Journal

The ‘justice gap’ in sexual offences: Why is the criminal justice system failing rape victims?

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Conviction rates are depressingly low

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The world is still reeling from the outcome of pop singer Kesha’s recent court case, so now seemed a good time to reflect on our own legal system and how it deals with rape allegations.

The main focus of the criminal justice system is the successful investigation and detection of crime in order to bring offenders to justice. This is reflected in Narrowing the Justice Gap, which says:

Bringing offenders to justice is the best way of demonstrating to criminals that their crimes will not go unpunished, and to victims that the criminal justice system is acting effectively on their behalf.

But, the report continues:

[T]here is a justice gap. Only a fifth of crimes recorded by the police result in their perpetrator being brought to justice. We can and must do better.

And this sentiment rings especially true in the context of sexual offences, where the justice gap is indefensibly wide — and widening.

Numerous national surveys and statistics record the rate of attrition and conviction of specific crimes, which gives a clearer indication of the justice gap on an offence-by-offence basis.

Sexual offences make for a particularly interesting comparison to other crimes, given that the rate of attrition for rape is much higher and it has the lowest conviction rate of all serious crimes.

In percentage terms, 2013 saw 24.5% of recorded rapes being detected. Criminal proceedings were instigated in 75.5% of those detections, equating to 18.5% of all recorded rapes. Of those instances of court proceedings, 36.7% resulted in rape convictions. This equates to 6.8% of all recorded rapes. This is a good indicator of the effectiveness of the criminal justice system — namely that the system is extremely ineffective.

Shockingly, the rate of conviction only seems to be getting worse. In 1977 the conviction rate was 32%, meaning 1 in 3 victims saw their assailant brought to justice. Now it is just 1 in 15 that receive this outcome.

What is even more shocking, perhaps, is the number of rapes that go unreported. Though last year’s figures show a marked increase in reported sexual offences, this does not detract from the fact that most rapes go unreported. In 2013, between 60,000-95,000 people experienced rape. Of these cases, 16.5-26% were recorded and only around 1% of all estimated incidents led to conviction.

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From the turn of the decade, the number of people experiencing rape has stayed steady — and so too has an entrenched unwillingness to report the offence. A frequently cited reason for not doing so is that the victim didn’t think the police could do much to help.

Trends in recorded crime statistics can be influenced by whether victims are willing to report the crime, but trends in conviction rates can also be the reason that victims are unwilling to report incidents to the police in the first place. There is a lot of work to be done before victims’ trust in the system is gained, such as dispensing with rape myths and stereotypes.

It’s not just victims that feel the impact of low reporting rates. The more offenders brought to justice, the less crime. Home Office research indicates that increasing the frequency of an offender being caught and convicted is the single most effective way of shortening their criminal career.

But in the context of rape, the system is not, and cannot be, a crucial indicator of success in reducing crime, because so many cases of rape are never recorded by the police. Sure, this is most likely true for other offence statistics, but it is considerably higher for instances of rape.

The skewed reality between the number of rape reports and convictions compared with the number of incidents that occur paints a very dismal picture — one where the system lets dangerous rapists run free.

It is a terrible shame that, looking at the overall position of the justice gap for rape and its implications, Temkin and Krahé hit the nail on the head when they say:

The message from the criminal justice system could not be clearer. Women must put strict limits on their behaviour, must trust no one and take no risks. And, since even this is not at all a guarantee of safety, they must learn to live with rape.

Efa Gough is a recent graduate from the University of Nottingham and an apprentice at the London Borough of Bromley.

Sources

J. Temkin and B. Krahé, Sexual Assault and the Justice Gap: A Question of Attitude, (Oxford: Hart Publishing, 2008)

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34 Comments

Lord Keith of KInkel

The author makes the common mistake of confusing an allegation of rape with an actual crime.

How many allegations are false?

Loads reported in the papers all the time…and those are the only ones that get to court.

I’m sure that the Police don’t charge loads of suspects, especially of the ‘date rape/been drinking’ variety, simply because the complainant’s story is full of holes…

Nubar Gulbenkian

Listen and believe, misogynist!

chancery

What are you talking about? The notion that the “only” rape cases that get to court are the ones reported in the press is abject nonsense. Those in the press represent about 0.000001% of cases!

Boh Dear

I think the greatest difficulty, post reporting the offence, is that it is often one person’s word against another. However, I do not think that the criminal burden of proof should be varied. The requirent of mens rea upon which guilt is established is inimical to increasing rape convictions; it is too easy to convince a jury that the mens rea was absent.

