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Rape and Sexual Offences - Chapter 4: Myths and Stereotypes

This guidance is currently out for consultation - see sidebar|Legal Guidance, Sexual offences

PLEASE NOTE - INTERIM GUIDANCE: APPLIES FROM 1 NOVEMBER 2020

Introduction

The Code for Crown Prosecutors (‘The Code’) is issued by the DPP and gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. Prosecutors must apply the Code to every case they consider.

The Full Code Test sets out two stages that must be met before a case can be prosecuted: the evidential stage and the public interest stage. To satisfy the evidential stage of the test there must be a realistic prospect of success.  When assessing a realistic prospect of conviction, a prosecutor must assume that the jury hearing the case will be objective, impartial and reasonable, properly directed and acting in accordance with the law (section 4.7 of The Code. Prosecutors must not apply a ‘bookmaker’s test’ where an attempt is made to second-guess potential jury prejudice (see R (FB) v Director of Public Prosecutions [2009] EWHC 106 (Admin).

Rape can have a devastating impact on victims, families and entire communities, and we will almost always seek to prosecute where there is sufficient evidence to do so. Rape and serious sexual offences (RASSO) cases are some of the most serious and complex offences we deal with. The prosecution of RASSO cases is complicated by the existence of numerous misconceptions surrounding the offence of rape, perpetrators of rape and victims of rape.

In Miller [2010] EWCA Crim 1578, the Court of Appeal endorsed the use of properly tailored directions by judges to counter the risk of stereotypes and assumptions about sexual behaviour and reactions to non-consensual sexual conduct. The direction may be given at the outset of the case or as part of the summing up (Crim PR Rule 25.14). The judge should discuss the proposed direction with counsel. Directions in relation to sexual offences can be found in Section 20 of the Crown Court Compendium Part 1: Jury and Trial Management and Summing Up.  The guide provides useful statements and examples which we seek to draw upon when countering myths. The guidance states: “There is no typical rape, typical rapist or typical person that is raped. Rape can take place in almost any circumstance. It can happen between all different kinds of people. And people who are raped react in a variety of different ways.”

In recent years, linked to technological advancements (for example online dating, use of social media and sending of sexual imagery and messages), there have been dramatic and rapid changes in sexual behaviours and encounters. Reflecting these changes, RASSO prosecutions are increasing in complexity. Cases involving young people, who are acquainted with one another, can be particularly challenging. Given technological advances and changes in sexual behaviours, there is an increased risk that myths and stereotypes may arise in rape cases in relation to the complainant, the offender, consent issues and/or the circumstances of the alleged offending.

Rape myths and stereotypes should play no part in the prosecutor’s decision-making; they do, however, need to be identified and addressed where they arise in order to ensure a proper case-strategy and effective advocacy when presenting a case at trial. Some behaviour may seem counter-intuitive and require explanation as part of the case building strategy.

The purpose of this section is to identify and address (with reference to the law, relevant caselaw and judicial directions) a range of myths related to:

  1. Rape
  2. Perpetrators of rape
  3. Victims of rape

It is important to note that this document does not provide an exhaustive list of all the possible myths surrounding rape. In addition, it is important to note that myths maybe deployed subtly and can overlap with one another. All these factors should be viewed with an understanding that there is no typical rape victim or perpetrator and no single response to rape or sexual abuse. It may also be helpful to refer to the chapter within the rape legal guidance on ‘Understanding Victim Vulnerabilities’. The CPS has published a factsheet outlining a range of key facts about how allegations of rape are prosecuted.

The document is designed to be accessible and practical - you can use the hyperlinks below to find information relating to the specific myth(s) which are relevant to your case.

We are aware that documents which lead with information on the myths can be counter-productive in that they reinforce the very myths which need dispelling.

Annex A provides information on challenging assumptions which might be presented to prosecutors within their work.

Further reading

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