What is ‘legal advocacy’ for victims of rape and sexual offences?

Legal advocacy is when victims of rape and sexual offences are given free access to a lawyer who can advise and represent them at important points in the criminal justice process. Legal advocacy can take different forms and there are lots of examples around the world, which you can read more about here.

Legal advocacy is different to ‘non-legal advocacy’, which is offered by specialist support organisations E.g. Rape Crisis. Non-legal advocacy involves a much wider range of activities and is less tied to the criminal justice system, E.g. it can include practical information and emotional support. Specialist non-legal advocacy is very important, but has limits when it comes to the criminal justice system because only qualified lawyers can give legal advice.

In England and Wales, victims of rape and sexual offences don’t currently have clear access to free and independent legal advocacy.

Why are we talking about ‘legal advocacy’ for victims of rape and sexual offences?

The need for legal advocacy is outlined in the WHY WE NEED CHANGE section.

Legal advocacy is currently very limited in the UK:

  • In Scotland, some victims of rape may be able to apply for legal aid to pay for a lawyer to advise and represent them when they are being asked for certain private evidence.
  • In England and Wales, charities like Centre for Women’s Justice can sometimes provide free legal advice and support for victims who want to seek a judicial review about the way their case was dealt with.
  • In Northern Ireland, there is currently no option for legal advocacy. However, a pilot scheme is planned for April 2021 that will give rape victims the ability to get free legal advice in certain circumstances, as well as having a lawyer who can represent victims’ wishes to the police and other criminal justice agencies.

In contrast, many other countries offer victims of rape and sexual offences free and independent legal advocacy. The benefits are clear and we’ve outlined them below.

A legal advocacy scheme was recently piloted in North East England, which you can read more about here. An evaluation of this scheme formed the basis of this campaign. You can read more about exactly what we’re campaigning for here.

Many victims wrongly assume that the prosecution lawyer is ‘their’ lawyer

The benefits of legal advocacy for victims of rape and sexual offences

Legal advocacy helps protect complainants’ (the term used to describe people who report to the police) human rights E.g. their right to privacy, by checking that police investigations only gather personal information that is fair, relevant, and proportionate. What counts as fair, relevant and proportionate will depend on each individual case, so it is helpful to have a lawyer who can explain complex legal rules and talk to the complainant about their choices.

A complainant’s lawyer can also help to challenge any requests that are unlawful because they are irrelevant or disproportionate. Our research shows legal advocacy for victims of rape and sexual offences made investigations more relevant and efficient (because police officers were not wading through as much irrelevant material). This was achieved without any lowering of the accused’s right to a fair trial. Research from other countries with a similar legal system to England and Wales (that is, an adversarial system) shows that legal advocacy helps foster more respectful treatment of complainants in the criminal justice process. It also helps complainants to feel more confident giving evidence and improves their satisfaction with the criminal justice system.

You can hear more about legal advocacy for rape and sexual offence victims, including the benefits and why it’s needed, on this video seminar from the VAWG Research Network

Legal advocacy for victims of rape and sexual offences around the world

Some helpful definitions:
An adversarial justice system is typically characterised by two opposing ‘sides’ (i.e. the prosecution and defence) presenting their case to the court (i.e. a judge or jury). However, no two justice systems are exactly alike.
Despite how some lawyers talk about different systems, it isn’t really possible to neatly distinguish between the adversarial approach and an inquisitorial justice system, which is typically characterised by more court involvement in the investigation stages.
Sometimes we refer to ‘quasi-adversarial’ systems, which are systems that are often traditionally thought of as inquisitorial but that consider themselves to take an adversarial approach in serious crimes like rape.
We also sometimes refer to ‘hybrid’ systems, which are newer systems that take influence from both adversarial and inquisitorial approaches.

Legal advocacy in adversarial, quasi-adversarial and some hybrid justice systems broadly fit into three main models:

Rights-based

  • Legal advice and representation are offered to protect complainants ’rights, usually on specific issues E.g. when evidence about their sexual history or medical records are being considered.
  • Rights-based approaches can be further broken down into:
    • ‘Limited Rights-Based’ models, where support is restricted to the police investigation and pre-trial case management stage;
    • ‘Comprehensive Rights-based’ models, where legal advocacy covers the whole criminal justice process and the lawyer can have some form of role at trial.
  • The ‘Limited Rights-based’ model is what the countries most similar to England and Wales usually have.

Auxiliary

  • Complainants’ lawyers are entitled to join legal proceedings and play an active role in the prosecution.
  • This usually gives complainants the most rights, compared to other models.

Adhesion

  • Complainants can attach a civil claim (compensation) to the prosecution and can have a role in the process, but only in relation to that civil claim.
  • This is common in inquisitorial systems, but is also found in some systems with adversarial elements. Most adversarial jurisdictions with this type of advocacy combine it with one of the other two models above.

You can read about specific jurisdictions in more detail here.