I think immediate positive steps that can be taken are educating people about rape and attacking misconceptions. I also think harsher sentences should be handed out to those convicted.

Anonymous

I find it interesting that in this article about rape they fail to at all mention the elephant in the room namely false rape allegations and the effect that has on the credibility attached to some who do come forward.

chancery

And you make the fundamental mistake of thinking that because a man is acquitted of rape then he is in fact innocent. Sure he’s been acquitted but we’ve all represented defendants in all areas of law who get acquitted but we know they did it! Our standard of proof and the many issues that the jurors simply don’t get to hear see to that! And the preposterous ease with which a deft cross examiner can undermine the account of the most veracious of witnesses is well known.

Anonymous

The author seems to have based a lot of their argument off of the flawed assumption that all allegations of rape are truthful.

One cannot just assume (as the author seems to) that defendants found not guilty of rape still actually committed the crime.

Law student

The author failed to identify the percentage of false allegations made and then contextualise it in expalining on why the number of convictions is so low. But good effort.

Just Anonymous

Gough noticeably fails to offer any sort of solution to this so-called problem.

Obviously she can’t. Because any ‘solution’ would involve overruling the most fundamental principle of our criminal justice system: that people are innocent until proven guilty.

As other commentators have already noticed, Gough has already overruled this principle in her own mind by apparently automatically assuming that every rape accusation is actually true.

Boh Dear

I wholly agree with this point. It’s a sad state of affairs and not one I profess to have the ‘answer’ to.

Some may say that the rules surrounding the burden of evidence should be changed but this would be a grossly unjust change. I feel the balance is on such a knife edge that, were there to be any change, simply admitting to having had sex would be adequate evidence for a conviction. This might sound extreme but I genuinely don’t see there being a solution other than preventative and deterrent measures. I do not think women should have to live with rape but I do not see an easy solution to this difficult problem.

Boh Dear

(Adequate evidence in the face of accusation that is!)

Anon

A mental health assessment for both parties to such cases should be mandatory.

Anonymous

“Shockingly, the rate of conviction only seems to be getting worse. In 1977 the conviction rate was 32%, meaning 1 in 3 victims saw their assailant brought to justice. Now it is just 1 in 15 that receive this outcome.”

I suspect this passage is a rather fundamental error based on comparing different figures. The 1977 figure (before the detailed crime statistics we have today) would be the rate of criminal prosecutions resulting in a conviction. As per the article, that figure now is 36.7%. The true comparison would therefore show a slight increase in convictions rather than a five-fold drop.

Mumsie

Don’t let the facts get in the way of a good old rape bashing

Anonymous

It looks as though the error is worse than that. In fact this article seems very badly wrong. Understating – albeit through error – the likelihood of investigation, charge and conviction following rape complaints does rape victims no favours since it tends to dissuade reporting. For a good explanation see this excellent, if slightly old, Guardian article: http://www.theguardian.com/commentisfree/2012/mar/19/myths-about-rape-conviction-rates

Ellie

False accusations make up a tiny percentage of rape allegations, but their impact is staggering. Men and women that lie about being raped make it so much harder for true victims to come forward. True victims have an intrinsic fear that they won’t be believed, and it’s this that drives disappointing reporting rates.

Anonymous

“Men and women”?! Let’s not beat around the bush, how many men make false allegations of rape?

Anonymous

Muh feminism…

Anonymous

At the time of this post, the majority of the comments below the line were effectively casting doubt on the conviction rate in rape cases on the basis that a significant proportion of rape allegations are untrue.

Now, notwithstanding that the vast, vast majority of rapes are not even reported* (so literally cannot be false allegations as no allegation is made), this is just wrong. There is no epidemic of false rape allegations. Any statistical analysis will show this. A simple example could be this 2013 CPS report: https://www.cps.gov.uk/publications/research/perverting_course_of_justice_march_2013.pdf, which shows that in a 17 month period between January 2010 and May 2011 only 121 referrals for false rape allegations were made to the CPS – an average of 85 a year. But of those, only 35 were charged – an average of 25 a year. In the context of the number of rape allegations referred to the CPS in the same period (5,651) the number of false allegations is tiny. Put that in the context of the number of actual – including unreported – rapes, and that number starts to look statistically irrelevant. In the period 2009 to 2011 an estimated average of 60,000 to 95,000 rapes took place annually.

Are false allegations of rape made? Yes. Are they the majority of allegations? No. And there is no evidence whatsoever that there is any significant rate of false allegations – other than a preponderance on the part of the media to more readily report false allegations than genuine cases.

