Victim Blaming in Rape Trials: What Burnham’s Warning Exposes About the Courtroom

Victim blaming in rape trials is back in the national debate. The prime minister, Andy Burnham, said complainants in rape cases must not feel they are the ones on trial. He was responding to a senior police officer who said comments made during the trial of Russell Brand came close to “victim blaming”. This analysis does not judge the case, which must be decided by the court. It examines the structural problem the exchange exposes: how a legitimate defence can shade into a process that deters the people the system depends on.

Mr Brand denies the charges against him, and the presumption of innocence applies to him throughout. The police chief’s remark and the prime minister’s reply concern something broader than one defendant. They concern how complainants are treated.

What Was Said, and What Is Not Established

Only a few facts are public from the report. A police chief criticised comments made in court as close to victim blaming. The prime minister then said victims should not feel on trial. Beyond that, readers should be wary of confident claims. The exact remarks, who made them, and whether they were proper cross-examination or went beyond it are matters for the trial judge, and possibly for later review.

The distinction matters. “Close to” victim blaming is a qualified judgment, not a finding of misconduct. A politician’s general statement of principle is also not a verdict on how a particular barrister behaved. Commentary on a live case is further constrained by the law of contempt of court and the principle of sub judice. That helps explain why Burnham framed his comment as a general principle.

Why Victim Blaming in Rape Trials Persists

The adversarial structure

England and Wales use an adversarial system. The prosecution must prove guilt, and the defence is entitled to test that case. In many rape trials the central issue is consent, and the main evidence is the complainant’s account. Credibility therefore becomes the battleground, and cross-examination is the tool for testing it.

This is the uncomfortable core of the problem. The same questions can be a legitimate challenge to reliability or an implied suggestion that the complainant brought the offence on themselves. From the witness box the two can feel identical. A fair system cannot remove the first without damaging the right to a fair trial, but it can and should police the second.

Rape myths and juror psychology

Researchers use the term rape myth for stereotyped beliefs about how a “real” victim behaves: that she would resist, report at once, or show particular emotions. Questions that echo those beliefs can work on jurors even when they are never stated as arguments. Questioning about clothing, alcohol, delay in reporting or later contact with the accused can carry that implication.

Some of that material can be relevant. Delay or later contact may need explanation. The analytical test is whether a question addresses a disputed fact or invites a moral judgment about the complainant’s conduct. Judges and counsel have to keep that distinction in view throughout.

The Legal Guardrails and Their Limits

The law already restricts some lines of questioning. Section 41 of the Youth Justice and Criminal Evidence Act 1999 limits questions about a complainant’s sexual history without the court’s permission, in the tradition of what are commonly called rape shield laws. The definition of the offence sits in the Sexual Offences Act 2003, which makes consent and the defendant’s reasonable belief in consent the key issues.

These protections have real gaps:

• They are narrow. They cover sexual history, not tone, framing or insinuation about behaviour before or after an incident.
• They depend on judicial intervention. Judges control questioning in the Crown Court, but they are cautious about interrupting defence counsel for fear of creating grounds for appeal.
• They are applied unevenly. Practice varies by judge, barrister and court.

This is a critical weakness. A system that relies on case-by-case discretion will produce inconsistent experiences. A complainant cannot know in advance which kind of courtroom she will face.

Why Rape Victims Feel “On Trial”

The phrase is not rhetorical excess. For many complainants the experience combines several pressures: months or years of waiting, disclosure of personal records, detailed questioning in public view, and a defence that by design contests their account. The Crown Prosecution Service and successive governments have acknowledged that many complainants withdraw from rape cases before trial. Official analyses of rape handling in England and Wales have repeatedly found that delay, intrusive evidence requests and fear of how they will be treated are among the factors. I will not quote specific rates here, since they change between reporting periods and readers should check current CPS and Ministry of Justice figures.

The consequence is a feedback loop. If complainants expect hostile questioning, fewer will report or continue. If fewer cases reach court, the cases that do are not representative, and the public learns about the process mostly through its most contested examples. High-profile trials amplify this effect, because they shape the expectations of people considering whether to come forward.

