Should judges and lawyers in rape proceedings refer to biologically male defendants as ‘she’?
A recent case has highlighted the continuing practice amongst judges and trial lawyers of referring to transgender males facing or convicted of criminal charges with female identifiers. At least as regards violence against women and girls, including but not limited to rape, this approach is inconsistent with international human rights standards, as well as policies and commitments adopted in the UK to advance them. Defendants’ fair trial rights must be respected. However, as analysed here, human rights law does not appear to permit, much less require, the use of defendants’ preferred pronouns in criminal proceedings concerning violence against women. Judicial guidance across the UK should be amended to reflect this.
Investigating and prosecuting rape: international and regional human rights standards
Rape is recognised by United Nations mechanisms as a grave, systematic and widespread human rights violation, a crime that may amount to torture and gender-based violence against women and girls. Though it is widely prohibited, national laws against rape vary in scope and are implemented in a ‘general context of…discrimination and…violence against women, myths and gender-based stereotyping on rape by the media and the criminal justice system’ (UN Doc. A/HRC/47/26).
Consequently, across the world, ‘rape is frequently not reported. If…reported, it is seldom prosecuted; if prosecuted, the prosecution is rarely pursued in a gender-sensitive manner and often leads to very few convictions, the revictimization of survivors and high attrition rates, resulting in a normalization of rape, a culture of rape or silence on rape, stigmatization of victims and impunity for perpetrators’ (ibid).
Aligning to standards on victims’ rights, states have duties of due diligence to ‘prevent, criminalize and prosecute rape in accordance with international legal standards’. At least since 1999, these have encompassed measures to prevent women’s re-victimization in rape proceedings. States must implement a ‘gender-sensitive, trauma-informed’ and ‘victim-centred approach’ in relation to rape that applies ‘at all stages of the investigation and judicial proceedings’. Survivors must be protected from ‘intimidation, retaliation and secondary victimization’ (UN Doc. A/HRC/47/26/Add.1).
Whereas a victim is someone who suffers ‘harm, including physical, mental, emotional or economic harm’ directly as a result of a criminal offence (Council of Europe Recommendation CM/Rec(2023)2, Appendix), secondary victimisation ‘occurs not as a direct result of the criminal offence but as a result of the response of public or private institutions and other individuals to the victim’ (se also UN Doc. A/HRC/47/26/Add.1).
In Europe, general standards outlining expected treatment for victims of crime are supplemented in relation to violence against women, including but not limited to rape, by the Istanbul Convention. This obliges states to ‘protect the rights and interests of victims…at all stages’. Judges, lawyers and the police, as relevant in each jurisdiction, must ensure not only that rape and other offences of violence against women are prosecuted but also protect complainants against intimidation and prevent secondary victimisation (Istanbul Convention Explanatory Report, Art 15, para. 99, Art 51, para.262, Art 56, para.283).
While defendants’ fair trial rights must always be guaranteed, states must take measures to enable victims ‘to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented and considered’ (Article 51 para. 286). National authorities must ‘limit as far as possible the psychological impact’ of giving evidence on the victim (para.292).
The judiciary, prosecutors and defence counsel, as well as law enforcement agents, must consequently receive appropriate training on the rights of victims of violence against women and how to prevent secondary victimisation (Art 15, paras. 98, 99). Such training ‘should be…reinforced by clear protocols and guidelines...’ whose ‘effectiveness…should be regularly monitored, reviewed and, where necessary, improved.’
Investigating and prosecuting rape: does the UK meet its duties?
In the UK, the investigation and prosecution of rape, in particular, does not yet fulfil these international commitments and requirements. As the Equality and Human Rights Commission stated in a 2024 submission to the Council of Europe,
‘Unacceptably low rates of charges, prosecutions, and convictions, particularly in relation to adult rape offences, have been the subject of considerable discussion…in recent years. Although the estimated prevalence of rape offences has stayed the same, there has been a concerning decrease in charges, prosecutions, and convictions. Between 2015/16 and 2020/21 there was a significant decrease in the proportion of rape offences that were charged, according to our analysis of police-recorded crime outcomes data.’
The UK Government’s own 2021 Rape Review concluded, in short, that ‘victims of rape are being failed’.
In Scotland, while sexual crimes are increasing as a proportion of total reported crime (17%), rape has the lowest conviction rate of any crime. In 2020-21, 2,176 rapes and attempted rapes were reported to police, of which 152 (7%) resulted in prosecutions and 78 (3.6%) in convictions. These figures stand against a background of reluctance to report sexual crime, with over a fifth of reports of rape in Scotland made to police, for instance, made after a year or more following their occurrence.