* https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf Page 17

** ibid, page 13

DustyWig

The author fails to mention the presumption of innocence and the criminal standard of proof. Or does she consider them inconvenient?

Anonymous

Does she even law?

Anonymous

As always, the failure to properly differentiate between reported incidents, and convictions, as highlighted by the completely mistaken assertion regarding the conviction rate dropping. Lazy journalism, bordering on irresponsibly.

Moreover, where is the comparison to other types of crimes? How do the conviction rates for rape compare to other offences?

Anonymous

Interestingly, I wrote a referenced reply rebutting all of this talk of false allegations, but Legal Cheek has decided not to post it. Pourquoi pas?

Just Anonymous

It just might not have been approved yet. I think that whenever you post internet links, your post always remains hidden until Legal Cheek has vetted the links (presumably to protect them from the odd nutter who might post links to pornography, for example.)

Lord Lyle of the Isles

Ah law French. We forget it is very much part of our law. In the CA case of El Ali et al (law Latin) v SSHD, UN intervening circa 2004, the traveueax preparatoire of the UN convention of the status of refugees 1951 or something required the CA and the advocates to comprehend French. It amused me well.

The House of Lords (detest the supreme court thing) still use proper medieval law French in their nomenclature.

Proud of you guys for understanding basic law principles like innocent until proven guilty.

Often the complainant is proven guilty: perversion of the course of justice, wasting police time, deliberately making a false criminal allegation, black mail etc .

I can translate that all into French or Latin.

Anonymous

Missing out crucial pieces of the overall argument, and drawing conclusions from misrepresented data? I thought I was reading Comment Is Free on The Guardian for a minute

Lord Lyle of the Isles

Boh Dear is not a lawyer. Can it be removed please? This happens because law students share LC with non lawyer friends and then their non lawyer friends spam their grand guignol here. This is why I never share legal posts with non lawyers. It’s like sharing the Punic wars with plumbing trade acumen. Please LC?

Boh Dear

Bitch please

Unlikely to be popular

Interesting, aside from the statistics issues identified in various comments above.

There is a more general issue with the argument that conviction rates for rape are too low: why does it matter the rate is low, so long as each outcome is just?

A few features of rape should be identified:
-It generally involves two people in a place without independent witnesses;
– it often occurs in circumstances where some or all of the participants are intoxicated and have recollections lacking credibility;
-Forensics are generally not relevant as the issue is often consent, rather than penetration occurring;
-there is no documentary trail to prove it; and
-there is generally no CCTV to verify what happened.

In short, it is jolly difficult to prove. If a jury is not sure rape has been committed then it acquits. It might suspect a rape, think a rape was probable or even very likely, but it will still acquit. And rightly so; that is the consequence of our burden and standard of proof. Juries are especially cautious around sexual offences owing to the severe social stigma that attaches to sexual offending. Rape is just one of those offences that is difficult to prove – it is one word against another, often where intoxication was present at the time, denting credibility.

It is no surprise the conviction rate is low, and so be it, so long as each outcome is just.

But, I am not saying complainants should not be treated better. They should. Cross examination should be effective. It need not be fierce.

Lord Lyle of the Isles

The Justice gap will close upon the restoration of corroboration, the restoration of the requirement for the complainant to prove rape and the abolishment of the requirement of the accused to prove consent.

Now one must audio record all sexual liaisons.

The gap would finally close when false accusers receive the same sentence as the accused.

Lord Lyle of the Isles

R v Edwards , ongoing.

Lord Lyle of the Isles

If only she had cried rape?

Lord Lyle of the Isles

If conviction rates for rape are so “depressingly” low, why aren’t conviction rates for attempting to pervert the course of justice etc, so “exhiliratingly” high?
No one’s actually conducted a rape case here,
I assume from the comments above

Tronald Rump

Conviction rates are “depressingly” low because juries are (a) conscientious and will seek to acquit where the case has not been made out to the standard of proof required in criminal courts and (b) not only astute to false allegations of rape, but also astute to cases of one-night-stands where the woman feels shame the morning after and decides, in a daze of shame and confusion, to make an allegation (consent revisionism, one might call it).

Conviction rates are also “depressing low” because the CPS are under orders to press ahead with even the flimsiest of cases and to hell with the Farquharson Guidelines.

Alison Saunders, the hack that she is, has tried her best to stack the deck against men in rape cases in order to feather her nest as a future Labour MP.

Unfortunately for her, and for ideologues like the person who wrote this article, the wisdom of juries prevails.

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