I want to be clear about something before I start here; it is a public scandal that a mere 5.6% of reported rapes result in a conviction.
What is equally scandalous, however, is this figure appears set to used, yet again, to justify a further assault on the standards of justice in British courts and on the independence of the judiciary.
To begin with, I want to put this figure for convictions of 5.6% into its proper context.
While it is true that only 5.6% of reported rapes (2002 figures) result in a conviction, the actual conviction rate at trial in this year was 48% and, in general, averages somewhere between 50-66% over time. Between half and two-thirds of all rape cases that go before a jury result in a conviction. This is still low by comparison to many other offences, where conviction rates of 80-90% are more the norm but not an entirely unacceptable figure as statistics go. (Of course, any time that a rapist is wrongly acquitted it is unacceptable but as Stalin correctly noted, “one death is tragedy, a million is a statistic� and here I’m looking at the statistics not the personal trauma of rape).
So, if juries convict in around 50% of all cases brought before them then why is the overall conviction rate so low?
Well, quite obviously it’s because the actual number of cases brought to trial is extremely poor – only 12-14% of reported rapes make it to court.
I’ve quoted these figures before, but they’re worth restating.
Of all reported rapes in 2002…
14% led to a court appearance, resulting either in a jury trial or in the assailant being sentenced following a guilty plea.
Around 9% were found (or thought by Police) to be false reports.
These included malicious reports (false accusations usually motivated by a desire for revenge), exculpatory reports (rape used as a cover-up for other behaviour such a extra-marital affairs, avoidance of parental disapproval by teenagers – in one case a young Pakistani woman alleged that she had been raped in an effort to avoid an arranged marriage in Pakistan, another made such an allegation while trying to obtain the ‘morning-after pill’ rather than admit to having had unprotected consensual sex and yet another made such a claim in an effort to regain the sympathy of a parent after having been thrown-out of the parental home where they lived) and reports made in error (either where police are called to a unconscious ‘victim’ where there is physical evidence which suggests a rape may have occurred only for forensic evidence to refute this initial idea or cases where a woman reports that she fears that may have been raped having no memory of the pervious evening due to extreme intoxication).
A further third of all cases failed because of the victim withdrawing their allegation and/or refusing to cooperate with a prosecution.
Again, there are several reasons given for this. How women are treated by the legal system during the process of investigating their complaint can, and does, dissuade many complainants from proceeding with their complaint all the way to trial. Many of those who do withdraw their complaint at an early stage, do so feeling that they will be disbelieved, or because there fearful of the trial process and cross-examination, or simply because the come to believe that there is little or no prospect of justice at the end of it all. There are also reported cases where intimidation and threats of violence by the assailant result in the victim withdrawing their complaint and, as with complaints of domestic violence, there are also a considerable number of case where complaint against a partner or spouse are withdrawn as a result of a reconciliation.
Of the remaining cases, the majority of these were dropped either by the police (by their not bringing charges against the alleged assailant) or by the CPS (before trial) due to evidentiary problems; e.g. lack of physical evidence, lack of corroboration from witnesses, perceived issues with the ‘credibility’ of the victim and the reliability of their testimony.
Some of the reasons why victims may be thought unreliable as witnesses are all too familiar (prostitution, alcohol, drug use – the latter being far more likely to count against a victim than their simply being drunk), some disturbing (women with mental health problems and/or learning disabilities seem routinely to be thought to be lacking in credibility by the Police & CPS) and some merely rather sad and desperate (in a small number of cases, a victim’s testimony has been thought unreliable because they’ve overplayed and embellished their account of the assault in an effort to convince the police that they have really been raped – this sadly has the opposite effect if and when its discovered that their account fails to match up to the facts of the case).
Yes, the system certainly is in a mess, yet very little of this current mess can be said to be predicated on the misogynistic views and opinions of either judges or juries – remember only 14% of cases get anywhere near either - and yet still we find the Observer (Sunday 18 December 2005) reporting that:
“One of the main obstacles to a rape conviction is jurors’ attitude to female behaviour, according to police and legal experts.â€?
