Advocacy skills in domestic abuse and rape cases
The particular skills that have to be brought to bear on both sides, particularly in rape cases where complainer and accused know each other
Domestic abuse and rape cases can be tricky. Whether prosecuting or defending such cases, there is no doubt that particular advocacy skills are required. This essay explores some of the difficulties which can arise.
Rape cases, and all historical cases that would now be called rape under the Sexual Offences (Scotland) Act 2009, are within the privative jurisdiction of the High Court of Justiciary. Historical and recent domestic cases may be prosecuted in the sheriff court at sheriff and jury level or summarily.
The first rule of advocacy is to pitch the entirety of your submissions, in relation to both factual and legal issues, towards your known audience.
Since the 2009 Act and the increase in scope of the nomen juris of rape, Crown Office policy dictates that all allegations that include penetration are indicted in the High Court. By definition the factual decision maker is a jury. In the jury system we depend on untrained individuals of varying intelligence, living up to their oath, addressing their task without prejudice and applying a judge’s charge without demur. This presents difficulty for the advocate addressing any allegation of sex crimes. Those of us who practise in the criminal courts witness the first act of any balloted juror as looking at the accused. One cannot but wonder whether the juror is subconsciously and perhaps subliminally also making a qualitative assessment of whether the accused “looks” guilty. In these modern times of political and media interest in sex crimes, this presents its own difficulty.
The media regularly carry interviews and comments from the Justice Secretary, and indeed the two law officers despite their obligation to remain apolitical, that our criminal justice system fails the victims of sex crimes. On the basis that jurors will have read such comments, they will have witnessed two messages from on high.
The first is that those alleging criminal activity are “victims” rather than “complainers”, suggesting an institutional belief that those to be tried are guilty. This has been changed recently, on the basis of the decision in Wishart v HM Advocate  HCJAC 168 that the victim should be referred to as the “complainer”. The second is that the conviction rate for such crimes is inadequate and therefore of itself represents injustice. Following this to a conclusion impacts on the advocacy required. The prosecutor will require to demonstrate the complainer as someone who should not fall into the category of being disbelieved in yet another failed prosecution, and the defence advocate requires to examine and submit in such a way as to overcome the potential prejudice, subliminal or actual, that a jury may have as soon as the indictment is read. Given the politicisation of this type of crime, any decent minded individual, despite their judicial role, may feel that it is their duty to redress a perceived acquittal/conviction imbalance.
From the very first question asked by the defence advocate, the jury as a whole is likely to have a suspicion as to the tactics being deployed in order that the advocate can defend the indefensible. Television drama does not help. The concept of a sex offences trial being reduced to within one hour of television leaves only media examples of cheap advocacy, yet such examples will create a perception amongst the public. Jurors individually are likely to expect an onslaught of base questioning as to a complainer’s provocative dress, her sexual past, drunkenness or her antics on the date libelled. Good advocacy, whether by prosecutor or defence, ought to allow the individual jurors to retire pleasantly surprised as to the civilised nature of the examination of a complainer, which should always be devoid of gratuitous humiliation. Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 were enacted in their present form to prevent such humiliation.
Another myth which requires to be consciously considered is precisely what the crime means. Individual men and women will have their own preconception of what is meant by the nomenclature “rape”, also likely to be media driven. In relation to news reports, only the most brutal of rapes are ever likely to merit more than a 100 word sidebar piece in a tabloid newspaper. As for drama, the preconception is necessarily based on what makes good television or film. This will tend towards brutal stranger rapes. The reality of course in our courts is that the greatest percentage of prosecutions involves allegations by women whose alleged attacker is known to them and in whose company they have consensually been. The marked difference between reality and fiction must be impressed on a jury in every message delivered by the advocate. What must be overcome in most cases is imparting to a jury that they are not there to investigate an allegation, but to make a finely balanced and correct decision based on evidence.
In the majority of cases this will involve the issue of consent, or belief of consent. There will be situations where jurors will be surprised to be deciding on the issue of consent where a couple have been engaging moments before the alleged crime in intimate or lesser sexual activity. One can therefore see that in every question and in every proposition advanced in a speech, the prosecutor is burdened with demonstrating to a jury that the scenario before them actually amounts to the legal definition of rape, and one perhaps beyond their preconception. On the other hand the defence advocate requires to overcome a prejudiced revulsion at the very nature of the crime, and show that the evidence presented by the prosecutor represents a scenario eloquent of consent, either stated expressly or implied by action.
