Innocent 'rapists' and women in the dock

SEXUAL crimes present a special challenge to liberals and libertarians alike. When such cases come to trial it often seems as though it is the 'innocent victim' who is on trial and not the defendant. Tonight Channel 4's Dispatches tells the sad story of the courts' failure to convict serial rapists - some of whom enjoy five or seven acquittals - and exposes the mobility of meaning in that word 'innocence'. It is never neutral.

'We're very hot on miscarriages of justice when innocent men are convicted,' says Professor Sue Lees, a long- time researcher into rape, 'but miscarriage of justice is just as serious when alleged serial rapists are released to rape again.'

The programme tracks the careers of several alleged serial rapists through the eyes of their victims as they share their experiences of the criminal justice system. Their failure to convince the courts is repeated over and over again as women share their stories about the same man.

Always the man is shielded by the hallowed presumption of innocence. There is a severe challenge to civil liberties here. The challengers are the young women who try to tell their stories to the courts only to find that they themselves are the accused.

Is the solution to join those on the right who seek to diminish defendants' rights? Is sex crime a special case? And even if the courts pay less attention to women's sexual histories, is that any guarantee that they will pay more attention to those of men?

David Mark Maloney was accused by six women in different trials before he was convicted. In one case he was accused of buggery and attempted rape. In the fifth case he was alleged to have brutally beaten the woman. Her injuries did not help the victim to prove her case, however. He was finally convicted of indecent assault.

In each case the woman's previous acquaintance with Maloney was used against her. The possibility that rape was Maloney's project - was what he loved doing, was his raison d'etre and what he went on and on doing to women - was never considered by the court. Acquaintanceship was his alibi. The fact that most rapists are known to their victims was never used in court to explain how rapists gain access to women.

Nor was women's experience of the event used to explain it. A sexual act is a sexual act is a sexual act. But the fact of the act is not the evidence. The woman herself is the evidence. Yet her experience was not used to inform the court of the man's intentions.

The police have an obligation to record a case of harassment or assault as racially motivated if that is the interpretation of either the victim or the investigator. In sexual cases, however, there is no similar obligation to record the woman's interpretation. Worse, the courts allow the defence to examine a woman's make-up, clothing, presence in a night-club, her very proximity to the man, as if it were evidence of her culpability.

Dispatches commissioned its own research into the fate of women who struggle to share their stories with the criminal justice system. With the help of Professor Lees, they studied 100 rape cases. Two-thirds were unreported. Three-quarters of the women say they were raped by acquaintances. According to the Home Office, only 14 per cent of rape cases result in a conviction. The figures produced by Dispatches and Professor Lees show a conviction rate of less than 10 per cent.

If we are not to withdraw the civil liberties of men accused of rape - so allowing their behaviour to be subjected to the same scrutiny as that of their accusers - the only alternative is to scrutinise the criminal justice system itself.

The heroines of the programme appear as women standing alone, subject to a kind of solitary confinement in the court. In none of the cases did the judge exercise his discretion to dismiss attempts by the defence to discredit the reputation of the accuser. Nor did the prosecutor appear concerned to protect the reputation of his client.

Despite more than a decade of debate about the courts' complicity in protecting the reputations of men, they still appear to resist enlightenment by the experience of women. The criminal justice system itself appears to have helped to create serial rapists, confirming their contempt for women and their confidence that 'No' means 'Yes'. The criminal court emerges as an arena in which women have no advocates.

'Dispatches' can be seen on Channel 4 tonight at 9pm.