Of course it is.
The fact that 75% of report rape cases never reach court is all due to the attitude of jurors towards female behaviour, says those whose job it is to get cases to court in the first place. It has to be that otherwise the public might start asking awkward questions about their work and their attitudes towards women making allegations of rape.
All the figures and information given above are taken; by the way, from a Home Office report (released earlier this year) called “A gap or a chasm? Attrition in rape cases�, which, as its title suggests, attempts to fathom out why so few reported rapes result in trial proceedings and, ultimately, convictions.
Obviously you’d expect a report such as this to cover something of the role that juries and their attitudes might play in this whole sorry mess, given that unnamed ‘police and legal experts’ claim this to be ‘one of the main obstacles’ to convictions – and, of course, you’d be right. The report does indeed touch on the question of juries and their role in proceedings; although in total, the report - which runs to 136 pages - devotes a mere six of those pages to the question to convictions and trials. This is about the same space allocated to issues relating to low rates of reporting by victims and four pages less than taken up with dealing with the question of victim withdrawals.
So what do we learn from the evidence of this report when it comes to jurors, trials and convictions.
Well, for one thing, we find out that conviction rates are much higher (79%) in cases where the victim is under sixteen that where the victim is older – the lowest conviction rates are to be found where the victim is aged between 16 and 24 (49%) while the average for cases involving adults is (59%).
Sadly the report makes no real attempt to explain this difference with due reference to the type of case involved and, in particular, with reference to the use of the ‘consent’ defence – strictly speaking someone who is under 16 cannot legally consent to sexual intercourse and only recently has Britain finally put in place what amounts to a legal definition of statutory rape, under which under 13s are not deemed capable of consenting to sexual activity in any circumstances. (Where a minor is 13 or older but under-16 consent, if given, reduces any potential charge to one of unlawful sex with a minor and not rape). Bearing that in mind it seems a reasonable conjecture to suggest that juries may be less willing to accept a consent defence in cases where victim is a minor, which may go some way towards explaining this difference in conviction rates; particularly as the lowest conviction rates are found in the 16-24 age group who may well be perceived to be the age group most likely to consent to casual sex.
It doesn’t follow, however, that this is necessarily evidence of negative attitudes towards women amongst jurors – it may well be as much a function of negative attitudes towards young people in general.
Conviction rates are higher where the case involves one or more known offenders – notably this data predates the change in law allowing evidence of prior convictions to be introduced to counter attempts by a defendant to use evidence of good character, suggesting that even before the change in law, a good prosecutor would find ways to get this information in, even if it was subsequently ruled inadmissible. (Research using mock juries has shown such information, if introduced, has a marked effect on the jury’s perception of the defendant and is clear prejudicial, even if the judge rules the evidence inadmissible and direct the jury to ignore it – any lawyer, if they are honest, will tell you that judges can issue any directions they like but they still can’t unsay what’s been said in court and have no real control over how that may impact of a jury’s deliberations.)
Alcohol and drugs are clearly a factor, it being easier to secure a conviction in their absence (cases where the victim has used drugs are three times less likely to result in a conviction than those involving alcohol alone).
Again, though, without more data on the cases themselves it is impossible to tell whether this is the result of it having a prejudicial impact on the jury’s perception of the victim or whether the intoxication of the victim at the time the alleged offence took place merely results in evidentiary problems for the prosecution.
The report also notes that physical injury has little impact on outcome (I’m guessing that in cases where an egregious degree of violence is not involved, prosecutors are struggling to get over the difference between rape and rough consensual sex) although if a weapon is used by the assailant the chance of a conviction doubles.
In fact, of all the data given, only the poor conviction rate (11%) in cases involving women in prostitution could be seen conclusively to exhibit prejudice on the part of juries. Even the abysmal conviction rate (7%) noted in cases where the victim has a disability is difficult to attribute to any notional idea of juror attitudes without further information as to the type of allegations involved and the kinds of defence being mounted to such allegations.
