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The Legal Process and Victims of Rape

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The Legal Process and Victims of Rape THE LEGAL PROCESS AND VICTIMS OF RAPE With the support of the European Union (Grotius Programme) The Dublin Rape Crisis Centre The School of Law, Trinity College Dublin The Legal Process and Victims of Rape A comparative analysis of the laws and legal procedures relating to rape, and their impact upon victims of rape, in the fifteen member states of the European Union September 1998 Dedication To all victims of rape and sexual violence. This Report was researched and written by Ivana Bacik Catherine Maunsell Susan Gogan Indexed and proof-read by Helen Litton Cover design by Susan Madigan Printed by Cahill Printers Limited, East Wall Road, Dublin 3 Published by The Dublin Rape Crisis Centre The Dublin Rape Crisis Centre 1998 Available through The Dublin Rape Crisis Centre 70 Lower Leeson Street Dublin 2 Ireland Tel: (353-1) 661 4911 Fax: (353-1) 661 0873 Administration, Post + Packaging IR£10 Contents Foreword xi Acknowledgements of the Project Supervisory Board xv Acknowledgements xvi Introduction xvii Chapter 1 Summary of Findings and Recommendations Introduction 1 1. The law on rape 1 2. Pre-trial 5 3. Trial 11 4. Separate legal representation 17 5. Post-trial 18 6. Statistics 21 7. Reform 22 Chapter 2 Literature Review: Victims of Rape and the Legal Process Introduction 24 1. Rape and sexual violence: the personal, familial and societal impact 24 2. Victims of rape and sexual violence and their experience of involvement with the legal process 30 3. Victims' experiences of reporting rape 32 4. Police treatment of victims of rape and sexual violence 36 5. Victims' involvement in the criminal trial 40 6. The central concerns of victims involved in the legal process 42 7. Victim participation in the legal process 51 8. Victims' involvement in the sentencing decision 54 9. Overall impact of involvement in the legal process on victims of rape and sexual violence 57 Conclusion 58 vii viii The Legal Process and Victims of Rape Chapter 3 An Exploratory Investigation Within Five EU Member States of Victims of Rape and Sexual Violence and Their Experience of the Legal Process 1. Objectives of the study 60 2. The methodology of the study 61 3. Sampling strategy and representativeness of the participant sample 61 4. Accessing participants for the study 63 5. Research participants 64 6. Psychological interview schedule 67 7. Procedure: the interview process 68 Chaper 4 Quantitative and Qualitative Analysis of the Interviews with Victims of Rape and Sexual Violence about their Experience of the Legal Process 1. The pre-trial process 71 2. Trial procedures 110 3. Post-trial stage 140 4. Recommendations for reform 152 Chapter 5 Study of the Legal Process: Methodology and Definitions 1. Methodology of study 160 2. Different legal systems: comparative study 163 3. Definitions of rape in different legal systems 165 Chapter 6 The Legal Process: Belgium 1. The law on rape 170 2. Pre-trial 172 3. Trial 178 4. Separate legal representation 182 5. Post-trial 183 6. Statistics 184 7. Reform 184 Contents ix Chapter 7 The Legal Process: Denmark 1. The law on rape 186 2. Pre-trial 187 3. Trial 192 4. Separate legal representation 198 5. Post-trial 200 6. Statistics 203 7. Reform 204 Chapter 8 The Legal Process: France 1. The law on rape 206 2. Pre-trial 208 3. Trial 214 4. Separate legal representation 218 5. Post-trial 219 6. Statistics 221 7. Reform 222 Chapter 9 The Legal Process: Germany 1. The law on rape 223 2. Pre-trial 226 3. Trial 232 4. Separate legal representation 236 5. Post-trial 238 6. Statistics 240 7. Reform 241 Chapter 10 The Legal Process: Ireland 1. The law on rape 243 2. Pre-trial 245 3. Trial 253 4. Separate legal representation 258 5. Post-trial 261 6. Statistics 264 7. Reform 265 x The Legal Process and Victims of Rape Chapter 11 The Legal Process: Other Member States 1. The law on rape 268 2. Pre-trial 272 3. Trial 279 4. Separate legal representation 288 5. Post-trial 289 6. Statistics 293 7. Reform 294 Appendix 1 Psychological Interview Schedule 299 Appendix 2 Detailed Statistical Analysis of the Psycho- logical Interviews 324 Appendix 3 Legal Questionnaire 336 Appendix 4 Directory of Contacts and Selected Materials Provided for Victims in Different States 345 Organisation Profiles and Authors' Biographies 358 Bibliography 361 Index 383 NATIONS UNIES UNITED NATIONS Le Haut Commissaire aux Droits de L'homme The High Commissioner for Human Rights PALAIS DES NATIONS CH-1211 GENEVA 10 Foreword This Report marks the culmination of twelve months intensive research. The stated objective was ambitious: to review the laws and procedures on rape throughout the 15 member states of the European Union. In addition, it sought to