The notion of “justice gap” together with the compelling necessity to be “tough on crime” have been recently at the core of the government's rhetoric in designing new criminal justice policies, primarily aimed at making it harder for the guilty to escape conviction.
This book explores what has been called the “justice gap” for sexual assault victims. Traditionally, victims expect that when they come forward they will not be believed – if not blamed for what happened – while the perpetrator will be exonerated. In England and Wales, thanks to subsequent reforms of both substantive and evidential law as well as changes in the policies and practice of the police and the CPS to take into account the victim's interests, reporting rates have increased exponentially since the end of the 1980s. However, there is a remarkable and widening gap between the number of offences recorded by the police (which is limited in itself) and the number of convictions. In England and Wales, the proportion of reported rapes that ended in a conviction declined from 32 per cent in 1979 to around 6 per cent in 2004/5 (Figure 1.5, p. 20).
This interdisciplinary research seeks to challenge the view that decisions made in rape cases are purely evidence-based. According to this approach, to secure a conviction is problematic either because evidence is lacking or the word of the victim against that of the defendant is not sufficient. In fact, in the authors' view, there is an ill-informed attitude, which still permeates society, at the heart of low conviction rates in rape cases. The reality of decisions made by police, prosecutors, judges and juries cannot be adequately explained by a purely normative understanding of the process involved. They are not always data-driven but often affected by the decision makers' personal feelings or general views about rape and rape victims. The entire justice-process seems to be affected by typical rape myths, which include, for example: the belief that true rapes are only ever carried out by strangers using violence, although in reality, rapists are usually acquainted with the victim; the assertion that the complainant's sexual history, drunkenness or revealing clothes could invalidate a report.
The book is divided into three parts. Part one examines existing research evidence on the “justice gap”, the roles of rape stereotypes and the process of jury decision-making and sketches the legal background. Chapter one illustrates the problem of attrition in rape cases by providing statistical data about several jurisdictions. Chapter two reviews the application of rape myths by members of the public as well as professionals directly involved in the legal process. It also explains the role of schematic and heuristic information processing in sexual assault cases. Chapter three discusses a variety of factors undermining the quality of jury decision-making in sexual assault trials, such as jurors' susceptibility to cognitive biases and emotional reactions, and examines the potential of expert testimonies in this context. Part two presents a series of studies, combining both quantitative and qualitative methodologies, in order to investigate the attitudinal problem underlying the “justice gap”. Chapter four presents data gathered among prospective lawyers on the impact of stereotypical beliefs on judgments about hypothetical rape scenarios. Chapter five presents a third study demonstrating the impact of rape stereotypes and schematic reasoning about rape cases in a 2000-people sample of members of the public from which jurors are potentially drawn in rape cases. It then gauges the effectiveness on the previously mentioned stereotypes of a recent media campaign conducted in England and Wales. Presenting the findings of systematic interviews with judges and barristers, chapter six considers different views of the problems involved in processing rape cases and the attitudes towards rape and the “justice gap”. Drawing on the same sample, chapter seven analyses their approach to key areas of the evidential law of rape which have great influence on rape stereotyping at trial: corroboration, sexual history and third party disclosure. Part three discusses avenues for change. Chapter eight explores potential law reforms to reduce the impact of stereotypical thinking in rape cases: the role of expert evidence as an “educational tool” for jurors and the issue of consent in alcohol-related cases. Chapter nine looks at ways to improve trials: the possibility of screening jurors or assist them differently and educating and training lawyers involved in such cases. Chapter ten describes a range of strategies for changing public attitudes about rape: school-based educational programmes and media campaigns. The book closes with a brief conclusion summing up of its main findings and recommendations for tackling the justice gap and two short appendixes.
Of particular interest are the strategies envisaged in the third part to ensure that rape cases are decided on facts rather than on misguided stereotypes. A major strength of this research is indeed the reliance upon a large set of data resulting from a number of techniques applied to different groups such as the assessment of written scenarios, the analysis of anti-rape posters and the results of in-depth interviews. The authors do not spare criticisms towards judges who admit getting around legislative provisions (ss. 41–43 of the Youth Justice and Criminal Evidence Act 1999) designed to protect victims in rape trials; in particular, when they abuse their discretion to allow questions on sexual history, thus introduced at trial to become relevant information for the jury in assessing the issue of consent (see also L. Kelly, J. Temkin, S. Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History in Rape Trials, Home Office, June 20, 2006 at http://www.homeoffice.gov.uk/rds/whatsnew1.html).
A possible criticism of the book is that no indication is given to explain why certain jurisdictions are preferred to others as case studies. Moreover, the authors do not consider that low report rates could be partly explained by the fact that victims have no interest in becoming a piece of evidence in a criminal process which gives them no privileged position nor means for compensation (the opposite happens, for instance, with the participation of the victim as partie civile within the French criminal trial). Besides the recommended exclusion of the jury in rape trials – repeatedly recommended e.g. for terrorist offences – the introduction of relevant elements from inquisitorial systems would allow the questioning of the witness before trial by an investigating judge to avoid further trauma potentially engendered by a public cross-examination.
Furthermore, the authors silently imply that all reforms in this field have been beneficial and ignore the strong disapproval of many academics of the deplorable increase in the number of sex offences following the enactment of the Sexual Offences Act 2003. This was described as oppressive, heavy-handed and unclear about what kind of behaviour it wants to penalise (see e.g. J. Spencer, “The Sexual Offences Act 2003: child and family offences” (2004) C.L.R. 328). At times Temkin and Krahe tend to lose sight that, in criminal cases, one has to give the defendant the benefit of the doubt. It would be worth investigating whether the widening “justice gap” is also largely a result of the juries' unwillingness to convict in cases where there was an ongoing relationship between the victim and the defendant, which are now reported by the police. In fact, following the view of feminist writers, the law attempts to treat all rape cases identically and to sentence them with the same degree of severity, although understandably for most people there is still a significant difference between the case of rape by a stranger and by an acquaintance.
The book goes well beyond merely descriptive and derivative statements and represents a thought-provoking contribution to the ongoing debate about a highly topical issue. A summary of the main findings of the social cognition research at the end of each chapter and the confinement of the legal provisions relating to the law of rape to the appendix makes the monograph intelligible to an interdisciplinary audience encompassing readers from both psychology and law.