Beyond the inconclusive statistical evidence, the majority of evidence given is anecdotal and relates almost exclusively to the trial process and, particular, that of cross-examination which “is uniformly described by complainants as savage and gruelling�, which is undoubtedly true but, again, say nothing about attitudes amongst jurors.
In fact, in support of the contention that attitudes amongst jurors are a significant obstacle to securing convictions, the report offers only quotations from other sources such as this:
“The inability to engage with cultural narratives and macho adversarialism explains rape law reform’s failure. These primary mechanisms by which rape jurors determine credibility are unchanged. Consequently, unjustified acquittals mount.�
(Taslitz, Rape and the culture of the courtroom, 1999, pp154-5)
And this:
“Such a perception outweighs, in many cases, evidence of resistance and visible injuries sustained by the victim, or even gross inconsistencies, changed stories and ‘lies’ in the defendant’s account.�
(Jordan, British Journal of Criminology, 2001b, p72)
(Jordan’s paper appears to relate mainly to the differential in perceptions held by people between so-called ‘real rape’ - i.e. ‘stranger rape’ - as opposed to cases in which the perpetrator is known to the victim.)
In neither case, however, does the research being cited apply specifically to juries in the UK, nor indeed does it appear to deal with juries and jury processes as anything other than a side issue. Jordan does offer a comparison between her data (from New Zealand) and data from a study carried out in Sussex and published in the same journal in 1997, but is, in the main, concerned with the reporting process and the interaction between victim and Police. Taslitz’s work in based on the US legal system which does have similarities to that in UK but also sufficient differences to require careful qualification when extrapolating its conclusions to the UK.
Both authors appear to contend that perceptions of the victim and assailant are much more significant in rape cases than in any other kind of criminal trial. This may or may not be true but such a view is at considerable variance with research carried out in Australia during the same period using ‘mock’ juries, research which supports a rather different view of juries as being swayed far more by, first, physical evidence and second, by the narrative of the cases and, in particular, the ability of the prosecution to successfully establish means, motive and opportunity, before factors such as perceptions of the victim and/or assailant and prejudicial attitudes amongst jurors come into play.
The truth is, therefore, we simply don’t reliably know what does and doesn’t play with juries in rape cases, Taslitz and Jordan appear to extrapolating their views from what goes on in the courtroom and from women’s experiences of interactions with the police, respectively, and may well be overplaying the significance of their findings. Equally, while mock jury studies certainly appear to show that jury perceptions are much less of a factor than either Taslitz or Jordan are suggesting, there are a couple of important caveats to this view.
First, mock juries are not real juries and it is, therefore, impossible to state with any particular certainty to what extent the participant’s knowledge that they are involved in a mock role play exercise and being observed may affect the attitudes they display – if anything observation is likely to moderate the attitudes on display and give a slightly false picture of the extent to which jurors attitudes and preconceptions influence their deliberations and their eventual verdict. More importantly, even if we take the results from mock juries as being wholly valid and accept that jurors are entirely rational actors within the criminal justice system, assessing cases first and foremost on the evidence before them, it still remains the case that physical evidence in rape cases is frequently patchy and inconclusive, if not absent entirely, while the absence of witnesses (plus factors such as alcohol and drugs) can all too easily may a clear prosecution narrative difficult to produce and deliver effectively.
All of which leads us inexorably back to the question of the extent to which pre-existing attitudes amongst jurors may affect the outcome of rape trials.
The best that this report can manage is to state the view that outmoded gender stereotypes, when wielded effectively by defence barristers and perceptions of what may or may not be considered ‘real rape’ play a part in the acquittal rate at trial. This may well be an obstacle to conviction but one still cannot say conclusively that it is one of the main obstacles to conviction based on the evidence in this report, not when 75% of all reported cases fail even to get to court.
