This blog post has been contributed by Ms Amber Marks, Module Convenor for Evidence.
Although England and Wales have done relatively well to legislate (in Section 1 the Sexual Offences Act 2003) that sexual intercourse in the absence of consent is rape (amazingly there remains ambiguity about this in some countries), in light of the findings of the Government´s End-to-end rape review report on findings and actions (June 2021) several journalists and campaigners argue that we have effectively decriminalized it. The Government’s End to End Rape Review found that the prevalence of rape and sexual violence has remained steady in the last five years but there has been a sharp decrease in the number of prosecutions in the number of convictions since 2016/2017. Certainly the ease with which the Crown Prosecution appears to be willing to drop rape prosecutions was aptly illustrated in the media with Jade´s case.
Fortunately, the December 2020 edition of the Crown Court Compendium extensively reviewed and revised judicial directions on the dangers of assumptions in trials of sexual offences (Part I 20-1) and even more promisingly the Crown Prosecution has issued guidance to its prosecutors to tackle rape myths and stereotypes. Whilst both are welcome initiatives in myth busting, their detail suggest we still have a long way to go in banning outdated prejudices from the criminal justice system.
That there is much work left to do is evident from the referral of this issue by the Government to the Law Commission. The Government has asked the Law Commission to examine the trial process and to consider the law, guidance and practice relating to the use of evidence in prosecutions of sexual offences. Watch this space for developments!
Across the Board in Bad Character
Meanwhilse Dr Owusu-Bempah’s has demonstrated that rap lyrics and participation in rap music videos are often, and unfairly, presented as evidence of a “bad character evidence”, as laid out in the Criminal Justice Act 2003.
She explains: “Lyrics and participation in music videos are used to demonstrate ‘reprehensible behaviour’, but the probative value of rap music is clearly very weak, and the music is very rarely directly connected to the crime charged”. Her work raises important and urgent questions about the role of racism and bias in the use of bad character evidence.