Heather D. Flowe, PhD
Interviewing rape victims: A new way forward
Updated: Nov 25, 2021
In May, a global committee of experts from different fields of expertise such as interviewing, law enforcement, human rights, psychology or intelligence published the Mendez Principles - Principles on Effective Interviewing for Investigations and Information Gathering.
This new international standard is based on rigorous empirical research that shows torture and other ill-treatment to be ineffective and counterproductive methods of questioning, thus providing a pathway to draw a line under the failings of what went before and focus efforts on evidence-based approaches to questioning of interviewees.
If properly adhered to, it represents a step-change for how we garner the best possible evidence from interviewees. Fundamentally, it posits that cooperative interviewees should not be treated as, or questioned as, hostile.
In the aftermath of high-profile rape cases in the UK, the processes and procedures for rape investigations are again under scrutiny. This field of policing has long been mired in controversy, as victims report experiencing an ‘interrogation’ whereby their testimony is inherently distrusted. They are treated as hostile witnesses. It’s borne of the same ideology of inquiries involving digital communication data that resulted in victims saying there were effectively subjected to a ‘digital strip search’ after haning over their mobile phones for analysis. (Current CPS policy on these matters can be found here.)
With these and other examples of poor interviewing practice in mind, do we need a similar set of standards for interviewing rape victims? What would a version of the Mendez Principles look like if introduced specifically for how we handle the testimony of survivors of sexual violence?
Much of the UK public got its first glimpse inside rape investigations on the opening episode of the 1982 BBC One TV series Police. Viewers saw a live rape investigation, which included a police interview with a complainant. Two officers could be seen shouting and berating a rape complainant in what amounted to a hostile inquisition:
“How many times have you had sex? How many men have you had sex with? Can you count them on the fingers of one hand? (Incredulous tone) You got into the car with them. You made no effort to get away from them...”
There are clips from the show included in this interview with film-maker Roger Graef :
“I've met some that have been raped and they think their life is crumbling around their ankles like a pair of knickers with the elastic gone. Doesn't hold water this, does it? I'm not saying it's not true... I'm saying there's a lot more to this. Unfortunately, we'll never hear the other side... All we've got is your side and you're making a fairy tale out of it.”
This documentary led to a Home Office circular asking that complainants be treated with dignity and respect, and tighter guidelines around ‘no criming’ sexual offense complaints, whereby claims cannot be deemed false unless there is a retraction accompanied by evidence it is false.
Gregory and Lees found the new guidelines had limited impact in their study of case attrition from 1988-1990 in London, with substantial numbers of cases being ‘no-crimed’ owing to insufficient physical and forensic evidence, and police assessments that the complainant is unreliable (e.g., because of alcohol use or mental instability). Further, Home Office statistics indicated that fewer than 10% of recorded offenses at that time resulted in a conviction, which is comparable to today’s figures, variously reported between 1-6%.
So, what about now? Metropolitan Police investigation failures allowed the black cab serial rapist John Worboys and the serial rapist Kirk Reid to commit further attacks on women over a sustained period.
This led to the Report of the Independent Review into the Investigation and Prosecution of Rape in London. It found that the criminal justice practitioners are unduly concerned with the credibility and reliability of the complainant. Any weakness leads to cases automatically being dropped without due consideration of case strengths and evidence. The report also noted that the undue focus on the complainant led to failures to consider the behaviour and previous conduct of the suspect.
Jordan (2009) reviewed research regarding police investigations and prosecutions in the UK, New Zealand, and London, and her results provided little evidence that things have improved far enough.
If things have improved, one might expect to find an increase in rape reporting. There hasn’t been.
Credibility factors such as alcohol or drug use by the complainant, which increase people’s vulnerability to sexual violence, still decrease the odds that the police refer a case for prosecution. The latest figures indicate that the police in England and Wales refer only 25% of reported rapes to the CPS for prosecution.
A survey of prosecutors published in 2009 reported that while 85% would advise a friend or family member to report sexual violence to the police, only 39% said they would recommend seeing the case through the system.
Jurors are still subject to innuendos from the defense about the complainant’s sexual history and credibility, despite rape shield statutes that bar such forms of evidence from the courtroom unless deemed material to the case.
Sadly, we don’t know very much empirically about police interviews in rape because such data are not made available. The research that does exist suggests that police practices, even with vulnerable witnesses, are seriously wanting.
A new direction
So how would a set of principles change this?
Sexual violence victims aren’t suspects but rather fall into the category of cooperative witnesses, albeit ones that are regarded as vulnerable victims, when they report a crime. According to the ABE (Achieving Best Evidence) guidance, sexual violence victims are vulnerable victims, owing to the fact that they often are subject to suffering intimidation by the suspect. Victims are often traumatised and in need of support. The guidance sets out special measures that vulnerable victims are entitled to in order to improve interviews and courtroom testimony.
If we were, from scratch, to design the interview processes that can truly achieve best evidence from victims then they would look very different. Rather than being rooted in evidence-based practice, our current processes are the cumulation of decades of building incrementally upon foundations that have been long since discredited or disproved. That is perhaps not surprising. After all, it is how most justice systems are built, with gradual change to existing precedent regardless of how relevant or fair it is.
It is far from just a UK issue too. There is no country that handles survivor testimony well. It more a case of varying degrees of how badly it is done.
The academic community has an important role in changing this. We have the capacity (and duty) to drive positive change through evidence-based ideas but, too often, we find ourselves wallowing in the past. By constantly revisiting concepts that we know to be ineffective or problematic we mirror the justice system, building upon rotten foundations.
A set of principles would provide renewed focus and act as a call to arms for the investigative interviewing research community, and those we work with. It could be our roadmap for how we can better conduct interview with, and support, survivors.
In my next blog I’ll explore what these prospective principles might include and how they might be realised.