What we can safely conclude from the report is that there are considerable problems in the investigatory and legal processes before a case comes to court which result in an unacceptably high attrition rate and that these problems appear to be documented with sufficient detail to allow a competent government to put together a package of measure aimed at getting more case to court, to begin with. On the subject of jurors’ attitudes, the best we can say from evidence is ‘more research needed’.
Still, as the bulk of the Observer article shows, none of that is going to prevent our irrepressibly legislative government from pressing ahead with a raft of new proposals, even if these do turn out to be a couple of good ideas accompanied by an unhealthy dose of the usual populist pandering to media ‘panics’ and special interest groups that we’ve come to recognise as the hallmark of the Home Office over the last eight years.
Let’s take the good first:
For starters it’s proposed that victims should have special advocates to explain judicial process and offer emotional support, which seems to me to be an eminently sensible measure and one which may go some small way to tacking the problems of early withdrawals from cases. The devil is always in the detail and it remains to be seen how extensive a role these advocates will be permitted – hopefully it will extend to something like the provisions of ‘McKenzie’s Friend’ during the trial itself, but in principle it’s a good start.
Its also being proposed that questions of the admissibility of the victim’s sexual history should be dealt with at pre-trial hearings, before a jury is sworn in and takes a role in the case and, again, this seems an eminently sensible move and one which balances the need for defendants (and defence lawyers) to be allowed to mount the best defence possible with the need to prevent, if possible, evidence that is inadmissible and prejudicial being introduce to the jury. The only qualification I would add to this is that such hearings should deal will all character evidence as it relates to both the defendant and victim, including any question of the admissibility of a defendant prior criminal history and strictly enforced – not that this requires any new powers as the existing combination of contempt and the option to declare a mistrial should either barrister bend the rules should be sufficient to enforce pre-trial rulings.
In the ‘mixed feelings’ column I’d have to place the proposal to allow ‘expert witnesses’ to offer testimony as to the victim’s state of mind, permitting the prosecution to suggest that the victim is exhibiting psychological symptoms of having been raped.
Looking at the Home Office’s review, there clearly is a place for psychological evidence in the overall process, not least of which during the early stages of investigations where the police are making assessments as to the ‘reliability’ of the victims account of being raped. There are a range of issues highlighted in the report where psychological assessments would improve the quality of investigations; from dealing with cases where the victim has a mental health problem or learning disability (obviously) to cases where the victim has overplayed and embellished their original account in a mistaken attempt to convince the police to take them seriously (this is currently seen as damaging the victim’s credibility as a witness and has been reported as a reason why some cases are dropped, yet any such ‘damage’ could readily be mitigated by a positive psychological assessment) to cases, which have been reported, where a victim has been viewed as lacking credibility due to witness testimony of their behaviour prior to an attack. Bizarre and discreditable as it seems, the Home Office study does report cases where it appears the decision not to pursue a case has been based on witness testimony about the victim’s behaviour prior to an attack – the old ‘she was with the guy all night in the pub and they seemed to be getting on fine’ story. At that stage, psychological evidence could make a real difference to whether a case is pursued or not by removing doubts amongst the police/CPS as to the veracity and reliability of victim’s account of events.
I’m less convinced about such evidence being introduced in court, at least not unless it is relevant to a specific element in the investigation, i.e. as reasonably contemporary evidence that a rape took place rather than as evidence of trauma ‘after the fact’ which is far less reliable. I would also be unhappy to see such evidence introduced in an effort to counter a defence of ‘consent’ not least for the reason that equity of process demands that the defendant be permitted access to the same type of expert testimony and this would be likely to result in difficult cases being resolved on the basis of who has the more convincing expert witness.
It should be remembered as well that psychology is far from being a precise, empirical science – something I know was as I am a psychologist by training – and as such, behavioural evidence can never be considered to 100% definitive; people are just too damn complex to allow for such a degree of certainty. Such evidence may well assist the prosecution – it could also assist the defence in cases where a false allegation has been made – but at best it only indicative evidence and not conclusive. One therefore has to be very mindful of the risk of ‘white coat syndrome’, the propensity for some people to believe anything they’re told by someone wearing white lab coat and take it as proven fact. Expert testimony, as the case of Sir Roy Meadows clearly demonstrated, is still only opinion and the opinions experts can be wrong – in the courtroom this can have terrible consequences.
