According to the front page of today’s Times
Rape attacks are increasing rapidly in England and Wales, but the number of cases that end in a successful prosecution has fallen to a record low.
According to government figures published yesterday,only one in eighteen rapes reported to police ends with the suspect being punished.
The Times reports that “only 14 per cent of cases reached the trial stage, with the highest proportion of cases dropping out of the criminal justice system at an early stage”. It draws on a Home Office commissioned study by Jo Lovett, an academic at the Child and Woman Abuse Studies Unit of London Metropolitan University, which has found:
“that police and the CPS overestimated the number of false allegations which feed into a “culture of scepticism” about rape complaints. …The study said that there remained a belief among some people working in the criminal justice system that many complaints were false, with victims blamed for risk-taking.”
It is quite possible that the number of rapes taking place has indeed risen.
Another explanation, not inconsistent with the first, is that the criminal justice system is a victim of its own success. The police and the CPS have adopted rigourous and sensitive procedures in sexual offences, including the creation of “Sexual Assault Referral Centres” for the interviewing of complainants in police stations by specially trained, and usually female, officers. As the Times reports, reforms such as these have “succeeded in encouraging more and more women to come forward to report rape but still too many cases never get into court“. Complainants may now be more prepared to define and report as rape incidents which in the past they might have regarded – or feared others would consider – as simply “a nasty experience”. The additional cases being reported, and brought to trial, may not be as strong as those which in less enlightened times made it to court.
Another possibility is mooted by the Times article. According to the author of the Home Office study, a new trend in rape has emerged. It is as follows:
“I think it is a pattern of drinking behaviour where a group go to a bar and offer to buy drinks or get chatting with girls or women and assume that some kind of sexual activity can be taken for granted. Alcohol is the lubricant in the process.”
This is, in fact, not a “new trend” at all. It is the background to almost all sexual assaults. What may have changed is that women are now more prepared to regard drunken sexual assaults as crimes and to report them to the police.
The reason that rape cases may not come to court is not made clear in the article, but the study itself suggests that one third of rape cases do not reach trial because complainants withdrew their complaint. It is notable that the CPS guidance on prosecuting rape makes it clear that even in such circumstances, consideration should be given to continuing with the prosecution.
It is suggested by the Times article that the CPS, applying the “sufficiency of evidence” test in deciding whether a prosecution should be brought, drops cases which really ought to come to trial. The study actually reports that 3% of cases are designated as “false”, while a third are dropped for insufficiency of evidence:
“This group includes cases where: the complainant had learning difficulties, mental health issues or was otherwise unable to give a clear account; DNA testing was not conducted; and an offender was identified but not traced. In a substantial number of cases in this category the decision not to proceed was linked to victim credibility.”
The study gives an example of such a “credibility” issue arising in a case in which the complainant “lied about drug intake and amount of alcohol consumed. Toxicology tests proved she was extremely drunk and high on cannabis“. It is not clear whether the CPS dropped that particular case: but if such a case proceeded to trial, credibility issues would be very likely to result in an acquittal.
Barristers with experience of prosecuting sexual offences tell me that in practice the CPS operate a de facto lower standard when judging the sufficiency of evidence in sexual offences. Cases are sent to trial in factual situations in which – were a sexual element not involved – the case would be dropped. Indeed, the CPS makes a point of not dropping cases where there is a question as to the sufficiency of evidence, prefering to leave it to the judge to drop the case at half time or the jury to acquit.
Juries are composed of ordinary men and women who bring their experiences, and attitudes to life to the case. Prosecuting barristers will tell you that if a case involves, for example, two drunk people going home with each other, juries will not convict unless there is evidence of violence or significant coercion. Male jurors tend to think “that could have been me” while female jurors tend to take the view that the complainant “should have known better”. That is not my attitude: but it isn’t a bad approximation of the attitudes of many members of typical juries.
For this reason, the acquittal rate in rape cases which actually come to trial is relatively high.
Another factor in the relatively high level of acquittals in rape is that, until May, a genuine belief in consent was a defence to a charge of rape. The present position – which is not reflected in the figures – is that the defendant must now show that his belief in consent was reasonable. In deciding whether the belief of the defendant was reasonable, a jury must have regard to all the circumstances, including any steps he has taken to ascertain whether the victim consented. Failure to take such positive steps may – in theory – result in the jury finding that a belief in consent was not reasonable, and a conviction will follow.
However, whatever the law says, juries will not convict if a conviction “doesn’t seem right” to them. We have no statistics for prosecutions brought under the new law, but it is possible that its effect will be that the CPS brings even more cases as a result of the evidential burden being lowered, but juries – putting themselves in the shoes of the defendant or complainant – continue to acquit.
The Child and Woman Abuse Studies Unit, and other similar academic groups which share a common purpose of developing “feminist research methodologies, theory and practice, especially in relation to connections between forms of sexualised violence” have worked hard to network policy and law makers. The researchers are academics who have emerged from the radical gender politics of the 1980s. They were last in the news when Glasgow City Council commissioned a study on lapdancing from them, which reached the revolutionary conclusion that:
“[T]here is evidence that activities within lap dancing clubs are in direct contradiction with equality between men and women, and normalises men’s sexual objectification of women.”
The CWASU is now particularly favoured by the Home Office in policy making. Because of their close relationship with the Home Office, much of their focus has been on reforming the law and prosecutorial practice. Many of those reforms have been important in overhauling the disgraceful way that complainants have historically been treated by the criminal justice system.
The law is, of course, important in defining public attitudes towards particular types of behaviour. However, if juries do not regard certain forms of conduct as “rape”, no amount of legal redefinition, or further change in prosecutorial policy, will change their minds. We may have reached the limits of law.
In addition, reforming the law may result in a higher conviction rate for rape: but not necessarily simply of guilty defendants. Rules of evidence have been in place for a number of years prohibit the cross examination of complainants on their past sexual history with other partners. The purpose is to protect women (and now men) from the unpleasant experience of cross-examination on their sexual history: although their effect is also to prevent the defendant from running their defence. In one case, a defendant whose defence was “consent” was not permitted to cross examine on the undisputed fact that the complainant was a prostitute, and that – according to the defendant – the complaint had followed his refusal to pay her. The jury convicted. It might have acquitted if it had heard the defendant’s full case.
Radical gender politics used not to have such a cosy relationship with legislators. Instead, they favoured grassroots activism, which focussed upon consciousness raising. It might be be time for groups like the CWASU to return to their roots, and to focus on on other, non legal, and potentially more fruitful ways of changing the attitudes of men and women towards rape and sexual violence.
