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Who Protects Us: When The Victim Is Put On Trial

Illustration by Elysia Stent

CW: sexual assault, rape

The UK criminal justice system, or more accurately the UK criminal system, is an edifice rife with procedural barriers obstructing a survivor’s legal path to justice.

Despite the widespread social realisation of the unfair responsibility traditional questions place on survivors, questions such as ‘What were you wearing?’ continue to be used by the justice system today. It certainly shocked me, at least, when I was asked this just last year by the police.

Questions about a survivor’s sexual history also remain consistently popular, cross-examining the survivor’s past sexual history to suggest they simply may be the ‘type’ of person who is likely to consent to such behaviour.

However, whilst paramount in discussions of the criminal justice system’s faults when dealing with sexual assault, these issues will not be the focus of my final article.

Although I can empathise with being subjected to this general disregard within the criminal system, I cannot tell someone else’s story. 

You see; I was what they call ‘lucky’. 

I was lucky that I was covering up with my age-13 Stanford University t-shirt, denim skirt, school tights, and trainers.

I was also lucky that I had no sexual history to examine. 

But this luck does eventually run out.

Despite the distinct bias in the legal system toward the shy and unassuming young girl, the ‘type’ of girl who could not possibly be ‘asking for it’, any survivor’s luck is still exhausted before the investigation process is even over. 

And this is the focus of my final column.

In cases of sexual assault, unlike other criminal investigations, it is not the accused who is put on trial. It is the victim. 

Recent guidance from the Crown Prosecution Service increases the likelihood that survivors’ private therapy notes will be accessible by the courts. Until now, private therapy and counseling notes were regulated to only be disclosed in criminal investigations when there was a ‘reason to believe they could undermine’ the prosecution. However, this new guidance will drastically lower the bar, stating that therapy notes can be secured if they ‘may’ be ‘relevant’ to the case.

This drastically reduces the rights to privacy for survivors, as arguably, all therapy notes have the potential to be seen as relevant.

You may think this is just guidance. There is no obligation for the courts to follow this advice, unlike with legislation.

However, the dystopian but nonetheless real truth of the matter is that this guidance is treated as regulation.

Straight after I made my full statement to the police, a traumatic and intense experience stretching well into the night, I was ‘asked’ to sign a series of release forms. These were to evidence my consent for my medical records, counseling notes, and rape crisis centre support notes to be released for general investigation. 

In fear that my denial to sign, or even delay to sign, would suggest I had something to hide, I hastily ‘agreed’ to allow all my personal and health records to be freely accessible to the investigatory team. 

Once I was aware that anything I spoke about in counseling was accessible by the judicial system, I did not feel safe talking freely to a therapist. 

This inappropriate focus on victim credibility is central to understanding how the injustices of the legal system in sexual assault cases pervade in the criminal process. Furthermore, at a time when survivors are waiting up to three years for a trial to take place, the reality facing survivors across the country is years and years of reliving their trauma without therapeutic support. Then, a year or two down the line, this waiting is revealed as pointless, as they are told their case is being dropped.

However, I still held hope in the knowledge that I was nearing the top of the year-long waiting list for an OSARCC support group. If I was to feel genuinely understood and authentically heard anywhere, I thought it would be in this group. I cannot describe my simultaneous joy and relief when I received the email that I was due to be in the next round of group sessions. 

Yet, this joy was short-lived, as the bottom of the signup form asked me to check a box to confirm that I have not, and nor do I plan to, report my experience to the police.

I do not intend this to be a criticism of OSARCC and other SARCs personally. To this day I believe their decision was with my best interests at heart. I was informed that any participation in a support group setting could be used by the criminal system to suggest I had been primed or even prepped for my statement. 

To suggest I had been influenced by other survivors’ stories. 

To suggest that I have, in essence, collected and collated evidence to create my own original experience. 

In other words, the denial of group therapy to survivors is a direct consequence of our legal system which effectively serves to put the victim on trial. The victim is placed on trial in the cross-examination box and relentlessly interrogated about what they were wearing, about their sexual history, about their medical records, about their counselling. 

However, it is not just conversations with a trained professional which are examined.

A survivor’s conversations with their friends and family play a large part in the collection of evidence for cross-examination. 

I was asked to release the names and contact details of every individual I spoke to about my ‘assault’. This, however, was not enough. I was further asked to release all of my messages over text, Instagram, Snapchat, and Facebook Messenger where I so much as mentioned my ‘assaulter’.

In fear that my refusal to release my private messages would suggest I had something to hide, I ‘agreed’. I sent hundreds of screenshots from any conversation I had which mentioned my ‘assaulter’.

Why were these relevant?

Because the criminal justice system will pursue any discrepancies between your various accounts of the ‘assault’ and use these as evidence. As confirmation. As ammunition. 

They scrutinize your ‘story’ for inconsistencies, differences, even single word changes. It doesn’t matter that you, as a human being, will likely have different, closer social connections to different people, and hence don’t feel comfortable disclosing certain parts of your ‘assault’ to just anyone.  It doesn’t matter that you talk to your parents and family in different ways, using different language, than you may use with your friends. It doesn’t matter that the process of you coming to terms with what happened is not usually an immediate realization, nor a linear progression. Further, it doesn’t matter that your account may develop over time as the events you’ve blocked out slowly flash back through your mind. 

Differences in any of your conversations are seen as inconsistencies, which apparently can only indicate dishonesty. This proves that in at least one case, you have lied. And if you are lying in one instance, what’s to say you aren’t lying again now?

Further, as a survivor, you’re not allowed to show anger. You’re not allowed to feel upset, scared, or violated. If you do, it will only be twisted to show that you are harbouring spite. This vengeful spite leads to what is apparently the only logical conclusion: that you fabricated the entire story. 

Maybe you were hurt he didn’t reciprocate your crush, or because he then started dating someone else. Maybe, as someone suggested to me, you were just two irresponsible young people having fun who just got things a little bit wrong. Maybe I’m just looking for revenge. 

Why else would I be upset? Why would I be angry?

Before I began this column it crossed my mind that my writing may be used against me. 

I was aware I may be painted as an angry, vengeful and spiteful woman looking for revenge. But honestly?

I don’t care. I don’t care anymore. I will not remain silent, keep my head down, and simply try to get through my time left at Oxford. I will not pretend that what happened to me does not matter.

It matters. I matter. We all matter.

The recent guidance issued by CPS means that, once again, survivors are made to choose between seeking justice and seeking support when they should have an unequivocal right to both.

I refuse to make this decision. I choose both. I choose justice in allowing my truth to be heard. I choose support in this community of survivors.

Ultimately, this choice will answer our question:

Who protects us?

We protect each other.