assess the impact of the different laws in each member state, upon the victims of rape themselves. Thus, perhaps the compelling feature of this study is the insight it pro- vides into the experiences of those women who had been raped and had been through the legal process as a result. In Part II of this Report, those women are given a voice, and a means of expressing their views on the laws and procedures of which they have had direct experience. Their personal testimonies make harrowing reading, when set against the detailed account of the laws and procedures outlined in Part I of the Report. This Report then, is the product of an unusual collaboration. It com- bines both legal and psychological research, and the researchers have sought to present the research in a unified manner, while seeking to ensure that both Part I (presenting the legal findings) and, Part II (presenting the findings from the interviews with those women who have experienced the legal system as victims of rape), remain accessible to a reader versed in either discipline. The findings presented in both Parts complement each other. While the researchers admit to a common law bias and explain that the empha- sis on formal rules of evidence in the legal questionnaire, for example, displays this bias, it is still noteworthy how many themes arising in the trial of rape are common to both adversarial and inquisitorial systems: xi xii The Legal Process and Victims of Rape the role of the police; the crucial nature of the forensic medical examin- ation; the differential treatment of minors, both as witnesses and as defenders; the lack of training for lawyers and judges dealing with rape trials; the absence of sentencing guidelines; the existence of mechanisms for obtaining compensation. At the same time, it is important to note the extent of the difference between the adversarial and inquisitorial systems as demonstrated by this Report. This difference perhaps comes across most strongly in the sections on the rules of evidence in chapters 2 to 7. In both England and Ireland, formal rules as to the need for a corroboration warning, and the admissibility of the complainant's prior sexual history as evidence, in rape trials, have formed the basis for some of the strongest criticisms of rape law by feminist scholars in both jurisdictions. Elsewhere however, these issues do not appear to be regarded as problematic, because, for the most part, under the inquisitorial trial process, no formal rules of evidence apply and the guiding principle for the trial court is that of `free evaluation of all the evidence'. The other glaring difference between the two types of jurisdiction is the existence of legal representation for the victims of crime. This is available to victims of crime in all of the member states studied, except England and Ireland. The issue of the role of victims' lawyers was cen- tral to the purpose of this project, and the findings presented in Part II are particularly interesting in this regard. Nine out of the sample of twenty women interviewed had been represented by a lawyer at trial, and a highly significant relationship was found to exist between rep- resentation by a lawyer and overall satisfaction with the trial process. Those women who were legally represented were found to be much more confident in giving evidence and much less hostile to defence counsel. These findings must give cause for thought to those accustomed to a common law, adversarial legal system. Given the differences which exist between adversarial and inquisitorial systems, it might be difficult to introduce as comprehensive a right to representation for victims of crime as exists in some of the member states, but it is surely worth considering the introduction of some form of representation for victims. Indeed, the rights accorded to the legal representative differ greatly even Foreword xiii between the inquisitorial systems. In some states, they have full rights of audience before the courts; in others, they may only address the court as to the level of compensation for the victim. Many other differences in the criminal process are found to exist between the member states, even among those with inquisitorial methods of trial. In some states, a jury is used to try rape; in others, it is always tried before three professional judges without any jurors. Even in the meaning of `jury' the rules differ: in some states, a new jury is selected for each criminal trial, in others, lay magistrates are elected to serve for four-year terms at a stretch. Throughout this Report, the reader is provided with an insight, not just into the different rules around the trial of rape, but also into the many differences and similarities that exist in the criminal justice systems of the member states of the European Union.
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