Rape proceedings are experienced negatively by victims-survivors
Needless to say, such shortcomings have multiple and complex causes. The impacts of rape proceedings on complainants are significant amongst them.
Almost two-thirds (61%) of adult rape victims in England and Wales withdraw at the investigation stage, according to UK government data. Three-quarters of respondents to a government-sponsored survey of 1,968 survivors of rape and sexual assault in 2023 said their mental health had worsened as a direct result of what the police did, or failed to do, in their case. A 2021 report by the Criminal Justice Joint Inspectorate into the police and Crown Prosecution Service’s response to rape highlighted a lack of collaboration and poor communication with victims as well as failure ‘to put victims at the heart of building strong cases’.
Such findings are significant because, as highlighted by the UK Home Office 2021 Rape Review,
‘The trauma of the crime and their subsequent experience leads many victims to disengage from the criminal justice process. Without the victim’s engagement, prosecution and conviction is very difficult. But when cases are prosecuted, and victims stay engaged with their case, we see results: in 2019-20, 27% of rape defendants pled guilty, and we had an overall 69% conviction rate.’
Likewise, according to a recent Scottish Parliament report, sexual offences proceedings in Scottish courts are experienced as “extremely distressing and retraumatising” by victim-survivors. Factors cited in this regard include ‘Poor practice, lack of communication, limited explanations and a lack of empathy shown by criminal and civil justice agents’ as well as a lack of ‘challenge to unacceptable behaviour and language by legal representatives within courts’. Victims further complain of ‘being treated as evidence rather than human beings, [and] having their experiences segmented or dismissed by both defence and prosecution lawyers’.
Recent reform initiatives
Disregard and mistreatment of female sexual violence complainants at the level of individual law enforcement agents and owing to institutional practices and cultures have been implicated in recent national sexual violence scandals, from child sex grooming gangs, to the brutal rape and murder of Sarah Everard, the Worboys and Carrick cases, as well as in relation to the provision of support services for survivors of rape and sexual violence.
As regards the investigation and prosecution of rape, specifically, a series of public reviews and inquiries have advanced recommendations to address root causes. In England and Wales, these included the 2021 End-to-End Rape Review Report on Findings and Actions and the Casey Review of the Metropolitan Police in 2023. New operating models for rape investigations and prosecutions have been adopted in consequence.
In Scotland, the Dorrian review considered courts’ handling of sexual offences cases and prompted the Victims, Witnesses, and Justice Reform (Scotland) Bill. Aiming ‘to treat victims and witnesses more compassionately’, to understand the impact of trauma and ‘avoid the risk of re-traumatising’ victims’, its proposals include a statutory right for rape complainers to state-funded representation where sexual history evidence is led; extending special measures for victims to non-evidential hearings; and restrictions on self-representation by the accused, for example. The report also proposes a right of anonymity to ‘protect the dignity’ of sexual offence victims and ‘minimise the re-traumatisation of victims before, during and after the court process.
Such measures were necessary, the report concluded, to give victims ‘confidence…to report such crimes in the first instance’. Police Scotland’s 2023 Violence Against Women and Girls Strategy seeks to ‘build trust and confidence with women and girls’, including via a ‘person-centred approach’ on gender-based violence that refers explicitly to the Istanbul Convention.
Identifying biologically male defendants as female in rape trials: a breach of rape complainants’ human rights?
Such developments seem to indicate an emerging consensus across UK public authorities that favours protecting complainants from re-traumatisation and secondary victimisation during rape investigations and prosecutions, and aligning with the UK’s international human rights duties, as outlined above.
Can these duties be met, or are they breached, however, where biologically male defendants are referred to using female identifiers by judges and counsel in rape and other proceedings concerning violence against women?
Requiring anyone who professes a belief in the reality and immutability of biological sex to communicate in this way would, as compelled speech, breach the rights to freedom of thought and expression, as addressed by the UK Supreme Court in the ‘gay cake’ case and considered by O’Hara, here.
Given the international standards above, requiring a female complainant in rape proceedings to address a biologically male defendant (or accused, in Scotland) in this way likely entails breaches of Articles 3 and 8 ECHR, in addition.
This would also seem to be the case where, although a female rape complainant is permitted herself to desist from referring to such a male defendant as male, judges and counsel are nevertheless permitted or required to address or allude to them as female.
