Challenging rape myths and re-directing juries
Submitting Institution
University of SussexUnit of Assessment
LawSummary Impact Type
LegalResearch Subject Area(s)
Studies In Human Society: Criminology
Law and Legal Studies: Law
Summary of the impact
The research of Prof Jennifer Temkin on rape myths and stereotypes has
influenced the way in
which rape trials are conducted and drawn the attention of participants in
the criminal trial process
to the dangers of stereotyping victims and defendants.
The effects of Temkin's research include:
- bringing about change to the instructions given by judges to juries in
rape trials; see the revised
guidance introduced by the Crown Court Benchbook used universally by the
relevant judges;
- training prosecutors, advocates and judges in rape myths and the risks
of stereotyping;
- raising public awareness about rape myths and stimulating media debate
around rape, sexual
stereotyping and the assumptions made about victims and alleged
perpetrators of sexual
offences; and
- informing government policy on measures relating to rape
investigations.
Underpinning research
The research underpinning this case study was an empirical study carried
out by Temkin in 2006-08
in conjunction with Prof B Krahe, Professor of Psychology at Potsdam
University and supported
by a competitive funding award from the German Science Foundation. The
context for the research
was the persistently low conviction rate for sexual offences, despite
various legislative changes.
The key legal questions in relation to non-consensual sexual offences are
whether the complainant
in fact consented or whether the defendant had reasonable grounds to
believe that there had been
consent. The Temkin study investigated the possibility that it is
attitudes, rather than law, that need
to change before conviction rates might increase. In other words, myths
about `real' rapes could be
central to answering the crucial legal question of whether consent existed
in a particular case.
The research therefore addressed the extent to which stereotypes of what
`real' rape looks like can
influence all stages of the criminal process, from whether a rape is
reported in the first place right
through to whether a conviction ensues after a jury trial. Police
treatment of the victim may be
influenced by notions of what constitutes rape, as might be the decision
of the Crown Prosecution
Service, since the further away from the `real' stereotype the case seems
to be, then the less likely
may be the decision to prosecute. In court, barristers and judges may also
have their own reliance
on stereotypes and the members of the jury may form negative views of
victims from stereotyping
myths and, as a result, not find the defendant guilty. There is
accordingly a potential `justice gap'
between the number of reported rapes and the number of convictions that
might be explicable by
the effects of stereotypical perceptions of `real' rape (e.g. that rape
only occurs by a stranger,
outdoors, threatening or using violence upon a victim screaming and
struggling to escape and who
reports the attack immediately, or that there is no rape where the woman
has been drinking,
flirtatious or wears revealing clothing). Temkin's and Krahe's empirical
work was thus designed to
test the prevalence and effect of rape myths and stereotypes.
The research consisted of a number of studies:
- Law students (and thus part of the likely pool of lawyers for the
future) were asked to react to a
number of written sexual-assault scenarios. The results showed adherence
to the `real rape'
stereotyping in which, for example, the defendant was seen as less
blameworthy when the
parties knew each other.
- A similar study was conducted with more than 2,000 members of the
public eligible for jury
service. Again there was conformity with the stereotyping thesis.
- The research also tested the effectiveness of a Home Office poster
campaign aimed at
highlighting questions of consent. Temkin's research found that it made
no difference to
attitudes whether the sample group had seen or not seen the allegedly
hard-hitting posters. The
poster campaign, accordingly, was seen by the research as ineffective in
combating
stereotypical attitudes.
- The final study consisted of qualitative interviews in which 17 judges
and 7 barristers were
asked to detail their own experiences of criminal trials and
stereotyping. These interviews
confirmed the prevalence of stereotypical views held by jurors — e.g. by
being over-sceptical
about women who allowed men they had just met to see them home or who
had inconsistent
recall about events or who had taken time to complain.
On the basis of this project, Temkin and Krahe made a number of
recommendations relating to law
reform and changes in trial processes, and called for more training of
judges and barristers
together with a media campaign starting at school level, to educate the
public about rape myths.
References to the research
R1 Temkin, J. and Krahe, B. (2008) Sexual Assault and the
Justice Gap: A Question of Attitude.
Portland: Hart Publishing.
R2 Krahe, B. and Temkin, J. (2009) `Addressing the attitude
problem in rape trials: some
proposals and methodological considerations', in Horvath, M.A.H. and
Brown, J.M. (eds)
Rape: Challenging Contemporary Thinking. Willan Publishing, 301-24.
R3 Krahe, B., Temkin, J., Bieneck, S. and Berger, A. (2008)
`Prospective lawyers' rape
stereotypes and schematic decision making about rape cases', Psychology,
Crime and Law,
14(5): 461-79.
R4 Temkin, J. (2010) `And always keep a-hold of nurse, for fear of
finding something worse':
challenging rape myths in the courtroom', New Criminal Law Review,
13(4): 710-34.
Outputs can be supplied by the HEI on request
Details of the impact
Temkin's work on the prevalence of rape myths in the legal process has
effected change in a
number of ways that mitigate the risks of stereotyping. In the court
itself, juries are now instructed
differently in ways which recognise Temkin's research. Her work is
sought-after in training judges
and barristers and informs Ministry of Justice policy. She has generated
debate around `real rape'
stereotyping across disciplines and among practitioners in jurisdictions
outside the UK, and has
generated a general public debate by her television, radio and newspaper
interviews (this is all
more particularly detailed as follows:
• Impact on trial process rules
The Crown Court Benchbook (the manual for trial judges) was
amended to include warnings to
the jury about the issue of stereotyping. In Chapter 17 of the 2010
edition, Section 1, `Alerting
the jury to the danger of assumptions', contains illustrative directions
to juries that take account
of research findings, including those of Temkin. Chapter 17 explicitly
refers to `Research by
those who are expert in the subject' and, on p. 356, footnote 646 cites
the `Justice Gap' book
[see Section 5, C1].
