It is obvious that there needs to be clearer guidelines on the medical procedures that take place in sexual offences investigations. The study showed more positive results from victims examined in London which has clear guidelines on the matter. The system currently operating in London has had success not only with the victims but with the police and doctors operating under them. It seems that the use of such guideline throughout the country would significantly improve the victim's experience of medical examinations.
However, there seems to be little indication that such guidance will be implemented. Without further guidelines, the process of a medical exam will continue to be upsetting for the victim, and may in fact deter her from having such an exam which can be crucial evidence. It is apparent that the defence plays on public perception to adduce the jury into returning a 'not guilty' verdict. Of particular use to the defence is the consumption of alcohol, research suggests that many believe a woman is partially or totally responsible for being a victim of sexual harm is she has consumed alcohol18.
Despite judicial direction that it is the issue of whether consent was given or not despite the consumption of alcohol19, it seems clear that the defence uses this to raise doubts about the victim. Alongside this, the victims dress and sexual history is also used by the defence to adduce a not guilty verdict. The use of such evidence can make the victim feel as though it was her own fault, and perhaps discredit their reputation outside the realms of the trial, with the idea that 'she had it coming'. Clearly, a verdict of not guilty will have significant repercussions for the victims outside of the criminal justice system.
Particularly fear that the defendant may do it again and the experience the victim will have in the community, as a not guilty verdict appears she is lying, meaning she may experience repeat victimisation in the community after already going through the harrowing experience of a sexual violence trial. Temkin's study20 on advocates perspective, clearly shows that many prosecutors do not have contact with the victim before the trial, despite the Royal Commission on Criminal Justice (1993; Cm 2263) suggesting that it would benefit the prosecution's case to be able to meet with the victim beforehand.
There is a strong feeling that inexperienced advocates are often chosen to prosecute cases of sexual harm, this can without doubt affect the success of the prosecution, meaning the victim may have gone through the trauma of a trial with little hope for conviction, purely down to inexperience in the prosecuting advocate. Undoubtedly, the perspectives of those prosecuting and defending have a large impact on the victim's experience of the criminal justice system. Many defence lawyers work on the fact that juries will not convict if the victim can be depicted as promiscuous or an unreliable witness.
It is here, we see an overlap of the problems with medical examinations at trial, if doctors during medical examinations have taken a sexual history the prosecution can do little to stop it being entered as evidence in court. Without clear judicial guidance on the admissibility of such evidence the defence will continue to play on public misconceptions to discredit the witness. Noticeably, the experience of having such personal information made public and used against them in court will have an extremely detrimental impact on the victim, causing them additional harm to that which they have already experienced.
It is clear that, the victim's experience of the criminal justice system is far from ideal. From the discussion above there are many reasons why a victim may not wish to involve the police and become involved in the criminal justice system. From the initial problems of police disbelief and fear of the humiliating experience of the medical exam, to the problems of lack of evidence, the way the defence argument is structured and public perceptions of rape victims. It is obvious that until victims of sexual offences are made to feel secure in the criminal justice system the high attrition rate will continue.
Despite hopes that the 2003 act would significantly improve the situation, it seems clear that until a drastic cultural change is seen and the public educated to prevent the current misconceptions having such a large impact on verdicts, such a change will require long term initiatives beyond the 'quick fix' of new legislation. Until such time victims will continue to experience further harms due to the criminal law and the system within which it operates.
1 Crime in England and Wales. (2009:54) 2 Lacey, Wells and Quick (forthcoming d) pg 5 3 HMCPSI (2007:34) Para 2. 3 4 AIUK (2005) 5 Madigan and Gamble (1991) 6 Packer (1968: 153-74)