Are 75% of rape complainants cross-examined about their sexual history?

There was a striking headline in today’s Times:

Sexual history of rape victims still being put on trial

Many people will not have a Times Subscription, so if they saw the story at all online they would have seen only the headline, a picture of Ched Evans, and the first sentence of the story which asserted:

Victims of alleged rape or sexual assault are questioned about their sexual history at trial in nearly three out of four cases, a survey shows.

Those able to read the full story would have read that:

Only one in four alleged victims did not have to face such examination.”

This assertion was based on a report by an organisation called Limeculture, which describes itself, rather alarmingly, as “the UK’s leading sexual violence training and development organisation.” In fact Limeculture is a commercial organisation which concentrates on

training and developing ‘the specialists’, (such as Crisis Workers, counsellors, Independent Sexual Violence Advisers, Young People’s Advocates, Forensic Practitioners, Police Officers), and those who have a professional role to respond when a man, woman or child has been raped or sexually assaulted.”

I don’t have a great deal of experience of Independent Sexual Violence Advisers, but I have met one or two (who may or may not have been trained by Limeculture) who have come to court to support complainants in sexual or domestic violence cases. For what it is worth, which is not a great deal, they have struck me as being sensible, level-headed and generally helpful in providing emotional support to complainants going through the horribly stressful experience of giving evidence.

I don’t know how many such ISVAs are currently working in the criminal justice system. Limeculture says that it has trained 450, but there may be other trainers, and no doubt not all their “graduates” are in fact working as ISVAs.

The Times story is based on a Limeculture survey. The organisation sent out an online questionnaire to Advisers as part of an investigation into how the provisions relating to cross-examination on sexual history are working in criminal trials.

S.41 of the Youth Justice and Criminal Evidence Act 1999 prevents the defence in a sexual case from cross-examining about the sexual history of a complainant except with leave of the court, which can only be given in certain limited circumstances.

I have written about it before; in my view the section as currently written is quite tight enough, and indeed in certain respects it is too restrictive on the scope of cross-examination. The Secret Barrister has also written a good deal about why the current rules should not be made any tighter.

There are many who disagree, notably Harriet Harman (who has proposed legislation that would completely prohibit cross-examination about sexual history, however relevant it might be), and Vera Baird QC, the Police and Crime Commissioner for Northumbria.

All that is by way of introduction.

The point of this post is not to argue about the merits of the legislation, it is to question whether the Times story, penned as it was by the scrupulous and careful Frances Gibb, is actually borne out by the Limeculture research.

The most striking claim is that “victims of sexual assault are questioned about their sexual history at trial in nearly 3 out of 4 cases.”

The survey is based on 36 responses from ISVAs who have attended, according to the survey, 550 trials over the last 2 years.

Five points immediately stand out:

  1. 36 responses seems a rather small number, and we are not told the total number of ISVAs invited to participate.
  2. The respondents to the survey were “self-selected” (that is, they were the ISVAs who bothered to return the survey). There is always the risk that the people who respond to surveys of this sort are those who feel that there is a problem, whereas those who think that the system is working adequately are perhaps less likely to do so;
  3. It is unclear whether the responses are based on the ISVAs’ contemporaneous records of trials that they attended, or on their memory of what happened in trials over a 2 year period.
  4. The ISVAs were not (it seems) asked to distinguish those cases in which sexual history evidence was elicited by the prosecution from those where it was elicited by the defence. It would not be uncommon (for example), and nor would it require the leave of the court, for the prosecution to elicit the fact that the complainant and defendant in a trial had a previous sexual relationship.
  5. The full set of data on which the Limeculture report is written does not seem to have been made available, or if it has then I have not seen it.

But let’s assume in its favour that the survey is statistically rigorous. Does it actually say, as The Times claims, that “3 out of 4 victims of alleged rape or sexual assault are questioned about their history”?

Here is the table from the Limeculture report on which that assertion is seemingly based:


I’ve read and re-read this table, and I simply cannot understand how it supports the contention that “victims of alleged rape or sexual assault are questioned about their sexual history at trial in nearly 3 out of 4 cases.In fact, it comes closer to saying almost precisely the opposite. Not a single one of the 36 ISVAs who responded said that 75% or more of trials they attended included such questioning. The vast majority (89%) said that they had seen questions about sexual history in less than half of trials, and nearly 70% had seen it in either no trials at all, or in less than a quarter of trials that they had observed.

If the survey suggests anything meaningful at all (which is very doubtful) it is that complainants are unlikely to be questioned about their sexual history.

I appreciate that is all too easy to make mistakes in interpreting statistics. I make no claim to any particular authority as a mathmetician, still less a statistician. Perhaps I have completely misunderstood the statistics myself. If so, I would welcome correction.

 

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

15 thoughts on “Are 75% of rape complainants cross-examined about their sexual history?”

  1. Blimey, Point 5 is a truly appalling example of statistical incompetence.
    It is so bad that it destroys by itself all credibility for the report.
    You should perhaps have made it the central point of your piece, and destroyed it in such detail that no open-minded person of average intelligence could fail to understand.
    The other points, though valid too could have been mentioned less prominently just for the record.

