Cross-examination, Fair Trial, and Survivor Justice in Rape

Abstract

So far, I have argued that rape trials hold significant barriers to survivor justice because of difficult practicalities and a cultural scaffolding that reinforces the use of rape myths, sexual history evidence, and wider societal stereotypes to undermine survivors’ voices. This chapter will expand on the evidence of deep-rooted barriers to survivor consideration, first by outlining the use of manipulative cross-examination techniques and then by unpacking the competing justice interests discussed by judges and barristers. Rhetoric about ‘rebalancing the system’ has emerged in the last decade, with increasing recognition that victims of crime are voters who can be won over with promises of improved rights in the criminal justice system (Duggan & Heap, 2013). Despite this, vehement opposition from legal professionals occurs each time an increase in survivors’ rights is suggested (for example, Naseem Bajwa & Niculiu’s 2016, response to the idea of sexual history evidence reform). Until now, little has been known about how these competing considerations are actually discussed at trial. Court observations shed light on this, demonstrating that many legal professionals are sensitive to survivors’ well-being, but a blinkered interpretation of the right to a fair trial can limit the extent to which this sensitivity is acted upon. This arrives at the heart of the difficulty with rape trials in England and Wales: In order to protect the accused’s right to a fair trial, it is assumed that survivors must suffer. While cross-examination is mostly restricted to adversarial jurisdictions, the other tensions are present internationally because the same right to fair trial is balanced against the same needs of survivors. Without a significant reframing of the rights of the accused and other witnesses, then, the criminal justice system will remain a hostile place for survivors of rape. Ultimately, this means that criminal justice cannot be the sole arena for survivor justice, as survivors’ needs will never be the central priority.