anxiety. While a girl's reputation is destroyed by insinuation about her sexual morality, a boy's is usually enhanced, though only within certain limits.

Over the past two decades, she says, "there is a lot of evidence that girls have changed but boys haven't. Girls no longer see marriage as inevitable and the only way to avoid 'getting a reputation'. But the sexual harassment and misogyny in schools is still very strong. Especially verbal abuse.

"When I interviewed boys at a local comprehensive in the early 1990s a lot didn't want their wives to work, even when they had single mothers. And they wanted to marry a virgin, that was the other thing! Extraordinary. They were harking back to the good old days when a man was a man."

"But it's confusing for boys," she concedes. "Relationship skills are regarded as being non-masculine. Not only that, but for some boys there's very little future, with the decline of full-time jobs." Lees proposes ditching the "plodding, prevention methods" of sex education for something along the lines of the Swedish and Dutch approach "about how you negotiate relationships, why male violence is so condoned, and how to bring up children".

When she read Foucault's Discipline and Punish, many things fell into place. Lees's perspective expanded to identify the disciplinary processes that constrain gender identity and legitimise male violence. "I realised that rape trials function as part of an older legal system and as a warning against resistance," she says. The distorting effect of a legal system that was never designed to protect women's autonomy or deal with modern relations between the sexes is reinforced by its reiteration of mythical concepts such as, crudely, "the woman who says yes but means no" and "the man who is unable to control himself".

Yet attitudes to men's violence towards women do seem to have shifted in recent years. In 1991 the marital rape exemption, which dated from 1736 and held that it was not possible for men to rape their wives since the wife "hath given herself in this kind unto her husband" was removed from common law. 1993 brought a flurry of so-called date rape cases, fuelling the belief that, prompted by political correctness, women were increasingly prone to making false accusations.

It is true that the police are now recording record numbers of cases of rape and sexual assault. But the conviction rates tell a different story (see box right). Lees outlines the process of "attrition" by which accusations of rape are downgraded at every stage of the legal system. She quotes David Rose, author of In the Name of the Law, saying that the attrition rate is high for all crimes, but is highest for rape. Rapes reported to police stations are "no-crimed" or down-graded to sexual assault, then rejected by the Crown Prosecution Service - since 1986 the body which prosecutes cases on behalf of the Government - as unwinnable and therefore likely to bring down its success rate. Lees says research in Islington showed as many as half the reported cases failed to reach the CPS. "It is usually argued that this is because rape cases are difficult to prove, but there are an awful lot of things wrong with rape trials," she explains.

She has (after much persistence) monitored sexual assault records at two London police stations, 31 contested rape trials at the Old Bailey and interviewed 116 rape and attempted rape survivors. She sees the fear of false accusations as being greatly exaggerated (there were only 17 cases in two London boroughs over three years). Every available stereotype of female behaviour is used to colour the jury's perception of the victim, while the accused's public reputation - his respectable job or lack of previous convictions - is evidence of his credibility, she says. Judges allowed questions about the victim's sexual history in seven out of ten trials. "Enormously prejudicial, as it plays on all the stereotypes about women 'asking for it'." The effect is to create what a Scottish Office survey of barristers called a "smokescreen of immorality" around the victim, thus calling her evidence into doubt.

Lees published her findings in her last book, Carnal Knowledge. While welcomed as long overdue research that highlighted the need for urgent reform, the book was criticised for proposing that the sexism of an accused rapist should be used as evidence. "What I actually said was," she counters, "'taken into account'. Obviously not everyone who is sexist rapes, but the evidence shows that rapists' common characteristic is an extreme form of sexism, to the extent that they often don't recognise that a woman has the right to refuse sex."

Although it is hard to see how rapists' sexism can be incorporated into court procedure, the assumptions made within the legal system about male and female sexual and social behaviour offer plenty of scope for reform. "A lot of the misogynist views (expressed in court) are deeply embedded in public school rhetoric, and in that scenario you see them more blatantly," she says. "You get views that would not be tolerated in wider society, like the woman who was asked if she often slept with ethnics."

So how could the courts' rough justice be improved? Accountability is one route. "Take the 1976 Sexual Offences Amendment Act (which guards against rape victims being crossexamined about their sexual history), we have that legislation but it is completely ineffective because it is not being monitored. There is no financial excuse for the lack of effective monitoring. And if you specified when sexual history information was relevant, which is what they have done in Australia, that wouldn't actually cost anything."

Last June Labour tabled three amendments to tighten up the Criminal Procedures Bill by leaving less to the discretion of judges. If carried, these would protect victims from irrelevant questions about their sexual history, ensure separate rape allegations against the same person are heard together to help catch serial rapists, and require judges to tell juries that victims may have good reason to delay reporting offences. The Government was goaded into promising a large-scale study of the problem.

Lees has had Labour signals that the issue is being taken seriously, and believes they are likely to get their amendments through if they come to power. Yet earlier this month Jill Saward, who was raped in her father's Ealing vicarage 11 years ago, cancelled a conference on rape law reform because only one (Liberal Democrat) MP of the 648 who were asked agreed to attend.

Pressure groups have done their bit - "Sara Thornton wouldn't have been released without them" - as have TV soaps like Brookside, with its now infamous storyline of an abused wife. "I think that led to a great increase in people's understanding of women who kill their husbands." But she is disappointed that the Channel 4 Dispatches programme, which identified three acquitted serial rapists, failed to lead to any further investigation.

Much of Lees's research has been television-led, which says little for government funding arrangements. Home Office studies are mainly statistical, do not look at the wider social context, and are often shelved. What is needed is more research that looks at what lies behind the statistics, says Lees. Research that will help sharpen the blunt instrument of the law to the point where it can peel apart the layers of power, guilt and responsibility.

Sex crimes soar but convictions plummet

More rapes are now reported to the police than ever before, from 1,842 in 1985 to 5,039 in l994, yet convictions for rape have fallen dramatically over the past two decades. In 1980 37 per cent per cent of reported rapes in England and Wales led to a conviction, in 1985 the conviction rate was 24 per cent, in 1994 8.4 per cent.

After reforms, including limiting the use of victim's sexual history evidence, the corresponding figure for convictions for rape in Australia is 82 per cent.

In Northern Ireland reported rapes have more than doubled since 1990, yet prosecutions and convictions have dropped.

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