Figuring out consent

‘One in 20 women has been raped’, screamed headlines reporting the findings of the 2000 British Crime Survey (BCS).

The UK government issued a press release highlighting this statistic as a ‘key finding’, just as it announced an ‘action plan’ to improve the handling of rape cases – saying that it is ‘determined to turn around worryingly low reporting and conviction rates for rape’ (1).

The ‘one in 20’ statistic does seem to give cause for alarm – because if one in 20 women has been raped, then a tiny proportion of these incidents have seen the light of justice. Twenty percent of the rapes measured by the BCS had come to the attention of the police, but only around 10 percent were actually reported by the victim (2). One in five of those reported to the police reached trial, and less than half of these resulted in conviction for rape or attempted rape (3).

According to these figures, then, the chance of a rapist being convicted is around one percent. In 1999, for example, the BCS estimates that 61,000 women were raped, yet there were only 631 convictions or cautions (4).

Yet the ‘one in 20’ figure is misleading and alarmist, and untangling these statistics shows a rather different story. The BCS measures people’s experiences of crime, not crimes reported to the police. The BCS might claim that 61,000 women were raped in 1999, but it should be noted that in that year, only 7809 offences were recorded by the police as rape. That only 631 convictions resulted from these recorded crimes seems worryingly low. But again, we need to take a step back.

With any crime, a fraction of recorded offences go to trial; and of these, not all result in a conviction. There are many reasons for this – not least that the defendant is sometimes innocent. Rape cases are particularly difficult to prosecute, and to ensure a conviction.

Rape is generally a crime committed without witnesses, and so it often involves the jury balancing one person’s word against another’s. It is a very serious offence, with major implications for the liberty and reputation of the convicted. If the law demands that a defendant be proven guilty beyond reasonable doubt, a high number of acquittals are to be expected.

Much has been made of the argument that this ‘one in 20’ statistic blows apart the stereotype of rape as a crime committed by a stranger in a dark alley. The BCS found that 45 percent of rapes were committed by the woman’s current partner, 11 percent by her ex-partner, 11 percent by somebody she was on a date with, and 16 percent by an acquaintance. But it has been well known for years that many rapes take place within the context of an existing sexual relationship.

Much is also made of the reasons why women do not report rape: they feel intimidated, they are ashamed, they feel that there is little chance of conviction. But many rape victims no doubt avoid going to the law because they do not want the incident to be picked over in intimate detail for weeks on end, or have a man they know sent to prison. So far as the victim is concerned, the blunt instrument of the law is not always the best way to deal with the incident.

But there is something new going on in relation to the discussion about rape, which gives rise to figures proclaiming that ‘one in 20’ women has been raped. In the past few years, a shift has taken place in the discussion of, and definition of rape – which makes it even harder to deal with this crime adequately through a court of law.

Rather than being viewed primarily as a crime of violence, increasing emphasis is now put upon the issue of consent. Setting the Boundaries, a report by the UK Home Office in late 2000, marked this shift in definition. The report’s authors proposed that the ‘offences of rape and sexual assault were essentially those of violating another person’s freedom to withhold sexual consent’ (see Who sets the boundaries on sexual behaviour?, by Sara Hinchliffe).

The emphasis placed on the question of consent has blurred the boundaries between rape and sex, with very dangerous consequences. Even if a woman felt that she was made to have sex when she didn’t want to, does this mean that the crime should be classified as a rape, if the man thought she consented? The view that rape is a crime of violence assumes that the unwilling woman will struggle, and the man will use physical force. Setting the Boundaries, on the other hand, implied that it was the responsibility of the man to check that free consent was being given. But what should a man reasonably do to check consent, and how can a court prove that he didn’t check?

It seems unlikely that blurring the distinction between rape and an unpleasant sexual encounter can make prosecuting rape cases easier. Rather, as the ‘one in 20’ headlines indicate, its main consequence is to define more and more aspects of sexual contact as rape – even when the woman concerned does not see it as such.

So the British Crime Survey asked women whether they had been ‘forced…to have sexual intercourse against your will’ since they were 16. ‘Force’ and ‘against your will’, liberally interpreted, could include a whole gamut of incidents – from a woman being persuaded to have sex when she didn’t want to, to being taken advantage of while drunk. As a result, the survey is likely to have counted a much broader range of incidents than would ever have reached a court of law.

Strikingly, only 60 percent of women who the BCS counted as having been raped thought they had been raped. What can be gained from encouraging women to view these experiences as rape?

Employing such a broad definition of rape does nothing to help women who have been brutally assaulted. Rape is a very serious crime, and men who commit it are heavily punished by the law. But can this punishment be used in cases where the woman didn’t think she had been raped – or where the man thought consent had been given?

If we want juries to prove a man’s guilt beyond all reasonable doubt, then acquittal rates for rape are likely to be high. But attempts to increase conviction rates for rape risk eroding the rights of the accused. The government has floated the idea of abolishing double jeopardy in rape cases and further limiting cross-examination of the woman. These changes might make it easier to convict men of rape – but they would also increase the likelihood of wrongful conviction. The defendant, we should remember, is a defendant, not a rapist.

To say that one in 20 women has been raped benefits nobody. The police should concentrate on prosecuting the rape cases that women do report, and the law should reaffirm the distinction between rape and sex.

Read on:

Sex crime and punishment, by Sara Hinchcliffe

Who sets the boundaries on sexual behaviour?, by Sara Hinchcliffe

Raw Deal, by Sandy Starr

In the glare of justice, by Helen Reece

(1) Home Office press release, 23 Jul 2002

(2) Rape and sexual assault of women: the extent and nature of the problem: findings from the British Crime Survey (.pdf), Home Office, 2002, pvii

(3) Home office Action Plan, p5

(4) Rape and sexual assault of women: the extent and nature of the problem: findings from the British Crime Survey (.pdf), Home Office, 2002, p87