The Counterargument the Critic Must Take Seriously

Reform advocates sometimes underplay the other side. A defendant facing a rape charge faces severe penalties and lasting stigma, and wrongful conviction is a grave injustice. Defence counsel have a professional duty to test the evidence robustly, including by putting inconsistencies to a witness. Banning whole categories of question risks undermining that duty and could produce unsafe convictions that are later overturned.

The strongest position is therefore not to treat complainant protection and defendant rights as opposites. The aim is precision: allow every question that goes to a genuine issue, and exclude questions whose only function is to invite prejudice. Critics who argue for the first without the second, or the reverse, are offering only half of a workable standard.

What Practical Reform Looks Like

Within existing law, several measures can reduce the sense of being on trial without compromising fairness:

1. Ground rules hearings. Early judicial directions on the scope and tone of questioning, set before the witness gives evidence.
2. Pre-recorded evidence. Recording cross-examination in advance reduces delay and exposure, and the arrangement is already used in some courts under special measures.
3. Active judicial management. Clear, routine intervention when a question relies on a stereotype rather than a disputed fact.
4. Juror directions. Plain-language guidance that there is no single “correct” response to sexual assault.
5. Transparent monitoring. Regular data on complainant withdrawal and on reasons given, so that reforms can be assessed.

The Victims and Prisoners Act 2024 sits within this broader policy effort to strengthen victims’ rights. Whether its provisions change what happens inside the courtroom is a question for implementation data, not for ministerial statements.

The Political Dimension

A prime minister commenting on the treatment of complainants is making a political signal as well as stating a principle. The signal is useful if it commits ministers to measurable change. It is hollow if it ends with the news cycle. Operational responsibility sits with police leaders through bodies such as the National Police Chiefs’ Council, with prosecutors, and above all with the judiciary, whose independence limits what government can direct. Politicians can set expectations and fund support services, but they cannot instruct a judge how to run a trial.

There is also a risk of confusion. Public criticism of conduct in an ongoing trial can be read as pressure on the court. A police chief’s intervention is therefore itself a delicate act, and its value depends on being framed as concern about process rather than as a view on the outcome.

Frequently Asked Questions

What does victim blaming mean in a rape trial?

It means questioning or argument that implies the complainant’s behaviour, such as drinking, clothing or delay in reporting, made the offence their responsibility, rather than testing a disputed fact such as consent.

Why do rape victims feel like they are on trial?

Because the case often turns on the credibility of the complainant’s account, cross-examination focuses on that account, and the process can be long and intrusive. The defendant’s right to challenge the evidence is legitimate, which is why the line between testing and blaming matters.

Can a defence barrister ask about a complainant’s past?

Not freely. Section 41 of the Youth Justice and Criminal Evidence Act 1999 restricts questions about sexual history unless a judge gives permission, though protections for other lines of questioning rely more on judicial discretion.

Does this affect the Russell Brand trial outcome?

This article cannot say. Mr Brand denies the charges, the presumption of innocence applies, and the verdict will rest on the evidence heard in court.

The Question This Case Leaves Open

The most important insight is that this dispute is not mainly about one trial or one remark. It is about whether a courtroom designed for contested evidence can be made predictable enough that complainants know what to expect. At present, the quality of a complainant’s experience depends heavily on individual judges and barristers, and that variability is itself a deterrent.

Watch three things next. First, whether the judiciary or the regulators of the legal profession respond with clearer guidance on questioning, rather than leaving the matter to rhetoric. Second, whether government publishes data showing complainant withdrawal falling in rape cases, which would be real evidence of change. Third, whether any reforms survive the inevitable challenge from defence advocates who see them as a threat to fair trials.

A reasoned prediction: incremental measures such as ground rules hearings and pre-recorded evidence will expand, because they are low-risk and difficult to oppose. The harder question is whether any reform can change how jurors and the public interpret a complainant’s behaviour. Until that changes, a procedure may be technically fair and still feel like a trial of the victim.