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The
Guilty Victim: Rape and the CPS Socialist Lawyer Autumn 1995 By Niki Adams and Nina Lopez-Jones |
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In December 1991, Ms X was imprisoned, raped and sexually attacked at knife point by Mr Davies. In September 1992, Ms Y, reported being raped and threatened with a knife by the same man. Davies was arrested and the case was forwarded to the CPS which decided not to prosecute despite strong evidence: two women independently reporting rape by the same man at the same address in almost identical circumstances; substantial corroborative evidence; and Davies' admissions to possessing a knife during the attack on one of the women and tying the other woman up to stop her moving. Ms X contacted the English Collective of
Prostitutes (ECP) and Women Against Rape (WAR) at the King's Cross Women's
Centre. WAR challenged the CPS decision not to prosecute. The CPS replied
that the case had been reviewed "by senior counsel" and was
discontinued because there was not "sufficient evidence for there to
be a realistic prospect of conviction". The involvement of a prostitute women's
organisation from the beginning helped both women not to be put on the
defensive because they were working as prostitutes at the time of the
attack. Legal Action for Women (LAW), the grassroots
legal service at the Centre, took on finding lawyers ready to be
accountable to the two women and to work without asking them for a fee.
Danny Simpson -- a solicitor well known for defending victims of
miscarriages of justice with whom LAW has worked for many years -- agreed
to take on the case. With the help and support of barristers Colin
Hutchinson, Sarah Young and Simon Farrell, Ms X and Ms Y launched their
private prosecution. It took three years for the case to come to court. The English Collective of Prostitutes supported
the women throughout the run-up to the trial and sat in court with
representatives from WAR and LAW. The involvement of a prostitute women's
organisation from the beginning helped both women not to be put on the
defensive because they were working as prostitutes at the time of the
attack. Prosecution barrister Brendan Finucane QC opened
the case by saying that: “A prostitute has the same right as any other woman not to be raped. The issue in this case, as in all cases of rape, is consent which is different from a woman submitting to sex through fear of violence. The fact that the women are prostitutes is simply background to this matter." The defence focussed on attacking the women's
character. To defend the man on trial for rape, the women were put on
trial for prostitution: they were accused
of "being ready to do anything for money", including alleging
rape in order to claim compensation from the Criminal Injuries
Compensation Board, a statutory right, from which they have received
nothing so far. Despite this, the women remained dignified throughout,
giving evidence truthfully and straightforwardly, and not contradicting
each other in any detail. Their long-standing and devoted husbands who had
respected their wives' decisions at every stage, gave evidence about the
devastating effects of the rape on their wives. The women's agents also
gave evidence regardless of possible charges of immoral earnings being
brought against them. What also emerged from testimony was how prostitution
was used to make up for the income the State does not provide for caring
work. Ms Y was working as a prostitute to get an electric wheelchair for
her husband, a wheelchair user; while her agent had to quit his day job
and start a visiting massage agency from home in order to care for his
disabled wife. The private prosecution came to court at a time of well
publicised criticism of the CPS not only for its treatment of rape cases
but for refusing to prosecute in cases of racist attacks and other
violence; pursuing a prosecution in cases which should not have come to
court; incompetence and carelessness in preparing cases; disregard for the
victims of crimes, in particular by plea-bargaining which reduce the
charges and/or by dropping the case against a defendant without informing
or consulting the victim ... On 5 May, WAR and LAW in consultation with the Black Women's Rape Action Project, the ECP and |
WinVisible (women with visible and invisible disabilities) published a Dossier, The Crown Prosecution Service and the Crime of Rape, detailing 15 rape cases unreasonably dropped by the CPS where WAR had written to the CPS on behalf of the individual women asking for a review of the decision not to prosecute. In only one of the cases did the CPS overturn their original decision. This case was later thrown out by the judge before the woman gave evidence, partly on the grounds that there had been pressure from "an outside body and an MP", thus imposing a "catch 22" on anyone who enlists help in order to overturn a CPS decision. So while many cases would not come to court without the support of "outside bodies", that support is then used by the court to dismiss those same cases. The CPS denies any discrimination against particular sectors of women, but the facts contradict this. Most of the victims in the Dossier were particularly vulnerable: five are or were children at the time of the attack, three are women with disabilities, three are Black women, one is an immigrant woman and two are students. Only two of the women and children were raped by complete strangers. The Dossier
highlights the unacceptable reality that the chances of women
and children who are raped or sexually assaulted getting justice are very
low indeed: only one in 12 women who is raped reports it to the police; of reported
rapes, the police "no crime" (i.e. don't record) about one in
three; the CPS take only about one fifth of recorded rapes to the Crown
Court; only one tenth of recorded rapes result in a conviction. In contrast to the cases in the Dossier, in 1993
the CPS prosecuted Donnellan, a student, for raping a friend
even though the woman had not asked for a prosecution (she was so drunk at
the time that she couldn't remember whether or not she had consented) yet
the case went ahead and predictably was thrown out. This case could not
have been chosen and conducted more effectively to discredit rape trials
as unfair to men. The CPS response to criticisms has been to attack the rights of defendants, pressing for the reduction of jury trials; early disclosure of the defence case; the removal of the obligation on the prosecution to disclose all unused material; etc. The present controversy over prosecutions is not caused by defendants having too many rights, but by the choices of which cases are investigated and how, the priorities of the police and the CPS and the relationship between them, the way the decisions on whether or not to prosecute are made, and whether and how the prosecution presents the evidence in court. Increasingly people are being forced to bring private prosecutions and civil actions. In April 1995, the family of Stephen Lawrence, a Black teenager who was killed by racists at a bus stop, launched a private prosecution for murder after the CPS dropped the prosecution against two white teenagers. Private prosecutions are one way of protesting against sexist, racist and other prejudiced decisions by the CPS, but they are not the solution. Such challenges are costly and riddled with difficulties: there is no legal aid for private prosecutions and less and less for civil actions; the police may be obstructive and refuse to release the case files; the courts may dismiss the case because of the delay caused by the prosecution being dropped and then restarted. They are no substitute for prosecution lawyers doing their job, and being accountable both to the victim whose case they are making and to the public whose protection and defence are dependent on a just outcome. What also emerged from the testimony was how prostitution was used to make up for the income the State does not provide for caring work. In the same way, campaigns to free people wrongly
imprisoned do not absolve defence lawyers of their responsibility to be
thorough and accountable in their defence of the accused. Private prosecutions are however a crucial part of a
growing self-help movement -- such as the non co-operation movement which
defeated the poll tax and is making the Child Support Act unworkable.
Despite attempts to restrict people's access to the courts by cutting
legal aid and law centres, and other repressive measures, the self-help
movement continues to grow and influence the course of justice for
everyone. And this private prosecution has set a legal precedent for all
women against rape, all women in the sex industry and for all challenging
miscarriages of justice. Niki
Adams is from the English Collective of Prostitutes Nina
Lopez-Jones is from Legal Action for Women |