• Policy impact
The `Justice Gap' book led to a request from the Scottish Parliament to
submit evidence to the
passage of the Sexual Offences Bill 2008 (26 September 2008).
The Ministry of Justice appointed Temkin as peer reviewer for the
Ministry of Justice (2010)
Research Report Providing Anonymity to Rape Defendants: An Assessment
of Evidence.
Temkin provided a detailed analysis which demonstrated that key areas of
research had been
omitted from the draft report. Temkin also set out the arguments for
retaining the present law,
which does not grant anonymity to defendants. Most of these arguments had
been missed in
the draft. She also set out the historical and psychological evidence.
[C2]
The final report concluded that there was not enough evidence to support
a change in the law in
accordance with Temkin's research findings; the consequence of this has
been that the law has
remained unchanged.
• Reshaping practitioners' attitudes
The primary end-users for Temkin's research are practice professionals
involved in the criminal
trial process for non-consensual sexual offences. These include judges,
barristers, solicitors
and a range of expert witnesses drawn from medical, psychological, social
work and police
professions. Temkin has undertaken training programmes for judges,
prosecutors and other
relevant professionals to highlight rape myths, as indicated below. The
training examined the
key role of attitudes to rape in the processing of rape cases by the
criminal justice system. In
particular it analyses rape myths, what they are and how they work. The
purpose of this is, first,
to encourage those involved in the processing of rape cases to examine
their own attitudes,
which may influence the way they handle rape cases. Second, the purpose is
to encourage the
challenging of rape myths when these are utilised by the defence in rape
cases. Members of the
public who sit on juries may well harbour stereotypical ideas about rape
and, if these
stereotypes are encouraged in rape trials, this may affect their outcome.
This type of education
is therefore geared towards achieving fairer results in rape cases.
Training programmes have included:
- `Rape Myths and their Implications', Sexuality and Sexual Health
Section, Royal Society of
Medicine, 14 March 2008.
- `Sexual Offences and the Law', Royal College of Obstetricians and
Gynaecologists, Forensic
Gynaecology Training Conference 2009.
- `Attitudes and the "Justice Gap": The Perennial Challenge of Effective
Change', Canadian
National Judicial Institute Seminar `Women and Girls and the Justice
System', Ottawa, 3
November 2009.
- `The Myths and Stereotypes of Rape', Crown Prosecution Service, Rape
and Serious Sexual
Offences Training Courses, March, May, June, September and December
2009, December
2010.
- `Tackling Rape Stereotypes within the Criminal Justice System',
keynote address, Division of
Forensic Psychology Annual Conference, University of Kent, 2010.
Since 2010, Temkin has been a Member of the Board of the Diploma in the
Forensic and
Clinical Aspects of Sexual Assault (DFCASA), Society of Apothecaries of
London. The Diploma
is concerned with the training of the forensic medical examiners (FMEs)
who are responsible for
the medical examination of male and female sexual assault complainants who
report to the
police. These examinations are necessarily crucial to the legal process.
There has been
growing evidence that FMEs were inadequately trained and therefore failing
at this task.
Therefore the setting up of the Diploma to educate FMEs and raise the
standards of medical
examinations in this area was a very welcome development. The Board's task
was to assist in
the setting up of the Diploma by proffering advice and support. The
Diploma is research-based
so that the best treatment for victims can be given. Jennifer Temkin's
research and advice have
assisted the creation of this Diploma along with that of other members of
the Board.
• Challenging the public perception of `real rape' (and thereby
correcting misperceptiions
about rape in the public mind and shaping the on-going debate about
sexual assault)
Temkin discussed her research and urged reform and changes in public
attitude to rape in a
range of radio and television interviews. Examples include BBC, ITN
and Channel 4 News, Sky
News, Panorama, Dispatches, BBC Radio 4 World at
One, Law in Action, Woman's Hour, The
Moral Maze, File on Four, Radio 5 Live.
Temkin has also explained and canvassed her research online: `Rape Myths:
Why We Still
Believe Women "Ask for It"', The Times online, 11 September 2008
(with B. Krahe). The `Justice
Gap' book received a detailed review in The Guardian, 1
April 2008.
Web blogs and other fora that discuss rape issues have used Temkin's
research in support of
arguments in favour of reform [C4].
Sources to corroborate the impact
C1 The Crown Court Benchbook (as referred to). In Rook
and Ward: Sexual Offences, Law and
Practice, HH Judge Ward states that these changes are attributable
to Temkin's research.
C2 Director of Analytical Services, Ministry of Justice (see also
letter of 12 November 2010 and
Ministry of Justice report Providing Anonymity to Rape Defendants: An
Assessment of
Evidence.http://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-
research/anonymity-rape-research-report.pdf
C3 Temkin cited in Court of Appeal decisions: R v Bree
[2007] 2 All ER 676, R v Jheeta [2008] 1
WLR 2582.
C4
http://suite101.com/article/the-slutwalk-a-focus-on-womens-rights-and-freedom-of-choice-a387308