Well that’s the good, the mixed, so now we come, inevitably with this government, to the proposals that are mad, bad and dangerous to contemplate, which inevitably means that there’s a possibility that the government may seek changes to the Sexual Offences Act 2003 in order to ‘clarify’ the definition of ‘consent’ within the Act…
…and all because one judge, in one case ruled that ‘drunken consent is still consent’.
This is an appalling suggestion because… bloody hell, where do I start?
How about constitutionally, as the very idea that a government might move to change the law and impose its own interpretation of ‘consent’ on the courts on the basis of one decision it (or rather the media and a few vocal interest groups) dislikes serves to fundamentally undermine the constitutional separation of powers between the legislature and executive (Parliament & government) and the judiciary and compromises the very independence of the judiciary that is such a fundamental part the constitutional settlement.
If you’re wondering what that means then I’ll spell it out – Parliament makes law, judges interpret law.
That is how things have been for centuries, how they should be and how things should remain if we are not to descend into a police state.
Not only does the practice of this government of ‘jumping in’ and threatening to legislate every time a judicial decision goes against them or plays badly with the press/public opinion undermine the constitutional separate of powers it also undermines the very process of the common law and jurisprudence as well.
To illustrate what I mean, the current definition of consent within the Sexual Offences Act 2003, which is what is at issue here, is as follows:
“A person consents if he or she agrees by choice to the sexual activity and has the freedom and capacity to make that choice.
All the circumstances at the time of the offence will be looked at in determining whether the defendant is reasonable in believing the complainant consented.
People will be considered most unlikely to have agreed to sexual activity if they were subject to threats or fear of serious harm, unconscious, drugged, abducted, or unable to communicate because of a physical disability.�
What I’ve given here is the definition of consent from the CPS’s website which is a little friendlier that the text of the Act itself.
The current furore relates to the question of having the ‘freedom and capacity’ to make the choice to engage in sexual activity, which some contend should include the principle that a woman may be considered too drunk to give consent even if not so drunk as to fall unconscious – and in fact the main problem in the case which stirred up this whole issue (apart from timing as it coincided unhappily with the publication of an Amnesty International survey and public attitudes towards rape) was that the alleged victim has been so drunk that she was unable to say whether she had consented or not, which then led on the trial judges ‘contentious’ ruling.
What seems to be being forgotten here is that this is one ruling in one case and, unless I see a transcript of the judge’s comment to the contrary, not a ruling that judge, himself, indicated should be considered an absolute and definitive precedent.
What has actually happened here is that the judge in the case has applied a particular, and some would contend overgenerous, interpretation of the definition of consent to the case before him. If one looks, however, that the actual statutory definition of consent then it talks both of consent being possible only where someone has the ‘freedom and capacity to make that choice’ and that ‘all circumstances at the time of the offence’ will be taken into account in determining whether consent could legally be given.
With that in mind and even allowing for the recent case having set something a precedent, there is no fundamental reason why a judge in similar case in future could not modify or set aside, to some degree, the ruling which has caused the current contention and apply his own, more stringent, interpretation of what constitutes the freedom and capacity to make a choice. And later on another judge hearing another similar case may decide the second judge was a bit too stiff and the first one a bit to lenient and come up with a third interpretation somewhere in between… and so and so forth.
That, at is simplest level, is jurisprudence and how the common law has developed over the last 1000 years. Successive judges in successive cases adapt and modify rulings handed down by their predecessors until, over the course of several case, a clear precedent is set and a definition arrived at which judges more or less universally agree is reasonable and proportionate. Under the common law, laws take a little time and few cases to bed-in fully and settle down and that is precisely what should be allowed to happen here. Politicians have no business interfering in this process, not on the basis of a single ruling in a single case.