The skillset of the prosecutor is to lead evidence from a complainer so as to meet the statutory test, and demonstrate how the action complained of can amount to a crime without the accused having a reasonable belief that he enjoyed consent. The work of the prosecutor is unlikely to be confrontational in this regard, but it requires thoroughness as to detail. It goes beyond allowing a complainer to tell her story. For “the story” to be accepted as a crime, the scene and surrounding circumstances must be adequately set. In essence, as much work must go into taking the reasonableness out of reasonable belief of consent, and demonstrating to a jury not just the veracity of the complainer as the principal witness, but also that no person putting himself in the place of the accused could reasonably be mistaken as to the complainer’s lack of consent.
It is important for the prosecutor, ultimately commending a conviction to a jury, to attempt to make the locus and circumstances into a live image in the minds of the jury. In so doing, and questioning witnesses with a view to ultimately delivering a speech, the prosecutor must be able to demonstrate complex human interaction beyond the sterility of a courtroom. In short they must make the event real. They must demonstrate a scenario to every female on the jury that would cause them to place themselves in a position of empathy with the complainer, and also demonstrate to every male on the jury that if he were in the position of the accused, he could not be left in any doubt that the behaviour was anything other than non-consensual. Only by so doing can the prosecutor persuade a jury that he or she has met the standard of proof beyond reasonable doubt.
Much of what is said in relation to the skillset of the prosecutor may be stated in opposite as to the skillset required of the defender. Tactics vary in this area. A defender may to an extent require to dehumanise the situation, so the jury do not focus on emotions in evidence before them, but clinically apply the judge’s charge properly, impartially and without preconception. Another may do the opposite and raise the “very grey area of doubt”, humanising the situation and relating it to the everyday experience of life known to each and every juror.
Very often there will be little in dispute by the defence in relation to the facts of the complainer and the accused being in the same place and in the given circumstances at the time of the libel. The lack of dispute is a means by which the defence advocate can focus the jury on the positive aspects of what they will later rely on in their speech. They can demonstrate that they are not there to belittle or bully a person who is exposing intimate behaviour to the 20-plus people required to convene a court, who will necessarily hear the evidence. Whilst it may be pushing the definition to suggest that a rapport could be established with such a witness, it is not beyond the realms of good advocacy for such questioning to establish in the minds of the jury that the questioner has nothing but respect for the dignity of the complainer.
At this point the facts and circumstances of each individual case will dictate how confrontational the examination need be, such as where the complainer alleges a forceful rape. In cross examination the good defence advocate should try to open in a non-confrontational way; there may be things that he/she wants the complainer to accept or agree with, and these should be explored first. Never begin with a full broadside, because if you eventually wish to ramp up the pressure, there will be nowhere else to go. One good way to secure your client's conviction is to seek unnecessary confrontation with a complainer who has obviously suffered serious injury or trauma. The art of the defence in such a case is to demonstrate the rationale of the accused's alternative explanation, rather than to antagonise the complainer needlessly before the jury.
From the defence perspective, there is a duty to test the Crown case and to set forth the accused's position. Failure so to do will earn adverse comment from the judge in their charge, and affect the weight the jury may attach to the defence case. In cases of this nature, there will inevitably be two opposing versions, a complainer saying she was raped and an accused disputing the claim, often as downright lies. The defence advocate may have to be confrontational with the complainer, but even with appropriate robustness in advancing their position to the court, may never succeed in having a complainer concede that crucial aspects of her testimony are false. In these circumstances the good advocate, rather than have the complainer repeat her evidence over and over, ought to draw a line under the issue on which they and the complainer will never agree. Simply putting the proposition to the complainer that they could ask the question all day without the complainer varying her evidence is sufficient.