Not least, this is because, in line with its general application of a context-sensitive approach, Strasbourg case law on rape proceedings takes into account the authority and influence of national courts and what is said and done in them not just for individual victims but beyond that, for what they communicate to society at large about the weight attached by the state to laws prohibiting rape and the seriousness of efforts to secure its prosecution.
Where a rape complainant was exposed to secondary trauma during criminal proceedings, for instance, the ECtHR found both Articles 3 and 8 violated because, it found, the national court’s approach had undermined the applicant’s rights as a victim of violence, deprived domestic law of its purpose of effectively punishing and prosecuting sexual offences, raised doubts about the system put in place by the state to meet its international obligations and breached its duty to provide effective legal protection against sexual abuse (EB v Romania application no. 49089/10).
In another case, the court, in finding a violation of Article 8 where national authorities failed to protect a survivor from secondary victimisation in rape proceedings, also highlighted the ‘very important role’ of language used in a national court’s judgment, given its public character, where this ‘conveyed prejudices’ that were likely to undermine ‘effective protection for the rights of victims of gender-based violence, in spite of a satisfactory legislative framework’. Given the crucial role of criminal proceedings and sanctions in the institutional response to gender-based violence and combatting gender inequality, ‘It was…essential that the judicial authorities avoided playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of discouraging victims’ trust in the justice system’ (J.L. v. Italy application no. 5671/16)
Where a national court permitted the use of offensive and humiliating remarks towards a rape complainant during cross-examination that damaged her ‘personal integrity’, the state was also liable under Article 8 (Y. v. Slovenia application no. 41107/10).
In many sexual offence trials, complainants’ credibility is key. Where judges, embodying the coercive authority of the state, and counsel, with one voice identify as female individuals whom, according to victims’ testimony, they experienced – often violently - as male, this is likely to be intimidating, confusing and disorienting, and may undermine their confidence and ability to testify, especially in light of strategies frequently deployed by defence counsel in sexual crime proceedings.
In addition, any interference with rape victims’ Article 8 rights (or for that matter their rights under Articles 9 or 10) resulting from this scenario would appear incapable of justification. Sex-based discrimination is prohibited under Article 14 ECHR, and whether deemed directly or indirectly discriminatory, in the specific legal, policy and broader factual context of criminal proceedings concerning offences of violence against women, little deference could be afforded to state measures responsible for complainants’ secondary victimisation. Regarding Article 3 ECHR, its absolute character entails that treatment of rape victims deemed to reach the necessary threshold of severity could never be justified.
That this threshold would be met may also appear likely, given the character and gravity of impacts on victims of rape and other serious physical or sexual violence against women or girls, and the international norms prohibiting these, as well as those that guarantee female victims’ a right to an effective remedy, in which context ‘just satisfaction’ includes the ‘verification of the facts’ giving rise to a human rights violation and, importantly, the securing for victims of the ‘full and public disclosure of the truth’.
Judicial guidance on the management of rape proceedings (1): England and Wales
The next question arising is whether existing guidance adequately orients courts on how to manage proceedings relating to rape and other violence against women where they involve biologically male defendants who assert transgender identities.
In England and Wales, the 2021 version of the Equal Treatment Bench Book urged judges to ‘respect a person’s gender identity by using appropriate terms of address, names and pronouns’ based on ‘respect for their gender identity, private life and personal dignity.’’ (p. 325). This attracted criticism for failing to recognise the potential implications of its approach for complainants in proceedings relating to violence against women. Cases such as those of Maria MacLachlan, a victim of violence who was harried by a judge and defence counsel for ‘mis-gendering’ the biologically male defendant tried and convicted for her assault in 2018, had by this time already demonstrated the potential consequences of mis-direction in this area.
An interim version published later in 2021 accordingly changed tack, acknowledging ‘the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status’ and that these might ‘clash with the trans person’s right to privacy’. Consequently, it advised a case management process to take into account factors including,
‘…Why the witness is unwilling or unable to give evidence in a way which maintains the trans person’s privacy. For example, a victim of domestic abuse or sexual violence at the hands of a trans person may understandably describe the alleged perpetrator and use pronouns consistent with their gender assigned at birth because that is in accordance with the victim’s experience and perception of the events. Artificial steps such as requiring a victim to modify his/her language to disguise this risks interfering with his/her ability to give evidence of a traumatic event.’
