Cultural scaffolding and the long view of rape trials

Equality before the law is a fundamental principle of criminal justice, set out in Article 7 of the 1948 Universal Declaration on Human Rights. It has long been assumed that neutrality is the optimal way to achieve this, and the juror’s affirmation promises to give true verdict according to the evidence and nothing else. However, the commitment to neutrality and equality is belied by well-established biases at every stage of the justice process. This is particularly true in rape trials, where societal beliefs about gender, age, social class, ethnicity and sexuality influence barristers’ argumentation (Smith, 2018). This chapter uses English court observations to argue that reform of rape trials must acknowledge and address the differential positioning of various actors. It takes the long view, outlining historical reasoning about rape allegations and those who make them, to demonstrate how these beliefs remain embedded within trial. Indeed, it argues that these past beliefs, although now ridiculed, are part of the cultural scaffolding that justify and reinforce controversial aspects of modern-day defence tactics. The chapter concludes by highlighting the need to acknowledge the additional barriers faced by minoritised witnesses, in line with Sir John Gillen’s recommendations for greater awareness of intersectional considerations.