In such circumstances the defence advocate has allowed proper cause for their client to recite his evidence of events, if so advised, but more importantly allows a transition in the line of cross examination to less confrontational issues. These might include how the pair had spent the preceding hours, how alcohol may have disinhibited the complainer in any intimate or sexual contact in the lead-up to the allegation, or even such information as may allow the jury to discern how well the accused and complainer were known to one another. Such lines, whilst not directly addressing the complainer’s evidence of a forced rape, may well serve to demonstrate to a jury the unlikelihood of her position. Move on to the areas of strength in the defence position – always remembering that may mean moving swiftly on from the complainer to focus the jury on the defence explanation through other evidence which is to follow.
To set this in context, there has been more than one case where the jury have seen from CCTV evidence the complainer and the accused, hand in hand, checking into a hotel together. There have even been cases where CCTV evidence demonstrates their leaving a hotel apparently on good terms. Such extraneous adminicles of evidence will be a far more useful tool in support of the accused's cause than a full blown onslaught on the complainer’s veracity as to the main event. The defence advocate must always appear to be a reasonable individual prepared to move on. Ultimately they will attempt to demonstrate that their client’s position is reasonable, and that will be more easily done if the jury’s perception is that the advocate him or herself is reasonable and not simply the hired mouthpiece of a predator.
More often than not the defence advocate, in addressing a jury, will attempt to demonstrate that the facts and circumstances surrounding a particular allegation could never be eloquent of the criminality suggested by the prosecutor. They will attempt to do so by reconciling the evidence of accused and complainer where it is not in dispute, and further demonstrate that in all the circumstances their client had acted with the reasonable belief that he had enjoyed sexual congress with a willing partner and not forced himself on a vulnerable victim. The defence advocate may use the “ethical appeal”,(1) and psychology, to portray the accused's position as someone connected to the jury, in that he is a man who has, up to the date in the libel, been a law abiding citizen, who has enjoyed a blameless life. Such a scenario may be painted where the accused is a young man who dated the complainer and depones that consensual sexual intercourse took place. The defence advocate has to persuade a jury that the man in the dock, with no previous convictions, could well be the son, brother or grandson of any juror. The image the advocate is portraying to the jury is that the accused is a man completely out of place sitting in the dock, with his telling the truth: the image that the accused has a future, a life and parents and if the jury find him guilty all that will be lost.
The skillset of any advocate involved on either side of the bar with such crimes is not one so far removed from non-sexual or non-domestic cases. It is one of experience and practical understanding of the psychology of human affairs. But there is one aspect which makes the crime of rape distinct from other crimes, and that is that the sexual act or acts are not per se criminal. Whilst it is established in our law that an assault cannot ordinarily be consented to, sexual unions between consenting adults are a healthy aspect of everyday life.
What, of course, criminalises the crime of rape is not a particular actus reus of a sexual nature but the mens rea in not taking proper cognisance of whether the act is consented to. Proof and defence thereof is so often not just the simple proof and defence of an act, but a demonstration of the mindset of two parties participating, consensually or otherwise, in intimate behaviour, normally in private and therefore outwith the gaze of other witnesses. The psychology of both parties may therefore be the greater issue. This often extends beyond a complainer’s commentary of the act complained of, to involve the defender requiring to reconcile issues such as distress to a jury. This may mean attempting to involve a jury in assessing how they might feel if they had involved themselves in something they later regretted. In short, both sides of the bar, in cases of this type, require to portray a global picture of the facts and circumstances of, and surrounding, the libel, as opposed to a focus on the minutiae of one or two particular facts, as may be appropriate in cases where the actus reus is per se criminal.
Prior to trial
These cases can be very challenging to prosecute, as the complainer, particularly in a summary trial for domestic abuse, may be reluctant to engage in the process, or express fear about so doing. Unlike the norm, she may have had a relationship with the accused and may still do, and both may be hoping to continue this after court proceedings are concluded. She may be embarrassed about attending court, or frightened as to how the accused may conduct himself thereafter. There may be children of the relationship. She may be concerned about the impact on them, especially if they are witnesses. She may have to consider her family, and the issue of contact after the court ordeal leading to more court appearances in the family court. There may be pressure from families or her community, together with “cultural traditions” not to attend court or depone against her husband.
