“A trial within a trial”: Why reporting assault to the police more than once does not mean a rape allegation is false

Professor Katrin Hohl OBE joins the Centre for Women's Justice, Rape Crisis and other women's groups in campaigning for an amend in the law to better support survivors of serious sexual violence.

Survivors are concerned that the current so-called ‘bad character’ legislation (Section 100 of the 2003 Criminal Justice Act) is being misused, with many saying they are being unfairly painted as unreliable in court when they are cross-examined based on previous reports of sexual violence.

Some defence teams are arguing that the fact a victim has previous examples of reports – particularly reports that never led to convictions or were withdrawn –  shows evidence the victim has so-called  “bad character” and is lying.

Professor Hohl, who is a Professor of Criminology & Criminal Justice at City St George’s, University of London, believes that current law does not reflect the realities of sexual violence. She argues that withdrawn or previous reports should not constitute evidence as these are the most likely outcomes of a rape report.

She explained to BBC Radio 4 Woman’s Hour that being a victim of sexual violence more than once is very common according to data from the ONS, Rape Crisis and the police.

The likelihood that someone will experience sexual violence becomes higher if they have experienced childhood sexual abuse, are from a minoritised ethnic background, or have a disability.

Furthermore, six out of 10 victims decide not to go ahead with a with a prosecution after they reported it to the police. Two out of three out of the remaining cases are closed because the police say there isn't enough evidence.

She is calling for an amendment to the law to clarify there needs to be some evidence to suggest there is a false allegation for it to be used in a trial.

A previous case being withdrawn, or the police not finding enough evidence to substantiate it, is not evidence of a false allegation, according to the Court of Appeal judgment in the case of R v All-Hilly in 2014.

She is concerned a ripple effect is occurring, whereby the existence of previous rape or sexual assault disclosures may by seen as weakness in the case by the police and Crown Prosecution Service and result in these cases being less likely to be charged in the first place.

Speaking to BBC Radio 4’s Woman’s Hour, Professor Hohl explained:

There are protections to make sure that the evidence heard by the jury is reliable. If there is some evidence that this victim has previously made a false allegation of rape, the defence can apply to include that in the evidence.

This is fair and right. That's what the law is intended to do, and that's correct. That needs to happen. That's essential to a fair trial.

The issue is that this right is being abused and used to bring in previous disclosures when there is no suggestion at all of a false allegation, but merely that there previously was a bad experience rather than bad character.

In the past, when there were far fewer women speaking out about sexual violence, there was this sense that it would be incredibly rare for this to happen to someone twice.

For somebody to report twice seemed to be something terribly unusual, and that's perhaps where the law is stuck.

Rape convictions are so low that the most common outcome is that nothing will happen when you report.

Bringing it into the evidence creates a trial within the trial. The trial is now about the victim and whether they might have lied in the past.

Imagine you've prepared yourself to give evidence in this trial, and then you are ambushed, and it is put to you that you are a liar, that you have made up things in the past when you have done nothing of this sort, and there is nothing to suggest you have done this. All there is, is a recording that you've previously experienced rape or sexual assault.

For the victims, this is an incredibly awful experience, because it brings back to you something you might have tried to put to one side and move forward from.

To add insult to injury, not only did your previous report perhaps not get taken forward and seriously, now the fact that it might have not been taken forward and taken seriously last time is taking your current case out.