Analysis of the cross-examination of complainants and defendants within rape trials

Williams, Anneleise

Abstract

Research continues to raise concerns over the treatment of rape complainants at trial, despite the numerous criminal justice reforms implemented in the last two decades. Attention has been paid to the difficulties of giving evidence, particularly during cross-examination, for those complainants whose allegations reach Crown Court. Despite this, little empirical research has been conducted into how cross-examination operates in practice for complainants. Moreover, an understanding of how defendants are cross-examined is absent within scholarly literature. This thesis provides a contribution towards addressing these significant apertures in knowledge and socio-legal research in this field. The role and conduct of cross-examination for complainants and defendants will be critically examined. This study uses trial observations and contemporaneous field notes of eighteen rape trials, to provide an in-depth understanding of how cross-examination operated in practice for complainants and defendants in these trials. The central themes developed from the observations of the complainants and defendants’ cross-examinations are, ‘welfare considerations’, ‘expectations of behaviour’, ‘sexual history’, and ‘impugning credibility’.

This thesis argues that the complainants and defendants were robustly and fairly examined on their evidence. Many positive practices were observed, some of which reflected the ‘best evidence’ model of cross-examination. These positive practices appeared to safeguard the welfare of complainants and defendants. Most notably, barristers and judges demonstrated sensitivity towards complainants, and were willing to adapt cross-examination for them. There was, however, scope for a wider and more consistent adoption of the positive practices observed, particularly for the defendants in these trials. Amidst the largely positive cross-examination practices observed, certain poor practices and questioning strategies were also identified.

It will be argued that the potential difficulties individual complainants and defendants experience must be acknowledged within cross-examination. They must be afforded with ‘fair treatment’ and given an opportunity to provide their best evidence. A new model of cross-examination, termed the ‘fair treatment model’ (FTM), is advanced to address these issues. This thesis argues that a FTM of cross-examination that embraces the principles of the best evidence model, and goes further by incorporating the other positive practices identified, is required. Proposals for change are advanced, and informed by the research findings, which seek to regulate questioning strategies and implement wider welfare safeguards with the aim of ensuring a holistic notion of ‘fair treatment’. The model can be used to evaluate, guide, and improve future cross-examinations within rape trials.

• Thesis Type: Thesis
• Publicly Available Date: Jun 10, 2020
• Public URL: https://uwe-repository.worktribe.com/output/1491095
• Award Date: Mar 9, 2020