Has rape become de facto “de-criminalised”, as claimed by a number of women’s rights organisations?
There are around 128,000 victims of rape and attempted rape in England and Wales each year. Last year the police were told of 63,136 allegations of rape, yet only 820 alleged rapists were charged – that is just one in every 77 rape suspects. The prosecution rate is just 1.3 per cent, the conviction rate is even lower and more than 40 per cent of rape cases were closed because complainants did not support further police action. As Dame Vera Baird has said, “if you are raped in Britain today, your chances of seeing justice are slim.”
Why is the state failing to prosecute primarily male violence against women and girls? Why are victims reluctant to report to the police? What needs to be done to fix our broken justice system? In this article, we draw on recent developments to explore many of the key issues regarding prosecutions for rape and similar offences.
The 2021 rape review
In June 2021, the government published its end-to-end rape review into the reasons why the criminal justice system is failing to prosecute rape cases. The report found that reasons for the decline in cases reaching court were “complex and wide-ranging including an increase in personal digital data being requested, delays in investigative processes, strained relationships between different parts of the criminal justice system, a lack of specialist resources and inconsistent support to victims”.
In addition, the report continued, “victims have been treated poorly”. They felt disbelieved, judged and unsupported, and feared giving evidence in court. The report set out an action plan designed to increase the volume of cases, engage victims in every stage of the process, not deprioritise complex cases, increase the number of early guilty pleas, improved timeliness, limit requests for information from victims and so on.
After its publication, Robert Buckland, the former Justice Secretary, profusely apologised for the extremely low rate of convictions for rape cases, saying he “needs to do better” and budget cuts were partly to blame for convictions falling to a record low in recent years.
In the same month as the rape review, the annual total of 61,158 reports of rapes was recorded for the year. This is the highest ever recorded annual figure to date and up 10 per cent from the previous 12-month period. It is unclear where this rise has come from; whether there has been an increase in the number of victims willing to report rape or is there an increase in victims during the Covid-19 pandemic who are now coming forward. Whatever the reason, these new figures highlight that there is a clear failure in the system.
Poor treatment of victims
That victims are being treated poorly is borne out by other evidence. Dame Vera Baird has argued powerfully that sex assault complainants should have a right to a legal aid-funded solicitor able to challenge unreasonable demands by officers wanting to download their entire mobile phone contents and snoop through their emails and internet search history.
Cases also take far too long to complete. The Ministry of Justice recently revealed that for first nine months of 2021, the median time between an offence of rape and the completion of the resulting criminal case was over 1000 days for the first time. Labour has said it would end delays by increasing the number of rape and serious sexual assault offence ‘(RASSO’) units in the Crown Prosecution Service (CPS) and rolling out new Nightingale Courts to guarantee an additional 33,000 sitting days. On the surface, this plan seems like a glimmer of hope for victims. However, a joint inspection report by the police and CPS published in February 2022 shows that there are other deeply rooted and structural barriers to the prosecuting of rape.
The damning report outlined complainants’ experiences of the system:
“In court, brutal cross-examinations were common. Participants’ personalities, sexual preferences, and motivations for reporting the incidents were said to have been interrogated in a derogatory, accusatory, and often discriminatory manner. The Court experience was said to be more traumatic than the rape itself in some cases and led some to wish that they had never reported the incidents”.
It is intolerable and almost unimaginable that our justice system, which is supposed to be protecting victims, is more traumatic than rape. It is therefore understandable why women have reservations about reporting, and why in 2020, 57 per cent of rape victims who reported the incident subsequently withdrew support for their case.
Special measures are not used consistently
Special measures during trials can be used to improve the system for complainants, such as those enabled by sections 28 and 41 of the Youth Justice and Criminal Evidence Act 1999. For example, section 28 allows for special measures by way of pre-recorded cross-examination of the victim, which takes place on a date before the trial and is played to the jury. However, the Joint Inspectorate found that “section 28 isn’t being used or considered consistently by the police or the CPS for vulnerable adults or intimidated victims in the pilot areas”. They also found lack of understanding throughout the police, the CPS and most specialist RASSO investigators.
Furthermore, despite special measures sometimes being in place, an Independent Sexual Violence Advisor explained:
“Victims often finish the court process and are absolutely aghast at how they were treated in court by defence, i.e. cross-examination. I have seen victims ask their officer on their case whether they will get ‘ripped apart’ in court, and often they’re told that the judge will not allow that to happen, when in practice of course we all witness that this frequently IS allowed to happen.”
Ground Rules Hearings are additional hearings that establish how to enable a vulnerable witness to give their best evidence. However, the London’s Victims’ Commissioner Claire Waxman OBE also highlighted in her response to the Victim’s Bill Consultation that “Ground Rules Hearings do not happen in nearly enough eligible cases, and victims have relayed deeply retraumatising experiences on the witness stand… The law should make Ground Rules Hearings mandatory in all rape and sexual offence cases”.
Section 41 places restrictions on questions about a complainant’s past sexual history. The Joint Inspectorate found that 8 of the 54 files they inspected involved a Section 41 application. One vulnerable victim of rape was being supported by an intermediary to give evidence at the trial using a remote link. Due to late disclosure by the police and the CPS, the defence made an application for her to be cross-examined about her sexual history. The victim was told of this application over the video link, while she was waiting to give her evidence. This situation could have been avoided, if the prosecutor and the investigator had dealt with disclosure fully and in a timely way.
Along with many recommendations for change, the inspectorate report proposed specialist rape and sexual offences courts where complainants would benefit from trained and trauma-informed court staff and judicial oversight to guide the trial appropriately. In addition, it would assist with the backlog in cases.
Low trust in the police
When reflecting on the justice system and its failings for female rape complainants it is unavoidable to mention how rape reports are initially dealt with by the police. We have seen in the past year that the police are not dealing adequately with abusers, rapists and misogynists in their own rank.
As a direct result, many women do not trust the police. They are withdrawing their assault and rape reports with some not even reporting in the first place. 2000 allegations of sexual misconduct including rape have been made against serving police officers over the last four years. However, just one third of police officers were sacked in cases where sexual misconduct complaints were upheld.
Other approaches are needed
More legal thinking and creativity needs to be introduced into the court process without compromising the presumption of innocence or the freedom to conduct a defence within permitted parameters.
One idea would be to focus less on the complainants and put the onus on the defendant instead. Last month, the Director of Public Prosecutions, Max Hill published a ‘Rape Strategy Update’ which outlined “an offender-centric approach” where the police and CPS prosecutors place the primary focus on the actions and behaviour of the suspect when conducting rape investigations and prosecuting these cases.
Or to take other examples, perhaps statutory rape should be re-introduced as an alternative or additional charge? Perhaps the concept within civil law of aggravated damages into should be incorporated into criminal law – this would mean that the defence of consent could still be vigorously and fully pursued, but if the defendant is convicted, the sentence is lengthened? A final question: does the present legal direction from the judge to the jury deal adequately with the complexities and nuances of rape and sexual assaults particularly in intimate partnerships where there might have been some form of consensual sexual relationship? We raise these issues because they touch on complex areas that require further discussion and research.
Not only is justice being delayed, it is being denied to the most vulnerable in our society. Choosing between trusting the justice system and the police which is plagued by institutional misogyny and waiting 1,000 days to just get on with life, is resulting in rapists walking free.
Read more about misogyny in the criminal justice system in the Political Quarterly journal.