Dealing with rape: beyond criminal justice
The past week has seen the repitition of a farmiliar pattern. Once again an unacceptably low rate of rape convictions has been revealed. and once again a ‘national disgrace’ has been declared and action urged. In this particular case a parliamentary question from Lynne Featherstone revealed that just 1 in 16 rapes result in conviction.
Undoubtedly such a statistic reveals a deeply problematic state of affairs. But in what sense, or to what extent, do such low conviction rates represent an indictment of the criminal justice system? The answer of course depends upon what conviction rates we would expect. We certainly have lower conviction rates than most of continental Europe. Yet such comparisons are not straightforward, not least because of different definitions of the crime, and the fact that in the UK far more rapes are reported.
Arguably, low conviction rates for a crime such as rape are something to be expected. Regardless of the prejudice of courts, juries and the police, rape is – by its nature a crime that is extremely difficult to prove. This is because the physical act itself is not evidence of the crime. Rather, the guilt of the accused depends crucially upon what was said - most often in private – prior to the act. In a previous post I deplored attempts to lower the burden of proof. I stand by this. Yet with 5%+ of women being raped in their lifetime, simply dismissing the failure of the criminal justice to deal effectively with this crime as the price of a free society is not enough.
What I would suggest, however, is that we think differently about the perptually low rates of conviction rates. For many, the recent 1 in 16 figure is once again a call to action, a call for more police training and perhaps even stronger legislation. Yet I would argue that after a decade doing just this, recent statistics demonstrate the limits of what can be done by beefing up the criminal justice system. Under Labour we have seen the rape law substantially strenghtened, we have seen special training for prosecutors, specialist police units and more. Rather than telling us that we need more the same, the persistently low conviction rates demonstrate that we need to think far more broadly about how we deal with rape.
I would like to see rapists locked up as next as the man or woman. Yet it is also apparent that the criminal justice system is, necessarily, an extremely blunt tool for dealing with rape. We can push all we want, but unless we are going to go down the ugly and unacceptable of lowering the burden of proof – as advocated by the likes of Germain Greer – low conviction rates may be a fact of life. As such, and unpalatable as it sounds, it may be time for activists to drop their obsession with conviction rates and to turn their attention towards prevention, and to what can be done within civil society. The fact that a third of people believe that a woman is partially responsible for being raped if she is flirtatious illustrates, how much progress might potentially be made through education and social intervention. Current, experimental, localised initiatives which aim, in the words of the home office to ‘Challenge and decrease the culture of tolerance of sexual violence against women’ should be watched just as carefully as the courts by activists, and by people with an interest in the way we deal with rape.
It may be hard to swallow the idea that while crimes like burglary are dealt with by the strong arm of the law, we should rely substantially upon social and civil intervention to deal with the far more heinous crime of rape. Yet this should lead ask to ask what function we expect criminal justice to play. As a means of delivering restitution to victims it is spectacularly unsuccesful, and in my honest opinion, it will continue to be so simply because of the difficulty of securing a conviction. The utility fo criminal justice as a deterrent is limited for the same reason. So perhaps it is time to change the way we think.
Reader Comments
You wonder if people would demand a lower burden of proof if a third of people thought that householders who owned easily-fenced property were in part responsible for burglaries? I think they’d do their nuts in, and try and insulate the justice system from this way of thinking. But then, that’s about property not people.
It’s not the burden of proof that causes the low conviction rate. It’s what the police and courts make of the proof that’s the real problem.
Not necessarily JGW. I would imagine many rape cases look something like this:
There is material evidence that the couple had sex but not that it was non-consensual. The woman says it was non-consensual the man says otherwise. What do you think courts should do with such ‘proof’.
I have heard absolute horror stories from barristers of cases in which it was very clear from the outset that the case would result in an acquittal.
To give you one example: in a recent case, the complainant was very drunk and disappeared up an ally for a pee with the defendant. One of her friends assumed she was getting off with him and sent a text message to that effect. The complainant replied, cheerfully. She put her mobile numbers into his phone. When they emerged, the complainant’s girlfriend confronted her and asked what she had been doing. She was flustered. The girlfriend then asked the complainant if she had been raped. She said that she had not been. Some time later, under interrogation from her girlfriend, she admitted that, yes, she must have been raped.
After something like 9 months in prison, the defendant was acquitted.
Now, should that case have been prosecuted?
Arguably, yes. Although it might just as easily not been pursued. The CPS might have applied a ‘public interest’ rationale to dropping it. The prosecution barrister apparently advised that the case should not proceed, but was ignored. The judge declined to chuck the case at half time. And very wise all of those actors to make the decision they did: because they can only lose by getting the case chucked. It will be ‘their fault’ when the articles in the Guardian and the Times are written, apportioning blame.
So, they leave it to the jury. And the jury is composed of men and women who bring their experience of life to their task.
Some of the cases they decide are clear cut, like the example I gave above. Similarly, there are many cases which end in conviction because the complainant is plausible, the defendant incapable of belief, and the evidence clear.
There are, however, other cases in which a rape may well have taken place, but applying the ‘reasonable doubt’ standard, an acquittal is the proper course. Very many cases involve extremely drunk people, with blurry memories of the events of the evening, and very sure that something extremely unpleasant happened to them. The ordinary jury members will, reasonably often but by no means always, acquit in these cases. They think – both men and women – there but for the grace of God, go I. Because they’ve been drunk and got themselves into a pickle.
So, you’re right. There are certainly things to be done about attitudes towards sex, and consent, and misuse of power. Education solves many problems here.
However, the system as it stands is a mess, and part of the mess has been caused by failed attempts to ameliorate it. We have accepted terrible failures of the criminal justice system, which have produced injustice. In one case – to give a final example – the defendant was prevented from stating that the woman who had alleged rape was a prostitute (rather than simply a ‘woman he had met that evening’), and that the reason for her complaint was that he had declined to pay her and she had made a threat to report him for rape, which she then had carried out. This would have involved the discussion of her past sexual history, and was therefore excluded.
Barristers talk about this sort of stuff all the time. It is their equivalent of builders talking about a wonky wall. That’s not a bad metaphor for our law of rape.
Thanks for the input. The second case you mentioned is particularly shocking. I guess it illustrates how potentially problematic it is for the government to make hard and fast rules as to what evidence might be relevant, given the enormous variety of circumstances that might surround rape cases. Considering the awesome power of the state to deploy force against the individual – given that it monopolises violence and controls 80,000 prison cells – the freedom of somebody accused of a crime to use all reasonable means to demonstrate their innocence seems pretty fundamental.
In my geeky way, I’ve just been looking over regina v a. At the risk of sounding like an insensitive jerk, I guess I don’t believe that the need to ‘the need to protect women from harassment’ in the witness box should be the fundamental priority that some believe it is. At the end of the day, while rape verdicts are not a matter of life and death, they come pretty close. They are potentially life ruining.
We had a good guest post on HP some time ago by a woman barrister who argued that the effect of complainants giving evidence via videolink was to distance them from the jury.
When you have two accounts of an event up against each other, a jury is more likely to emphasise with a complainant when they are giving evidence in person, close to them, looking the jury straight in the eye. That can’t happen via video link. It turns that part of a trial into – in effect – reality tv.
Re rape and how difficult it is to prove in the courtroom where there is no more than one word against another, i would offer the other side. That is in the absence of other evidence it is difficult for the accused to DISprove the allegation, and having experience a false allegation i know this first hand. You are not innocent until proven guilty in the eyes of a jury. It is not down to the CPS to prove your guilt. You have to prove your innocence, which is utterly wrong