Virtually all rape victims are denied justice: Here is the roadmap to failure.
This article focuses on the criminal justice outcomes for genuine victims of sex offences. They are referred to as ‘victims’, not ‘alleged victims’. Nothing here is intended to infer that all those accused of sex offences are in fact guilty, or that all those accused are in fact men.
In recent months, England and Wales has seen the familiar disastrous trend: in overwhelming numbers, the most serious sex offences are not leading to convictions.
Since 2016-2017, the number of rapes reported has increased by 67% from 42,059 up to 70,330. In 2021-2022, only 3.2 % of those were prosecuted (2,223). For those prosecuted, the conviction rate in 2022 was 62%. No statistic can provide a perfect, complete picture. The total reports include ‘historical’ allegations which are usually harder to prove. But the broad indication is that, during 2021-2022, of the 70,330 rapes reported to police only 1,378 led to a conviction. This is a conviction rate of less than 2%.
However these outcomes are viewed - whether in light of short term targets or recent trends, a 2% conviction rate is an absurd, abject failure. Of course, not every report of rape is true. There will always be a proportion of false complaints, and only a clairvoyant would know exactly what that proportion is. But nobody seriously thinks that 98% of those alleging rape are lying, or grossly mistaken, about what happened to them.
In fact, most rape allegations have a significant head-start on other types of crime, namely that identification is not the problem. Unlike in other crimes such as theft, burglary or robbery, the vast majority of rape victims know who their abuser was. Typically, he is a man whose name, address and whereabouts are available to the police, and he attends the station when they ask him to.
The notion of ‘He-said-she-said’ cases being harder to prove is a factor, but not an excuse. The idea that the lack of independent evidence can account for a 2% conviction rate is simply wrong. Thousands of crimes happen every day behind closed doors, without CCTV cameras or witnesses. The ‘He-said-she-said’ excuse fails to explain how non-sexual domestic abuse is more than twice as likely to lead to both prosecution, and conviction. Also, those domestic abuse figures do not include the police cautions administered - still a criminal record for the accused, after a confession. A police caution will hardly ever be the outcome in a rape investigation.
The logical conclusion is that there are unique factors about rape allegations which make getting the guilty party convicted far more difficult than other offences, despite him being readily identifiable. So, what are these factors? Where are these staging posts on the roadmap to failure?
The following is based on the observations of a solicitor over the last 20 years: one who has read through the evidence and also watched numerous trials, often keeping an eye not on the advocates or the judge but on the members of the jury and their reactions to both the victim, and the accused.
- Resources, Delay and Trust in Police
This key point has been extensively covered elsewhere. Pressure on police resources, police numbers, police expertise, at a time when more and more digital evidence may be relevant, has made these investigations take far longer than ever before.
Delay is not necessarily the death knell for a criminal allegation. Many victims remain motivated, consistent and committed. But, in 2021-2022, the average waiting time between reporting and charge was almost six months. Post-charge, it can take another 1-2 years to reach trial. All that time, most victims will dread being cross-examined by a clever lawyer about a hugely traumatic event. Many victims will consider withdrawing their support. To survive this delay, the victim must hold faith and stay in contact with those bringing the case. The challenge for the police is to maintain that faith. This is now more difficult given some police officers are being exposed as dangerous sex offenders. These are not isolated ‘bad apples’, but a significant minority of officers. Despite the scandals, it is hoped that victims of crime will treat with their assigned police officers as individual people, not as part of a group mindset.
All that being said, to talk only about resources and delay as being the cause of such low conviction rates is simplistic and complacent. There are other reasons why prosecutions go awry.
- Failing to Melt the Icebergs
In any criminal prosecution, it is important to carefully guard the credibility and truthfulness of the victim. It is a fact of human interaction that everyone makes errors and tell lies, both small and large, in their everyday conversations. But in sexual offence prosecutions where the issue is consent, these small errors and lies can be pivotal. For a variety of reasons, the victim (V) might make errors, or tell small lies, about the following:
- Whether V was drinking alcohol, and/or in what quantities,
- Whether V can actually remember what happened and if so, how clear that memory is,
- Whether V had shown any initial interest in the accused e.g. dancing with or kissing the accused, or agreeing to share a taxi home,
- Whether V’s first report to a third party (either police, friend or relative) contained any errors and, if so, why?
- Why V did not report the matter to police promptly,
- Why V sent a message, or posted online, something which looks inconsistent with the offence,
- Whether and/or why V contacted the accused after the offence was committed.