At the risk of sounding like Chris Dillow (of Stumbling and Mumbling) this is yet more ill-advised rampant and unnecessary managerialism at work.
As things stand, the definition of consent introduced in the 2003 Act already transfers the burden of proof from the prosecution to the defence in cases where the defence of consent is used. It is now the defence who must show that it was reasonable for the defendant to believe that the alleged victim consented to having sex rather the prosecution having to show that the alleged victim did not consent. Attempting to further ‘clarify’ the law to define a degree of drunkenness beyond which consent may not considered to have been given doesn’t solve the problem at all – the prosecution will still have to show to some extent that the victim was too drunk to give consent which will remain problematic unless the victim wakes up the next morning, reports the rape immediately and get a blood-alcohol test.
And even then, how does one distinguish, in such cases, between consent, or the lack thereof, and regret after the fact.
Unless condom manufacturers are going to start including proforma consent forms in every packet of three – assuming the drunken couple don’t go bareback – it is nigh on impossible to differentiate under the kind of test that some are advocating, where a woman may legally be deemed ‘too drunk to fuck’ (got to get a Dead Kennedy’s reference in there somewhere) between situations where there is genuinely no consent and those where the alleged victim wakes up the next morning, regrets their actions and cries foul – except that there is a critical difference in the two situations as one is rape and one isn’t.
The potential for miscarriages of justice here is both phenomenal and frightening at the same time.
Even more absurdly, you’ll note that the definition of consent says ‘he or she’ and while the wording of the Act’s definition of rape appears to preclude the idea of woman being charged with raping a man, in a situation where both parties are drunk to the point of being beyond this hypothetical level at which one can be too drunk to give consent it would be possible for a man to claim that he has not consented, leaving the woman faced with a possible charge of sexual assault. It may even be possible for a woman to be charged with raping a man in such a situation – I’ve not come across any such case in the UK (although I may just have missed it if there has been one), but rare cases of this kind have cropped up in the US and on the continent.
Imagine the furore that would stir up were a man to complain that he was too drunk to have consented to sex and therefore had been raped/sexually assaulted by a woman – you can hear the blood vessels popping over that the Daily Mail and Daily Express just by contemplating the idea.
There are constitutional, jurisprudential and practical reasons not to tinker any further with the legal definition of consent in rape cases – the less said about the abhorrent suggestion that only judges who’ve undertaken a government approved course in handling complex rape cases, the better, by the way – for doing what we’ve done for the last 1000 years and allowing the judiciary to get on with the business of interpreting the law free from governmental interference.
Yet, personally, there is an altogether more visceral reason why I must oppose any notion of further changes to the law on consent – I simply don’t trust those who advocate such a change in law.
Yes, current conviction rates in rape cases are unacceptably low and there are systemic problems in the way the legal system deals with such cases that need to be addressed – addressed by improving the quality of investigations and of the evidence put before courts not by trying to tip the law in favour of the victim.
Why?
To answer I could quote the jurist William Blackstone. ‘Better that ten guilty persons escape than that one innocent suffer.’ – an English jurist I might add.
Justice may be poorly served when the guilty go free but it is never served when the innocent are condemned and that for me, is why the single most important principle on which justice and the British justice system is founded is that of the presumption of innocence.
Sorry, but it seems to me that in the rush to demand justice for the victims of rape whose cases fail, unfairly, to lead to a conviction, there are far too many campaigners who would willingly trade away the principle of ‘innocent until proven guilty’ in return for a few more convictions and that is both frightening and fundamentally wrong, whose own prejudices are, to them, more important than justice.
I simply cannot trust anyone, campaigner or politician, who sees the world that way.
In the criminal justice system, two wrongs certainly don’t make a right nor can one combat the injustice of a legal system that is patently failing many victims of rape by visiting on the accused the injustice of a presumption of guilt, however seductive the idea of more convictions and more rapists behind bars might seem if taken at face value.
