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Univ. of South Carolina School of Law

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Thursday, November 29, 2007

Anarachy in the U.K.?: England Overhauls Evidence Rules and Court Procedure in Rape Cases

As a result of the conviction rate for reported rapes dropping from 33% of reported rapes in 1977 to only 5.4% in 2005, England is set to make some revolutionary changes to how rape cases are tried.  First, a package to educate juries will be developed next month by a team of judges, doctors, and academics.  The packet will attempt to dispel "myths" thought to have led to a fall in conviction rates.  The packet will contain information about why rape victims are sometimes slow in reporting and why they sometimes seem unemotional in the witness box.  In other words, it seems to me that England will be giving jurors a packet detailing Rape Trauma Syndrome.  Initially, officials had floated the idea of expert witnesses being called in rape cases to testify about how rape victims behave, but the idea was rejected as creating a potential minefield.  England will reverse the current law and find that when a rape victims tells details of an alleged rape to a friend or relative, those statements are admissible, even though they now constitute inadmissible hearsay.

I'm ambivalent about whether simlilar measures should be taken in the Unites States.  I have previously argued that Rape Trauma Syndrome evidence is often useful and, in fact, should be used to establish the admissibility of excited utterances made when an alleged rape victim is presented with a subsequent startling event or condition (such as a rape victim making an emotional statement when she runs into her assailant weeks after the attack). See Colin Miller, A Shock to the System, 12 Wm. & Mary J. Women & Law 49 (2005).  That said, in that situation, Rape Trauma Sydrome would be used in combination with an applicable hearsay exception to allow for the admission of an out-of-court statement.  I'm not quite sure that England is acting properly in holding that any statement that a rape victim makes to friends or family should be admissible, without regard for other indicia of reliability (of course, there might be limitations to England's new rule that the articles don't mention).

Also, I'm not quite sure why England adopted the "package" approach but rejected the expert witness approach.  When an expert witness is called to explain how the alleged victim's behavior is consistent with Rape Trauma Syndrome, defense counsel can then challenge that expert's credentials and conclusions.  The introduction of a packet, on the other hand, seems to suggest to jurors that what they are reading is the final word on the issue.  This is why in American courts, we allow learned treatises to be read into evidence, but we don't allow them to be admitted as exhibits in most cases under Rule 803(18).  Again, though, it is tough to come to any final conclusions without seeing the entirety of England's plan.

-CM   

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