Witnesses are often vulnerable individuals, so prosecutors need to have regard to the sensitivities in such cases. The use of special measures in terms of the vulnerable witness legislation can be very helpful in allowing complainers to be better equipped to deal with the court process. Prosecutors need to plan their approach carefully. The complainer is generally always called first, and if they depone as expected, the case may be corroborated by additional witnesses who speak to injuries, “999” tapes, admissions etc.
The most difficult part of a complainer's evidence can be the examination in chief, where it is the first time they have had to speak freely about the incident. Some complainers may never have been in a court. They may be feeling anxious or have seen programmes on television where complainers have been shouted at or told they are lying. This difficulty has now to some extent been overcome by Victim Information and Assistance (VIA),(2) whose support person may have been in contact with the complainer prior to the case calling for trial.
A complainer may benefit from a pre-trial visit to court premises before the case begins. This visit can be arranged by the prosecution through VIA, to provide general guidance and assistance. As a prosecutor it can often be important to make contact with the complainer in advance of the trial. Feedback from victim support agencies confirms that this can sometimes assist a victim in terms of confidence about giving evidence if they have met the prosecutor. It is not unusual, certainly in low level domestic cases, to find that complainers are unwilling to give their account even after statements are put to them, though this is not generally the case in a rape trial.
Before the trial commences, the defence is provided with full disclosure(3) of all the statements, productions etc by the Crown, in accordance according to guidelines set out in McLeod v HM Advocate 1998 SCCR 77. The defence has an opportunity to precognosce the complainer before the trial. There are differing views from defence advocates as to whether this should be done; some may take the view that if the complainer relays the events of the offence over and over again, it may reconfirm their initial police statement and be almost a form of coaching, preparing the complainer for court. Tactically they may not want the complainer precognosced.
Prosecution skills and defence skills are different in any criminal case. Rape cases and domestic abuse cases present challenges to all, because they can be emotionally draining cases to prosecute and defend. In rape cases 83% of accused are known to the woman complaining.(4)
Some cases, such as “stranger rape” cases, differ from domestic cases in that there has not been a relationship between the complainer and the accused. On one view they are perhaps not as difficult to prosecute, but can be more difficult to defend. Whilst it is still acutely distressing for the complainer, she has had no relationship with the accused and is likely to attend court willingly and give evidence without emotional reluctance.
A prior relationship may cause a complainer to ignore citation, or be a hostile witness (1995 Act, ss 140 and 141). If a complainer does attend for trial but is a reluctant witness, and does not speak to the events in the libel, this may lead to her statement being put to her under s 263(4) of the Act.
Moreover, it is not unusual for complainers to attend at court when the accused is appearing from custody, asking that the matter be dropped, or stating that it was a “misunderstanding”. This can lead to prior incidents between the parties being dealt with by Crown application in terms of s 275.
From the prosecution perspective, the Crown may want to lead the complainer's evidence in a way which strikes a balance between being effective and negating the effect that the process might have on the witness. For example, evidence given by CCTV may have less of an impact on a jury and this might make a conviction less likely. CCTV video links generally show a complainer from the neck up, and this can make it more difficult for the jury to engage with the humanity of the witness. The CCTV is devoid of the complainer's body language, which may show her shaking or twisting her hands etc.
It can be difficult to separate the advocacy skills required in prosecuting and defending criminal cases, as there are many rules of law and advocacy which apply to all. The following advocacy rules may apply to other cases and have been adapted to cover the particular aspects of prosecuting and defending domestic abuse and rape cases.
Mastering the brief
As Abraham Lincoln stated when he was successful in the almanac trial, “If I had eight hours to chop down a tree I'd spend six hours sharpening my axe.”(5)
An indictment may have a single charge with one complainer, which on one view is easier to prosecute or defend, or may involve multiple complainers where the Crown is relying on the Moorov doctrine (1930 JC 568). The recent full bench decision MR v HM Advocate  HCJAC 8 has extended the doctrine further. The appellant had been convicted inter alia of an indecent assault on his daughter and the rape of a niece. The court reaffirmed that it was looking for “the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel… such as demonstrate that the individual incidents are component parts of one course of criminal conduct persisted in by the accused” (para 20), and emphasised that there is no rule of law to the effect that the lesser offence cannot corroborate the greater in the application of the doctrine of mutual corroboration.