No criticism is intended in any of the above. None of them constitute consent, nor do they show that the accused is innocent. The problem lies in the victim not being candid and open about them from the start. There are many reasons why a truthful victim will tell small lies, or at least not reveal facts which later seem important to the issue of consent. Faced with the trauma of what the accused has just done, a victim might edit out that they initially fancied the accused and told others so. Additionally, certain key facts might be concealed for cultural reasons, or to avoid embarrassment, or due to the expectations of supportive friends and family. Criminal trials are heard in an open court, to which the public have access. A quick look at our social media profiles tells you that we all curate our public image to some extent.
Whenever and however these errors and lies occur, both victims and police investigators must appreciate that they make a defence lawyer’s eyes light up. During trial, the jury tend to start off giving the victim the benefit of the doubt. But victim credibility is like the Titanic sailing through the trial. It is the defence lawyer’s job to place icebergs in its path, both small and large. In this way, it only takes one or two blows to sink the victim’s credibility below the required standard or proof. When that happens, the defence need simply ask the jury to give the accused the benefit of the doubt. And, provided he gives a consistent account, avoiding icebergs of his own, then the chances of being found guilty are very low.
How do victims avoid this? From the very start, the victim must give a candid, unvarnished and unashamed account of what happened, and how it happened. Should icebergs start to form then the police (or their advising lawyer) must spot them, and then melt them. For example, if the CCTV evidence clearly shows that an avowedly ‘teetotal’ victim was in fact buying rounds of tequilas and sharing them with the accused, the police should take an additional victim statement explaining not only those tequilas, but also why they were not disclosed to police in the first place. Correcting this error with a further victim statement will (i) help to melt the defence’s iceberg, and (ii) help prepare the victim for cross-examination, rather than allowing silly but avoidable lies being uttered in front of the jury.
Of course, spotting and correcting these issues takes attention to detail, a strong but sensitive commitment to the victim, and a good rapport between police and victim. A 2% conviction rate suggests that not enough police investigators are doing this properly. 68,107 of the rapes reported to police last year will not be prosecuted. We do not know the alleged facts behind them. But we can safely assume that a significant number were the truth. Many of those did not proceed because a cautious police officer (or a trial-weary prosecutor) decided that the victim’s credibility would be sunk by an iceberg and so decided not to put them through it.
- The Jury’s Attitude Towards Sexual Consent
In England and Wales, the jury are randomly drawn from the electoral register and sent jury summonses by post. On a rough estimate, the electoral register omits about 5 million people (46m, down from an adult population of 51m). Most of the missing 5 million are young adults. It means the average age of those registered to vote is over 40. The average age of a juror is very probably even higher. In 2016, the maximum age of a jury member was increased from 70 up to 75 years old.
When called for jury service, a greater proportion of younger adults will be unavailable – they are more likely to be travelling abroad, taking exams, or just not receiving the jury summons because they move address more frequently, or leave post unopened. Anecdotal experience of a typical jury room will attest to this - there are not many youthful faces in there, particularly outside the large cities.
By contrast, victims of sexual offences tend to be young women and girls. The result is that the typical juror, tasked with deciding on issue of consent, will be at least twenty years older than the victim. Sometimes, a juror might be forty or even fifty years older than the victim.
In order to prevent a conviction, all that is needed is 3 out of the 12 jurors to not be sure of guilt. Of course, at least that many might be from a different generation, and some of them actually two generations older than the victim. Of course, a septuagenarian juror is not necessarily skeptical about all young victims, but views on sexual consent have changed from the 1960s, 1970s and 1980s. This generational context was highlighted in the recent and high-profile multiple rape trial of footballer Benjamin Mendy and his friend Louis Matturie. This trial ended with no convictions. We do not suggest either of those defendants were in fact guilty: our purpose is simply to highlight the generational context used. Here is an extract of what Mr Matturie’s counsel told the jury in her closing speech:
“It is very dangerous to mix feelings and emotions with criminal law…. Women have earned sexual equality. Young people may approach sexual encounters very differently from those who earned that sexual equality. You may think that many young women actively pursue sexual encounters with men they hardly know. That is their right. But consensual sex is a complex thing. Regret and hurt and embarrassment can all follow sexual intercourse”
Those are the words of an experienced advocate in sex offence trials who seems to have got the measure of the jury in front her. The reality is there are a significant proportion of jurors in England and Wales, mostly from older generations, who do not share the modern view of what sexual consent is, or when it is reasonable to believe someone is agreeing to sex. This perception is not limited to male jurors.