  2. I also had a look at the “research” this morning and blogged about it here (http://defencebrief.blogspot.co.uk/2017/09/sexual-history-of-rape-victims-still.html) – sorry not trying to advertise on your page but just thought it might be helpful if you can easily see my thoughts.

    My assumption on the 75% figure is that Francis has noticed that in 25% of cases there was no questioning on past sexual history and has thus concluded that it did happen in 75% of cases. I place the blame with the study author who have not been clear about any aspect of their research and their data seems to be presented in the most confusing way they could think of.

    1. You are always welcome to comment Nick, & I apologise that in my rush to reply quickly to The Times I missed your blog. I agree with you that the original survey is pretty useless. It’s just a shame that The Times should have taken a bad survey & then compounded it with a dire interpretation.

  3. Before I retired I was a lecturer in research methods in health care which included statistical analysis. This is possibly one of the worst examples I have ever seen which makes much out of almost nothing. The sample is so small that it is impossible to draw any conclusions at all from it and much of the table is meaningless. In fact I struggled to understand it in the first place. The headline figure which can be drawn from it is that 9 (i.e. 25%) out of 36 ISVAs claim they observed NO questioning of sexual history therefore (and this is Limeculture’s conclusion) 27 ISVAs (75%) did so. Why not just say that in the first place? But then, because the sample is so small it has been padded out with meaningless percentages. The smaller a sample the greater the likelihood of error and the more exaggerated percentages become. Self-selection also increases error because only those motivated to respond do so and may skew the results. If we want to play with figures we could look at the number of trials ISVAs are said to have attended and the responses. That, is 36 responses covering 550 trials (I assume) or 6.5% which is hardly worth a glance. Another problem is that we do not know how the question was framed. What, for example, does “1 -24% (less than a quarter) out of 16” mean? Does it mean just under 6 people observed sexual history questioning? Or that just under a quarter of claimants were questioned. If you cannot understand it Matthew then neither can I and I thought I understood statistics enough to teach it to undergraduates. I looked at the report and cannot find the answers in it either and the only conclusion I can come to is that it was produced by somebody who is statistically illiterate. As you have pointed out asking people to base their responses on memory some time after an event is highly unreliable. I thought I understood statistic until I read this.

  4. Yes, this is dreadful abuse of statistics – we really need to address the statistical illiteracy of the general public, most of whom appear to believe that they are more likely to die of x than y, despite all the evidence pointing out that y is a hundred times more deadly than x.

  5. You have made no mistakes in interpreting the statistics. Your paragraph after the table is exactly right, except that the proportion who saw questions about sexual history in no trials or 1-24% of trials is 69%, so I would say “nearly 70%” rather than “nearly 75%”.

    I think there are two possibilities for where the journalist got her mistaken idea from. The first, as Nick Diable wrote, is that she saw “None 25%” in the second row of the table and took that to mean that there was no questioning of this type in 25% of trials, hence there must have been some of it in 75% of trials. But then why did she write “nearly three out of four”, when 75% is exactly three out of four?

    The second possibility is that she saw that all the rows up to “50-74%” have a positive number of responses, somehow inferred that the proportion of trials with questioning of this type was something like “up to 74%”, and then expressed that as “nearly three out of four”. It is very confused reasoning, but I think this is probably what happened.

    The words in the first column of the table are wrong. The actual meaning of “less than half” is obviously 0-49% (the difference between 0-49% and 0-50% is not important here). The numbers in the third column add up to 36, the number of respondents, so it is clearly the numbers in the first column that are right and the words that are wrong.

    I don’t think Matthew’s point 5 is very important. The table shows all the data for that question – 36 people answered the survey, and here is a table of their responses. But undoubtedly the Limeculture report is weak and the Times article is garbage.

    1. I think my point 5 is a bit more important than that, largely based on what a chap called Matthew Gullick (@matthrwgullick) pointed out on Twitter. Because we don’t have the raw figures we have no idea whether the (say) 25% of ISVAs who saw no sexual history questions saw 1 trial or 500 trials. And the same for all the other quartiles. Without that information the statistics are all but meaningless.

  6. I am not a statistician, but here is a back of the envelope calculation that I think shows the data is consistent with around 1 in 10 of the trials allowing this questioning: Suppose that the ISVAs each attended around 16 trials and had an equal chance (1 in 10) of seeing questioning at each of them. Then the chance of a single ISVA seeing no trials involving questioning of sexual history would be around (0.9)^16 or about 0.185. So it wouldn’t be surprising for only 18.5% of the ISVAs to report seeing no trials involving this questioning even if only 1/10 trials allowed it. If we assume tha around 9 in a hundred trials allow the questioning we get closer to the 25% recorded.

  7. Slight mathematical correction:

    “The vast majority (79%) said that they had seen questions about sexual history in less than half of trials”

    It’s 89% – the table shows only 11% seeing questions about sexual history in more than half the trials 🙂

  8. There’s a further problem here. The survey doesn’t show how many trials each adviser saw. For all we know, one particularly experienced adviser, who has done hundreds of trials may have rarely seen questioning of previous sexual history (less than 25%), whereas another who had done only three trials may have seen it twice (66% of times). Each of these respondents would have the same weighting. This causes the statistics to be wholly skewed without any possibility of knowing in which way. This also makes headline figure of it being taken from 550 trials meaningless, as we don’t know how many to attribute to each adviser.

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