As the burden of proof is always on the Crown, the first part of preparation is identifying the issues in the libel, and the second, reviewing the witness statements to check whether they speak to the whole of the libel or parts thereof. The statements must be cross referenced with the libel and the medical/forensic reports. A complainer may say that the accused compressed her neck, but the libel may state that he compressed her neck until she lost consciousness and to the “danger of her life”. This could make a significant difference in sentence if the accused is convicted. Preparing the examination or cross examination of witnesses is imperative. The defence advocate should ensure that every discrepancy between the libel and statement is marked, and in particular the parts disputed by the accused.
Each question should cover one fact. Questions covering multiple facts may lead to confusion and the impact of the offence may be lost on the fact finder. A dialogue should be encouraged. Police officers usually refer to their statements and are likely to have refreshed their memory shortly before giving evidence. They can be “wooden” in their evidence, e.g. “I egressed the motor vehicle and I noticed two males 50 yards to my left.” Civilian witnesses may not have not refreshed their memories, and it is useful for prosecuting advocates to encourage them to tell the court a story, but civilian witnesses need to be controlled or they may go “off piste”, leading to the indictment being deserted. Witnesses are always asked their personal details, and the next few questions may concern when they met the accused, how long they were in a relationship with them, what they did earlier before the alleged offence occurred etc. This will if nothing else help to put the complainer at ease and comfortable before the “nasty” stuff.
Examination in chief can be restricted. No leading questions are allowed, and a witness may need to be kept within the scope of the libel. Advocacy theory demands questions such as who, what, why, when, where as appropriate, but theory may not be suitable. Witnesses should be asked to describe how they felt, but only if relevant, as some judges will criticise this. Complainers should be encouraged to tell the court what happened in their own words and should not be interrupted; if clarification is required, for example in relation to an injury, it can be done at the end.
In domestic abuse and rape cases, if a complainer refuses to give evidence against the accused, or refuses point blank to speak up in court even after her statement is put to her, there is little a prosecutor can do. It is very unusual in Scotland for the complainer to be charged with perverting the course of justice after the conclusion of the case. It has occurred in England, where a complainer was sentenced to eight months for recanting her statement about being raped by her husband: R v A  EWCA Crim 434. This would not happen now, given the new CPS guidelines.(6)
Cross examination is the key defence art. Closed questions should be used to control witnesses. The purpose of cross examination is to attempt to establish why the defence position should be accepted, or more likely, why the Crown cannot meet the required proof of the two essential facts. The defence may wish to clarify the sequence of events, or that a particular incident did not occur. Using as few words as possible is preferred. If a witness is to be discredited, this should be kept short. A rule of thumb, “Never ask a question to which you do not already know the answer, unless it doesn’t matter what the answer is”, is trite. Asking one question too far of a witness may bring out other evidence or detail which should not be before the court. Another way of considering this tricky issue is not to think in terms of the trite question but to ask yourself, “Do I really need to know the answer to this?”
In domestic cases the defence should be seen to be sympathetic and reasonable whilst still putting their client's position to the court fairly. “When dealing with people, remember you are not dealing with a creature of logic, but creatures of emotion.”(7) A defence of self-defence may be lodged to a charge of assault, or there may be a defence of consensual sexual intercourse in a rape. The defence has to cross examine on those specific allegations, as a failure to do so may lead to criticism from the judge in his charge to the jury, or worse, an Anderson appeal (Anderson v HM Advocate 1996 SCCR 131).
In domestic cases where there has, by definition, been a relationship between the complainer and the accused, there may be a history of prior domestic abuse or sexual violence. The prosecutor is likely to encourage the complainer to start from the beginning, especially if the relationship started off well and became turbulent due to the accused's drinking or the like. According to an article by Professor Steven Lubet of the Northwestern University School of Law, instead of counselling witnesses to give short and unrevealing answers, you should “showcase your witnesses to show the strength of your case”.(8)
The defence advocate should be as familiar with forensic medicine and peer reviewed studies as the expert witness. Do not be shy of consulting with the Crown experts, where appropriate, and especially in a complex case, to drill down into what their position is to ensure you really understand it before you go near the court. The medical report may confirm an injury to the complainer, but in the example of compressing the complainer’s neck there may be no injury to the neck area, which would be a matter raised in cross by the defence. Or if a complainer indicates that she was raped repeatedly and extreme force was used, the medical report may confirm that there was no physical injury sustained by her although the presence of semen indicates sexual intercourse. This of course may support the accused's position of consent.
