23 Apr 2024 Justice

A justice system that works for survivors

As a society, we lay a heavy burden on those who have experienced serious crime as victims, survivors, or witnesses.

We call upon them to recount their experiences, often again and again, in the face of trauma, disbelief and outright hostility. It is a burden that most are more than willing to shoulder, not for revenge or gain, but to prevent others from suffering in the same way.  

They do a precious service to their community by telling their stories, doing so with truth, with grace and courage. So, you would think, the very least that the community, and the agencies that represent it, can do is to treat them with respect and humanity.  

Far too often that is not the case.  

We have an adversarial justice system, but in criminal cases the opponents are supposed to be the prosecution, representing the state, and the defence. Survivors and witnesses are not adversarial actors, and yet look at how they are treated: 

• as though they themselves are on trial; 

• with the trauma of their original experience intensified, even overshadowed by the trauma of the court process;  

• central to the facts of the case, yet the last to know what is happening and why; 

• and as pawns in courtroom games and collateral damage in performative conflicts.  

It’s no coincidence that all this is overwhelmingly true of one type of crime, a type that I know of all too well from my previous work in the Rape Crisis network, and I refer colleagues to this previous employment which is included in my register of interests.

The survivors supported by my former colleagues don’t only carry the direct consequences of their experience, but struggle through a toxic morass of misogyny, structural violence and a male impunity that’s embedded in tradition, assumption, and myth. 

The bill before us today is part of a long process of examination, research, consideration and consultation about these issues. I’d like to pay tribute now to all who have been part of that work, in whatever capacity, and all who continue to take it forward.  

Yes, the provisions are challenging, not least to longstanding tradition. But the changes this bill proposes are not made on a whim, for the sake of change itself or necessarily to follow other jurisdictions. They are made because the evidence suggests that justice, both process and outcome, urgently requires it.  

For it is not just to have a verdict that judges cannot explain, that leaves defendants stigmatised and survivors traumatised, that serves only to excuse juries from the hardest decision. For it is hard, we know, to convict men for doing what, deep down, many still expect “real men” to do.   

It is not just for courts, offices and police stations to be staffed with people who still do not know, perhaps who choose not to know, the effects of trauma and the need to act appropriately.  

It is not just to have juries so large that not all members need fully to participate. 

It is not just that abusers in many civil cases should still be able personally to cross-examine those they have abused, and that vulnerable witnesses should be denied the protections that they would receive in other proceedings.  

It is not just that rape survivors should be questioned about their most intimate lives and relationships without the benefit of independent legal advice or that they should be named against their will on social media.  

And it is not just that women should undergo all this, all the horror of reliving their trauma, explaining their pain and postponing, perhaps for years, their hopes of resolution, only to have their truth denied by the stubborn persistence of rape myths, those old lies of inappropriate response, invisible emotion, delayed reporting and false accusations.  

It is, perhaps, encouraging that the proposal for a pilot judge-only court is the most controversial and contested part of this bill. While the Tory government in England does its best to suppress even the knowledge that juries can acquit a defendant, such as a climate protector, when it is equitable to do so, it’s a relief to hear that their Scottish colleagues have such affection for juries.  

Because juries do matter. And it matters that they hear the truth, the whole truth, and nothing but the truth. Any pilot established under these provisions must, I firmly believe, be created and implemented with sensitivity, the active participation of all relevant stakeholders, strict time limitations and in conjunction with serious and urgent work to address the prevalence of rape myths, not only in jury rooms, but everywhere.  

I will be voting for this bill today, not in triumph or challenge, but in quiet remembrance of all those for whom it has come too late. Let us do justice, for them, for those who wait now, and for those who will thank us in the future.