Prosecuting sexual assault: 'Raped all over again'

"That is simply not true…"

"You are indulging in the realms of fantasy…"

"Utter fantasy, is it not?"

"This is a lie…"

"What you have told this jury is a complete pack of lies…"

The cross-examination of Frances Andrade, who was in the witness box over indecent assault allegations against her former music teacher, Michael Brewer, makes very uncomfortable reading when you know that a few days after her court appearance she killed herself.

Three days before her death, Andrade texted a friend to say that she felt as if she had been "raped all over again" as Brewer's barrister, Kate Blackwell, attempted to undermine her testimony. Her son, Oliver, told a newspaper how profoundly the cross-examination had affected her. "As soon as she came out of the courtroom, she just burst into tears," he said. "She had tried so hard not to do it in front of the jury. She described it as feeling as if she had been assaulted all over again. All that she could think was that she was being attacked. She found that extremely hard."

Brewer was eventually found guilty of five counts of indecent assault. But during her time in the witness box, Andrade was very clear about the effect that the aggressive tone of questioning would have. "This is why cases don't come forward," she told the QC. "I am not in the realms of fantasy and I really understand why so many cases have not come to court."

The home secretary, Theresa May, acknowledged the point in an interview after Andrade's death, and said the fallout from the case could have a very negative effect. "I fear that others may be put off from coming forward rather than encouraged," she said.

Other rape and sexual assault victims who have tried, with various degrees of success, to take cases to court are familiar with the distressing experience of having their evidence torn apart. Usually when you report a crime, you expect to be believed. Victims of burglary do not have to prove that they have been burgled or to justify their behaviour before the burglary. With rape and sexual assault allegations, victims still find themselves subjected to hostile questioning.

Tina Renton describes giving evidence against her stepfather, whom she accused of raping and assaulting her multiple times during her childhood, as the "most difficult thing I have ever done". She recalls the day in her book You Can't Hide, published earlier this year, which details the childhood abuse and her decision later to train as a lawyer and take her stepfather to court. Part of her case rested on her testimony that she told her mother about the abuse when she was 14, but her mother chose to ignore her. The defence lawyer, Mr Brown, "went straight for the jugular", she writes. "'Can I just make the position clear to you that I do not accept that you ever spoke to your mother about your stepfather sexually abusing you,' he told the court."

Remembering the occasion in her home in Essex, she says she was disturbed by the number of times her stepfather's lawyer said to her, "I put it to you that you are lying."

"It is hard being accused of being a liar," she says. "I would never have put myself through the trauma of a court case if it wasn't true.

"Because of my legal training, I knew that they were going to attack me. It was really tough, but I knew I had to continue to deny that I was lying and to continue being as truthful as I was. They were constantly trying to catch me out. They would go over things, over and over again, trying to trip me up," she says. "The judge was really good. There were a couple of times when I got so upset I couldn't breathe, and the judge called for an adjournment."

The process of telling a crowded court what had happened to her was profoundly upsetting, even without the attempts of the defence barrister to undermine her. "The embarrassment… I had to talk about the most intimate things that I hadn't shared with anyone except a police officer, to relive all those moments I had only been brave enough to tell the police officer and never anyone else. You don't have to bring back the memories – they don't go away – but it is difficult to talk about them because of the shame you feel as a victim."

Renton still has nightmares about her time in the witness box. "During the day I can cope with it. In my sleep… You can't control your subconscious." She dreams of "running and never being able to find anyone able to help you" and of "standing in court, people laughing at you, but you don't know why".

Despite the best efforts of the defence team, the jury believed her. Her stepfather, David Moore, was found guilty of six counts of indecent assault, three counts of committing gross indecency with a child and three counts of rape. In July 2011 he was sentenced to 14 years.

However traumatic her court experience, Renton considers herself very fortunate that the process resulted in a conviction. "I feel for Frances Andrade and her family. I am one of the lucky ones. The system did not fail me; it protected me. My story shouldn't be so unique, but the statistics are awful."