To take a scenario (not linked to the above case):- a significant minority of jurors might think that if a woman gets drunk with a man, flirts with him, kisses him, and then goes back to his bedroom at 2am, then it is a reasonable assumption that she is consenting to sex - regardless of what is said once they were inside that room. So they are likely to conclude that his belief she was consenting was a reasonable one. It is not suggested that all jurors of a certain age hold this view. But if 25% of the jury have a very old-fashioned attitude of how sexual consent is communicated, the reality is that some rape prosecutions are finished before they have even begun.
To improve these conviction rates, public attitudes of sexual consent also need to change and modernise, particularly among the older generations which make up significant jury numbers. But shifting public attitudes is a slow process. And it is made more difficult by the next factor, also unique to sex offences.
- The Effect of Lifelong Victim Anonymity on Public Attitudes.
This following is an observation, not a criticism. It is not suggested that the victim’s right to anonymity should be removed. It is still very rare that victims of rape or sexual assault reveal their identities and voluntarily tell their story. The right to lifelong anonymity means they are, rightly, never named and will hopefully never feel obliged to publicly discuss their trauma. But this also means the public at large will never hear from them. Hearing directly from victims raises public awareness and is helpful in updating people’s understanding of crime, and how crimes take place. People are social animals - we will respond empathetically to true stories, directly told by those affected. Victims of fraud, robbery, violence, families torn apart by drugs, all are directly seen and heard on the news, in victim appeals, and on ever-popular true crime documentaries. This helps keep potential jurors aware of how those offences are being committed against normal, credible and sensible people.
But, due to victim anonymity, such direct testimony barely exists with sexual offences. There has been a ‘gap’ there for decades. Instead, the public might watch a shadowed face in a darkened room, with an actor’s voiceover. This will never inspire the same empathy from the public. Nor will the latest plotline of Eastenders, however progressive and informative the producers are hoping it will be.
Due to this ‘gap’, a typical juror who grew up in the 1960s may now sit through a trial without that same empathy for modern victims of sexual offences. This is simply because he has never heard from such a person before. So, when hearing a young woman allege rape in 2022, he is less likely to have an updated perception of what such an offence might entail. To him, it might seem unlike anything that would have been prosecuted in the 1970s, 1980s or 1990s. Such a juror is more likely to be influenced by the defence icebergs simply because the first time he hears directly from a real victim, there is also a clever lawyer on hand working to sink her credibility.
It follows that wherever victims are willing to come forward and share their experiences, this should be widely supported. This has already started in relation to so-called ‘revenge porn’ - sharing private images without consent. People such as Georgia Harrison has described how TV contestant Stephen Bear committed voyeurism, and then shared the video of himself and Ms Harrison without her consent. Zara McDermott (a Love Island contestant whose private images were published without consent) has also shared her account of both revenge porn, and sexual assault. The impact of victims waiving anonymity to share their experiences will help shape public perception of what consent means in modern Britain. They, and all like them, should be applauded.
- The Lack of Explanation for the Verdict.
The final factor is that jury members do not have to provide reasons or explanations for their decision, either individually or collectively. In fairness, this factor is not unique to sex offences. However, what it means is that both victim and prosecution team facing a ‘not guilty’ verdict are left without any clues as to what went wrong. In cases where consent was the issue, it is never revealed which part of the Prosecution case failed, namely:
- Was it that the jury were not sure that the victim didn’t consent? In other words, did the jury think the victim might have consented to sex? Or:
- Were the jury sure that the victim did not consent to sex, but nevertheless thought the accused might have reasonably believed that the victim was consenting?
In a consent case, these two routes to acquittal are very different. The first essentially means the jury were not sure the victim is telling the truth. The second means the jury believed the victim wasn’t consenting but that the accused could have reasonably believed there was consent. It could prove extremely helpful if the jurors were each required, in consent cases, simply to identify which route they took. This might mean each of them simply ticking a box. It would help victims in unsuccessful prosecutions to know whether the jury believed them. As it stands, such a victim might well be left distraught, assuming they were simply not believed. This can have a devastating personal effect and, in hung jury cases, destroy any victim appetite for a retrial. Knowing each juror’s route might also help the Prosecution and police understand where, and how, these prosecutions are failing. ‘Feedback’ is not everyone’s favourite word, but it is sorely needed for prosecution teams in this field.
The above five factors are an honest reflection from an experienced lawyer of why conviction rates in sexual offences remain so absurdly, shockingly low. It is not intended as a description of any particular case, nor is it reflective of all cases.
If you have any questions about criminal investigations or trials for alleged sex offences or other criminal matters, please contact our Crime and Regulatory team Here