The current, 2024 version, of the Equal Treatment Bench Book goes further. Highlighting that victims ‘should not be required to call an accused ‘she’, particularly if they knew the accused as a male,’ it also concedes there may be situations where judges should not use a defendant/accused’s preferred name or pronouns so as to ensure witnesses give the ‘best evidence’ of traumatic events. A ‘female rape victim may’, after all, ‘find it incomprehensible if the judge and others in court refer to her attacker as “she”.’
Where judges, as in the Secker trial, and counsel, as in others, appear not to have heeded this advice, there may be grounds for victims to challenge this as a breach of their Convention rights under sections 6 and 7 of the Human Rights Act 1998. Besides, given its weak formulation, and non-observance in recent cases, England’s Equal Treatment Bench Book would seem, as regards offences of violence against women, to require further strengthening and clarification.
Judicial guidance on the management of rape proceedings (2): Scotland
These issues are also salient in Scotland. Scotland’s Equal Treatment Bench Book is currently under revision. Similar to its counterpart in England and Wales, this aims to ‘offer assistance and advice to judges who must ensure that all who come before the courts are dealt with in an understanding and sensitive fashion’.
Accordingly, the 2019 version sought to address ‘personal characteristics such as sexual orientation and gender identity’. Its section on Sexual Orientation and Gender Identity, developed with input from Scottish Transgender Alliance, includes guidance relating to gender recognition (8.6). Somewhat misleadingly, given its unqualified formulation, this states that,
Public service providers, including Police Scotland, the Scottish Prison Service…and the Crown Office and Procurator Fiscal Service, treat transgender people in accordance with the gender in which they have started living regardless of whether or not they have received a gender recognition certificate…
It is always best practice to treat transgender people as the gender they identify as unless the law requires otherwise. After gender recognition is obtained, the person must be treated as their newly recognised gender, for all purposes.
Further, and again without qualification, it provides that
‘When courts come into contact with transgender people, the requirements of the law may conflict with the needs and interests of the person involved. Wherever possible, however, a transgender person should be treated, identified and addressed in accordance with their self-identified gender.’
Later,
Transgender people will usually appear in court presenting in accordance with their self-identified gender. In some cases, disclosure of a person’s birth assigned sex may be essential for evidential reasons. In the vast majority of cases, however, such disclosure will not be absolutely necessary, and, in any event, it should be possible to accept the person’s apparent identity for nearly all court purposes.
Further, in a section on ‘Use of Language’, it provides
Use of language is a particularly important issue. No one has the right to use the court as a forum for abuse. As in other areas of potential discrimination, people involved in the legal process should, as far as possible, be protected from offensive or clumsy labels…
As a basic principle, language used to or about LGBT people should reflect how they themselves wish to be addressed or referred to. This applies particularly to the title (e.g. Mr, Ms, etc.) and first and other names of transgender people, as well as the personal pronoun used to refer to them. In the vast majority of circumstances, there will be no need to discuss the transgender status or any former name of a transgender person. The principle of “use preferred language” also applies to the words used to describe someone’s sexual orientation, and their relationships and partners. Obviously, if the case concerns the existence of a prejudiced attitude, it will be necessary to address the terms in which this attitude was expressed. Any use of such language in anything other than this context, by anyone in court, should be restrained.
A section on victims of sexual crime acknowledges that proceedings have potential to be re-traumatising and that they may experience distress during evidence but fails to recognise the specific issues arising where biological males asserting transgender identities are charged with offences of violence against women. According to some UK media reports, such situations occur with frequency.
If judges in some instances have avoided aggravating language, it remains crucial that Scotland’s Equal Treatment Bench Book, in its next iteration, is brought fully into alignment with requirements arising from the ECHR and Istanbul Convention, and makes their practical implications for court proceedings concerning violence against women categorically clear.
In turn, this might help to inform the practice of other criminal justice actors, such as Police Scotland, in the context of its current review of its policies on sex and gender and deficiencies in its approach to recording of sexual offending data. It might also influence how violent and sexual crime against women by males asserting trans identities is reported in the media which, in terms of applicable standards (Art 17(1)) is often problematic.
Conclusion
It is thirty years since the UN’s landmark adoption of standards on violence against women. Since then, relevant law and policy in the UK have in many respects strengthened. But egregious attacks by males on women and girls continue, and the rules intended to address this remain incompletely and imperfectly realised in practice.
In this context, it remains imperative that courts communicate unequivocally when it comes to rape and other offences of violence against women. Without exception, defendants should be afforded a fair trial. This does not entail, however, that courts treat biologically male defendants as female, in particular, where offences of violence against women are in issue. Judicial guidance, north and south of the border, must be urgently amended to reflect this.