Child witnesses may give evidence using screens, a support person or CCTV. If child witnesses are giving evidence against their father or a family member, they may not wish to face them, hence the use of 1995 Act, s 271 notices. An accused may have attended an identification parade, thereby allowing evidence of identification to be agreed.
Prior inconsistent statements
This is a tactic the Crown or defence can use to discredit a witness. The use of such statements is not uncommon, whether in a lower level domestic case, a historical abuse or a rape case. Witnesses may have given more than one statement to the police, and these statements may be extremely lengthy and include detailed information about the offence. If a witness is unable to recollect what they said to police officers, the statement can be put if four elements are satisfied (A v HM Advocate  HCJAC 29). It is not unusual for witnesses in such cases to miss crucial parts of the incident when giving their evidence. They may not spontaneously give oral evidence in response to the advocate about everything that is contained in their statement. If a witness misses a crucial aspect of their evidence, such as “he kicked me repeatedly on the head”, their statement may be put to them under s 263(4) of the 1995 Act. It is essential that the statement is set up properly (McTaggart v HM Advocate 1934 JC 33; Leverage v HM Advocate, 2009 SCCR 371).
The judge should be addressed before a statement is put to a witness. The lines can thereafter become somewhat blurred, and what was a plan to discredit the witness becomes a plan of having the witness agree that she was right on the previous occasion.
This aspect may be problematic for a defence advocate. If a prior statement has to be put for the purpose of impeaching testimony, ensure that the value of the passage put to the complainer is not outweighed by the balance of the statement. For example, if they put the statement to the witness in cross examination in order to bring out that the witness did not in fact tell police officers something crucial, because it is not in their statement, this may cause the witness to recollect and blurt out other evidence which was not said in examination in chief. This is a judgment call and depends on the experience of the advocate. If a statement is to be put to a witness, they should be “locked” in a position which is inconsistent with the apparent truth or otherwise of the relevant passage. There is no point at all in giving the witness notice as to where you are going and allowing them to explain their way out of a possible contradiction. If this procedure is not done correctly, the impact on a jury will be lost.
If the defence intends to put a prior inconsistent statement to a witness, they may wish to assist the witness if they are having difficulty finding the specific line. Telling the complainer that it is page 12, the second paragraph and four lines down may assist. Complainers are in the spotlight and if they are still having problems finding it, the defence advocate may ask to approach the witness and show the witness where it is in the document. When the line is found the defence should read the line. An example of a question: “In evidence you said you were struck with a knife. In the statement you said it was a belt. Which is the lie?” The witness has to accept one or the other. This is a critical feature of cross examination which can be used by the defence to devastating effect. If the witness reads the line but misses a word or needs glasses, the impact is lessened. Witnesses should be asked for an explanation as to why they did or said something. There is nothing better than a witness not being able to explain the unexplainable.
Re-examination can be either effective, or used gratuitously and ineffectually by the prosecutor. It should be brief, or not done at all. Any discrepancies made out by the defence may be highlighted and weaken the complainer’s evidence. Discrepancy is always the province of a speech, rather than re-examination. The only time a prosecutor may wish to re-examine in detail is if new evidence has been disclosed during the cross examination by the defence, and requires to be reconciled.
Domestic abuse and rape cases can be a minefield. One wrong question can be fatal. The advocacy required in such cases is a steep learning curve. Experience is vital, and that would explain why Crown Office now has a specialist sexual offences unit and why perhaps only certain advocates defend such cases.
Sukhwinder Gill is a former procurator fiscal who is now a solicitor advocate and principal of S Gill & Co Ltd, Newton Mearns
(1) Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (The Federation Press), 227.
(4) Walby, S & Allen, J, Domestic Violence, sexual assault and stalking: Findings from British Crime Survey, Home Office research Study 276 (2004), Home Office: London.
(7) Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (The Federation Press).
(8) "Rethinking Deposition Defense: The Case for Strategic Disclosure", 26 American Journal of Trial Advocacy 13