Rape trial loophole should not be excuse to shame victims, says minister

The justice secretary, Liz Truss, is looking to change the law to prevent the cross-examination of rape victims in open court on their sexual history.

Truss and the attorney general, Jeremy Wright, started a review on Monday of the impact on rape victims of the operation of section 41 of the 1999 Youth Justice and Criminal Evidence Act, under which a rape complainant’s sexual history can be admissible in court.

“I do not want this [legislation] to be used as an excuse to shame victims of serious crimes,” Truss said in a speech.

Last week the Plaid Cymru MP Liz Saville Roberts introduced a private member’s bill calling for a US-style “rape shield law”, with strong cross-party support including from two Conservative former ministers.

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Ministers say that having listened to the concerns of victims’ groups, they want to look at how the law is working in practice.

Under the current rules, the bar for the disclosure of a complainant’s sexual history is high, and the disclosure is at the discretion of judges. In the past, most serious sexual cases were heard by an experienced group of specialist judges. But it is understood that a sharp rise in the number of such cases coming before the courts in recent years has led to a wider group of judges with less training in the operation of the law being involved. Truss said some courts now spent half their time dealing with sexual offence cases.

Harry Fletcher, of Voice4Victims, which provided evidence of widespread use of the section 41 loophole, said: “The cross-examination of rape victims on their sexual history is unacceptable. Too many victims are being humiliated and degraded through this process. The justice secretary’s announcement is therefore timely and most welcome.”

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Fletcher said he wanted to see the “rape shield law” adopted, similar to those in use in the US, Canada and Australia which restrict cross-examination in open court to the personal history of the complainant with the alleged perpetrator.

Truss’s announcement came during a speech on prison policy in which she also made clear she would reject “dangerous quick-fix solutions” to the prison crisis, including a deep cut in prison numbers.

She said that although prison numbers had remained stable since 2010 there were now 3,000 more sex offenders locked up in jails, and 60% of those now in jail had been convicted of violent, sexual or drug offences compared with only 40% in 1995.

Some of Truss’s predecessors including Ken Clarke and Michael Gove have said far too many people are locked up in England and Wales. Truss particularly singled out for criticism the shadow attorney general, Shami Chakrabarti, for suggesting the prison population should be halved.

The Liberal Democrats’ Nick Clegg said that instead of attacking those who proposed solutions, Truss should focus on concrete steps to relieve overcrowding.

“It would take many years to bring about a large-scale change. But it would be possible to make modest short-term reductions in prison numbers without changing sentencing practice, by reducing the number of days added on to sentences for breach of rules in prison and by recalling fewer offenders to prison post-release,” he said.

“If the secretary of state hopes that prisons can pull themselves up by their bootstraps and reduce numbers without the need for hard policy choices then she is mistaken. We need to see immediate steps to alleviate overcrowding together with a long-term plan for a smaller, more sustainable and effective prison system. This requires leadership and cross-party cooperation.”

The shadow justice secretary, Richard Burgon, denied it was Labour’s policy to halve the prison population and tweeted that there was “nothing new from Truss on overcrowding or understaffing. Violence surging and message is don’t expect change soon.”

Source: The Guardian