Campaigners often cite an estimate that only about 6% of reported rapes in England and Wales end up with the rapist being convicted of rape. However, this figure is controversial, and seen as unnecessarily discouraging for victims who might be thinking about coming forward. More recent analysis of the figures, based on a more usual definition of conviction rate (the proportion of cases prosecuted in the courts), suggests that 62.5% of rape cases end in a conviction.

Kate Smith (whose real name cannot be revealed for legal reasons) was extremely disturbed by similarities between the way Andrade was treated and her own experience, when she pressed charges against someone she claimed had abused her dozens of times as a child.

The defendant was found not guilty, so it is difficult to publish many details of Smith's allegations, but she, too, says she was repeatedly told in court that she was not telling the truth. Even if there had been a guilty verdict, she says, she would still have found the cross-examination humiliating and needlessly gruelling.

"I suggest that this is a lie, that you made this up," she was told time and again. She was so angry that she wrote to May, calling on her to review the way that women who report rape and sexual assault are treated, "to ensure that the victims are not subjected to this tirade of abuse throughout the trials.

"My case was a devastating blow to my self-esteem," she told the home secretary. "It compounded my guilt and shame. Without the support of my fantastic partner, friends… I, too, could have been another Frances Andrade, taking my own life. It broke me. Victims should not be broken in order to get a conviction or even a not guilty verdict… You leave a piece of you behind in the courtroom." Smith has not yet had a reply from May. "I wanted to say that [Andrade's case] was not a one-off. I experienced being called a liar many times."

Part of the problem was that the abuse had begun when she was very young, and since two decades had passed, she was unable to remember a number of dates and details.

"They said that I lied about the dates, but there were things I just didn't remember. I felt it was a very discrediting process from the start."

She felt she was being asked the wrong questions and, when she tried to stop to explain things better, she was told she couldn't deviate from the question. "I was told to try to be composed, try not to get angry… It is difficult, because you come across as very hard. You are trying to contain yourself, talking about some of the worst times of your life. It is hard not to come across as being really hard-faced, because keeping yourself together in court is really difficult. I didn't know if I was going to be sick or faint."

Her diary was read out in court; family photos were handed around. She was upset that pictures were brought out, showing her with the alleged abuser, looking happy. "I am not going to sit there with a sign on my head saying that I was being abused – not when I was 10, 11, 12 or 13." Her family and close friends were also subjected to aggressive questioning. "I don't think they were really prepared for the whole court experience," she says.

She understands that it was the defence's job to subject her evidence to rigorous scrutiny but feels that she – like Andrade – was the victim of unnecessarily harsh questioning. The barrister was "male, arrogant and unpleasant", she says. "It was just another case for him to win.

"They picked apart my evidence: 'I put it to you that this didn't happen, that you are lying,' " she says. "I said to the jury, 'I'm not lying.' It is hard to explain that feeling of helplessness when you have pretty much laid your whole life out before the court, saying exactly what happened, and trusting that people will believe you."

Even though her alleged attacker was found not guilty, Smith does not entirely regret her decision to go to court. "In a way, going to court gave me a voice and gave me control," she says. In the end, however, "The nine years of my life when I was abused were dismissed by the jury."

Smith had the benefit of an independent sexual violence adviser, funded by the Home Office to work with victims of sexual assault, who advised her on the legal process. But, like Andrade, she was told not to seek counselling until after the trial. In her letter to May, she says she felt that the criminal justice system seemed to be "heavily weighted in favour of the defence throughout the whole of the court and trial procedure".

Sarah Jones (not her real name) was never exposed to cross-examination in court because the case was dropped before it went to trial, but she experienced very uncomfortable questioning by police officers as she attempted to have her rapist prosecuted.

She was raped in her own flat by someone she knew a little. She had brought a group of friends and acquaintances back home after a party. She was drunk and had taken drugs, and thinks she fell asleep or passed out. When she woke up, she discovered she was being raped.

