Rape trials are systematically biased against women

A rape trial in Cork, Ireland in November triggered a series of feminist protests, after it was reported that the 17-year-old complainant’s underwear was used as evidence that she gave consent. “You have to look at the way she was dressed. She was wearing a thong with a lace front.” Those were the words of the defendant’s lawyer, and the words that have fueled much of the protesters’ anger.

In a frighteningly similar case in Scotland in 2002, a 17-year-old girl took her own life after being subjected to a humiliating cross-examination in which she was told to show the court the G-string she wore on the day of her rape. Is this what justice looks like?

Such egregious misogyny has no place in our courts, but unfortunately, the presence of such attitudes in rape trials is not rare

Such egregious misogyny has no place in our courts, but unfortunately, the presence of such attitudes in rape trials is not rare. Rather than being viewed as isolated instances of ignorance, these cases needs to be seen as a symptom of a much bigger issue — that of entrenched patriarchy within legal systems around the world. By using the complainant’s clothing to suggest that she consented, the attoney appealed to prejudices harboured by many about what ‘real’ or ‘serious’ rape looks like.

Real rape, we are led to believe, happens to women who do not have sexual histories, or at the very least, are not ‘promiscuous’. To women who do not dress in a ‘provocative’ manner, nor who act sexually interested in their rapist. Nevermind the fact that it is also perfectly possible to consent to sex with a person on one occasion and then not on another. In fact, marital rape was only deemed a crime in England and Wales in 1991.

Up until that point, men had successfully avoided conviction for raping their wives due to the idea that there is a ‘marital exemption’ to the law (an idea rooted in the notion that a wife is the property of her husband). With such an exemption existing within living memory of the majority of those in the courtroom, should we really be surprised when courts don’t rule in favour of women who aren’t perfect victims?

It’s often asked why more rape survivors don’t report. Perhaps you wonder the same thing. Imagine this. Your rapist is someone you know, perhaps an intimate partner or a friend (in the majority of rapes, the rapist is known to the victim, with stranger rapes being comparatively rare). You know that if the case goes to court (unlikely), the process will require talking about possibly the most traumatic event of your life in front of a room of strangers. Did anything that positions you as a ‘bad’ victim somehow? Worn sexy underwear on the night of your rape? You may be cross-examined on that.

After all, if there is no conviction, people will assume that you’re a liar. Would you report?

What’s more, the chances of obtaining a conviction are low, as less than a third of young men prosecuted for rape in England and Wales are convicted, meaning that you will probably see your assailant walk free. His reputation may be tarnished, but it’s likely that yours will be too. After all, without a conviction people will just assume that you’re a liar. Would you report?

An increasing number of victims do, and their bravery should be commended. But there need to be greater protections in place to ensure that they receive fair trials and are not unnecessarily traumatised by the proceedings. The general public needs to be educated on rape myths, such as the idea that wearing revealing clothing indicates consent to sexual activity. Given that members of the general public make up juries, this is crucial if juries are to function as they are supposed to — without bias.

The problem, though, isn’t a lack of policy suggestions – rather, it’s with a sexist system that institutionally resists change

Another way of making the process fairer to complainants would be to allow the use of prerecorded cross-examinations in rape trials, which would enable victims to provide better evidence, with less risk of re-traumatisation. These are just two ideas, out of many recommendations that have been made for reform to the system. The problem, though, isn’t a lack of policy suggestions – rather, it’s with a sexist system that institutionally resists change.