Valerie Grove interviews a leading lawyer

TWO facts emerged this week from an as-yet-unpublished Home Office report on rape. The first is that more rape cases are being reported, but fewer are taken to court. The second is that the proportion of "date rapes" has risen to 50 per cent. Is there a connection between them? We must hope so. The courtroom is no place for the airing of private sexual grievances between adults when an evening out has ended badly. Date rape cases provide an embarrassing and unedifying spectacle, which usually leaves both victim and defendant more aggrieved than before. We all remember the solicitor Angus Diggle and his green condom after the Highland Ball, and the London University student whose drinking companion fell naked into his bed and later cried rape. Anne Rafferty, QC - slim, brisk and sharp, with bright blue deep-set eyes - has defended and prosecuted many rapists: she takes the barristerial view that advocacy is what matters. And she agrees it is obvious that the two kinds of rape are quite distinct. "On the one hand, you have two people who adjourn after an evening together. She says, 'I said No and he wouldn't stop;' he says, 'Well, if she said No, it's news to me.' That is quite different from the evil creature who lurks in the bushes and at knife-point rapes the 16-year-old on her way from the library. They are poles apart." The stranger rapist who strikes at random, a crime of violent hatred and humiliation, is a threat that, though rare - only one in ten rapes is of this kind - affects the way all women live their lives. But boyfriends and ex-lovers who turn beastly are a more complex matter. The problem is an old one: men and women do not understand each other. Men are from Mars, women from Venus, and all that. Ms Rafferty: "Yes. It's difficult when passions are aroused and the adrenalin's pumping around. He may say, 'She's said No before and then quite enjoyed what has happened.' That is not at all the same crime as the man in the bushes. But it will be sorted out when sentence is passed. No judge would pass anything like the same sentence on a date rape as on an attack by a stranger." Surely Mars-and-Venus misunderstandings over intimate encounters between adults should not be aired in court at all? "I am inclined to agree with you. I am not at all convinced that we have the correct forum for the airing of these complaints. But I have to put my hand up and say I don't know how to change it." She says it was instructive for her to defend the Dean of Lincoln - "who very kindly gave me that Magna Carta up there on the wall". The Very Rev Brandon Jackson was accused in the ecclesiastical courts of what would have been indecent assault in a criminal court. Ms Rafferty cross-examined his accuser and believes that a wise man, listening to both sides, would have concluded that neither was lying: both genuinely gave their version of what had happened. "That interested me from start to finish." Ms Rafferty is 47, only child of a headmistress of a Midlands comprehensive, and a graduate of Sheffield University. She was the first woman chairman of the Criminal Bar Association in 1995, and her husband, Brian Barker, QC, will be chairman over the millennium: "In our family, we operate a ladies-first policy." Rafferty and Barker, QCs, have three teenage daughters. Another daughter, who had Down's syndrome, died at the age of two. "It changes you for all time. And I'm quite sure it is one of the things that informs my attitude to the job. I keep my mouth very firmly closed when people say barristers are hard and have no concept at all of tragedy and grief. Barristers do not inhabit an unreal, other world." In her most recent rape trial, her client was PC John Blott, whom she defended vigorously on 13 charges. He was convicted on three and has begun a ten-year sentence - regarded as a successful outcome by Ms Rafferty, since he could have got life.

How does a woman barrister feel, defending a rapist? Ms Rafferty gives me, at dictation speed, including the commas, an answer about "going into court to do a good, workmanlike job to high standards ... When defending, I am there to secure an acquittal." Even if she knows in her heart that her client is guilty? "I don't ever know. I may have a personal opinion, but I put it to the back of my mind and get on with being a more skilled mouthpiece than the defendant could himself be." But look, I say, woman to woman, if you think that your client probably did do wrong, how can you hope that the poor defenceless victim will see her attacker walk free, as they say? "What I want to do is to help the court, including the jury, to reach what is not my decision. I am as affected as any of your readers by the sight of someone in distress, whether it's a rape victim or a mother who has lost a child in a murder, or an old lady who has been beaten in a burglary. But in court I want a professional result. If you are a patient, you do not want your surgeon sobbing in sympathy with you as he does the operation." This week we also heard that a core of specialist rape prosecutors, to improve conviction rates in brutal cases, will be assembled by the Crown Prosecution Service. The lawyers will meet rape victims to give them a greater understanding of the crime. Ms Rafferty is sceptical about the need for this. "What the rape victim needs is compassion and good manners. I'm not entirely sure you can teach those." But the public perception that rape victims are put through a second ordeal in court is one that will take some dislodging. Ill-judged judicial coments have fuelled sex offenders' insistence that their behaviour was perfectly acceptable: Ray Wyre, who runs the Gracewell Clinic for sex offenders, says these men are invariably in denial. I recall the 1990 date-rape case, in which the two protagonists had been drinking quantities of champagne together all evening. The alleged rapist was acquitted after the judge said, indefensibly, that "women often say No when they mean Yes". "I imagine the judge came bitterly to regret that," says Ms Rafferty. "It would not be said today." The other cliché of rape trials - "You were wearing a leather miniskirt outside the disco" - has also gone entirely. "No judge would survive if he said anything like that now," says Ms Rafferty. "And rightly so." And what about the rapist's right to cross-examine his victim in court? There is a proposal to restrict this right - of which most of us heartily approve. Ms Rafferty says: "I can live with that." I remarked her lack of enthusiasm. "Well, I think if a man wishes to stand up for himself, then prima facie he should be entitled so to do. But when the victim's privacy, both literally and metaphorically, has been invaded, there are grounds for saying the alleged invader should not be the voice doing the questioning. I concede that." Another huge bone of contention is the cross-examination of rape victims about their previous sexual history, but Ms Rafferty has even less enthusiasm for curtailing this. "In law it is perfectly plain. A barrister is not allowed, when defending an alleged rapist, to cross-examine a woman about her previous sexual history without the judge's permission. The judge has to decide that, without that permission, the defendant will not have a fair trial. "So the jury will be sent out and the judge will ask, 'What question do you want to put to this lady? Why do you need to know? Explain precisely why your client can't have a fair trial unless I allow you to ask this.' My experience is that judges are vigilant. I have never seen any defending barrister get away with a casual request to explore the victim's sexual history. "Besides, there has been such a seismic shift in sexual mores: a woman today might tell the assembled court that she had, before the alleged rape, slept with ten men - which is not unusual - whereas the same answer in 1958 would have produced an entirely different reaction. The resentment the victim may feel applies to the inferences drawn from what she says." Ms Rafferty, one of the highest-flying women silks, says she is not going to apply to be the new DPP. "I would hate it. It's not up my street." I murmur that her name has been mentioned. "My name is always mentioned," she rejoins. "If the Queen abdicated tomorrow, someone would say, 'We must have Anne Rafferty.' It makes no impression on me at all."