Initially, she wasn't sure whether the attack would be classified as rape. "It wasn't rape according to what we are brought up to understand as rape – it wasn't rape by a stranger, in a dark alleyway. I wasn't thinking straight," she says. It was only when she went to the pharmacist and explained what had happened that she was advised to call the police.

Later that day she did so, uncertain about whether she should press charges. "I knew rape convictions are incredibly low. I was really sure I wasn't going to do anything about it, because I thought it wouldn't be possible to prove it. I had a lot of self-doubt. I had been taking drugs and I had been drinking. The police were pretty good about it," she says. From the beginning they reassured her that a prosecution was possible, and the attacker was arrested.

Meanwhile, a friend explained that she had made everyone leave the flat when she realised Jones had passed out. The rapist somehow managed to return. "He must have hidden," Jones says. "Those were the actions of a predatory rapist; it wasn't consensual. When it became clear that it was so calculated, I felt I had a duty to carry it through."

A complication emerged as police began to investigate. One of the other people at the party told police they had seen Jones kissing someone else that night. She was too drunk to remember, and so did not include it in her account. But as a result the police decided that she was withholding information and launched a second, very detailed, videoed interview.

"The first interview was very difficult, not because I wasn't believed, but because of the detail you have to give. It is not enough to say, 'I woke up and he was having sex with me.' You have to describe exactly what you can see, feel and hear in anatomical detail – a level of detail that is very upsetting. The second interview was really, really hard. It was gruelling."

After eight months the case was dropped and Jones was told she was an unreliable witness. "It felt as if they were just looking for an excuse to shut it down," she says. "That's not what our justice system is supposed to do. I have no doubt that I would have been able to convince a jury."

Jones thinks she should have had a lawyer to help her through the process. "The defendant gets a lawyer. The victim is kept in the dark and not given any advice," she says. She was hugely distressed by being described as an unreliable witness. "I went into hospital for two months after they told me; I had a breakdown."

Most upsetting was the feeling of not being believed, and the suggestion that she made up the accusation – an idea she finds hard to understand. "The numbers of false rape accusations are so negligible. It makes me so angry."

There is such a broad recognition that Britain has a problem with prosecuting sexual assault that there are some positive developments under way, coming from both the government and the legal profession. Figures published by the Ministry of Justice earlier this year revealed that only an estimated 15% of female victims of rape and sexual assault in England and Wales report the crime to the police. Many of the rest say they choose not to because they find the prospect "embarrassing", the incident was "too trivial or not worth reporting", or because they "didn't think the police could do much to help".

The dismay triggered by the Jimmy Savile scandal, however, has made people reconsider their attitudes towards victims, and Kate Smith wonders whether, if her trial had been held now, there might have been more sympathy from the jury. Earlier this year, the director of public prosecutions, Keir Starmer, apologised to Savile's victims and promised that this would be a "watershed moment". More recently he announced that a "misplaced belief" that false accusations of rape are commonplace may be undermining police efforts to investigate such crimes. He said that police should not adopt an "overcautious" approach because of the "understandable" concern that some allegations are false.

After the Andrade case, Theresa May said it was necessary to see if the system could be improved to ensure "victims feel they will be believed when they come forward". The Ministry of Justice is now overhauling its Victims' Code to offer greater support to those who report crime. The proposals are currently out for consultation, with a final version due in June or July.

Victims' minister Helen Grant said, "I want more victims of rape and sexual assault to come forward and get the help they need to recover from these sickening crimes. Too often they tell us they feel they are treated as an afterthought or that the 'system' made their already horrific experience worse.

"We have strengthened the Victims' Code so victims can, for the first time, know what to expect and hold the criminal justice system to account. Victims of sexual abuse will now know what specialist help should be offered, such as pre-trial therapy and extra support in court – and, if the system fails them, who to demand help from."

Frances Andrade's husband, Levine Andrade, said in an interview after her death that he hoped an improvement in the law could be her legacy. "I hope they can change the law," he said. "Fran felt as if she was on trial. She kept saying, 'I can see why nobody comes forward. I can see how people crack under the pressure.'"