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Turning rape trials into kangaroo courts

Defendants in rape cases should not bear the burden of proof.

At the end of last week, the director of public prosecutions (DPP), Alison Saunders, announced a ‘major action plan’ to deal with ‘the issues preventing rape cases from successfully progressing through the criminal-justice system’. The plan emphasises the importance of focusing on the behaviour of the accused rather than the behaviour of the complainant to investigate ‘what steps the accused took to establish whether the complainant was consenting to sex and the extent to which they were capable of consenting’.

Saunders justified the action plan in the following terms: ‘Even though there have been slightly more defendants convicted, the steady increase in conviction rates we have seen in recent years has halted, and this must be addressed immediately.’ She was referring to the fact that the overall conviction rate for rape cases has fallen from 63.2 per cent in 2012-13 to 60.3 per cent in 2013-14. Saunders also restated her commitment to ‘dispelling the myths and stereotypes surrounding these types of cases’ in order to ‘ensure our long-term progress to tackle rape continues’.

The Metropolitan Police were keen to get in on the act as well. Following the publication of the action plan, and a concurrent review by a former lord advocate of Scotland into how sex cases are handled by the police, the Metropolitan Police commissioner, Sir Bernard Hogan-Howe, said ‘for some time my concern has been whether or not the investigators are always as sensitive and empathetic to the victim’s account as they should be’.

Look beyond the rhetoric and this action plan makes little sense. Saunders says she intends to address the issues which ‘prevent cases progressing’, yet there was an eight per cent rise in the volume of police referrals to the Crown Prosecution Service (CPS) for 2013-14, compared with 2012-13. The CPS also charged 700 more defendants over the same period, which is an increase of 25 per cent. So there is no problem with cases ‘progressing’. While she talks about rape ‘myths’ preventing convictions, the 63.2 per cent conviction rate of 2012-13 represented a historic high in rape convictions, following a long-term upward trend. A small drop of three percentage points over the course of a year is hardly cause for panic.

But rather than just being incoherent, this plan is deeply problematic. It is a complete subversion of the principle that defendants are innocent until proven guilty. Both Saunders and Hogan-Howe explicitly said that the point of these reforms was to focus on the steps taken by the defendant to ‘ensure there was consent’. In other words, they are entirely shifting the burden of proof in rape cases; rape defendants should now be presumed guilty until they can prove otherwise. 

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Rape is a serious and awful crime which should be rigorously investigated. But what is being suggested by this new action plan is not conducive to a thorough and objective investigation. Instead, the CPS action plan suggests placing a greater burden on defendants as a substitution for proper investigation. It is a nasty and utterly illiberal shortcut to ‘driving up convictions’, which is itself a debased purpose for an organisation which purports to establish the truth of criminal allegations objectively.

In rape cases, there will very rarely be any evidence, beyond personal testimony, as to what a defendant did to ‘ensure’ there was consent. How many people, men or women, ensure there is some objective evidence of the ‘steps’ they took to ensure consent before having sex? Would anyone have a sex life if they did? The point is that it is supposed to be a fundamental truth of civilised society that no one should have to prove themselves to the police, especially when they are investigating a serious criminal offence. It seems that, with rape cases, we are happy to make an exception to even our most hallowed traditions and freedoms. 

We have seen recently that, in the court of public opinion, those accused of rape are often assumed guilty until they prove themselves innocent. The president of the Oxford Union, Ben Sullivan, who was recently arrested for rape, has been the subject of public opprobrium for daring to resume his post as president following his arrest, as if his crime had already been proved and his sentence already passed. Now, the police and CPS, who are supposed to remain neutral and objective, are happily adopting the same standards as a kangaroo court.

The CPS is trying to eradicate the presumption of innocence in rape cases. The fact that they are using a very small drop in convictions as an excuse to do so shows just how dimly our prosecutors regarded this essential legal right in the first place. When the CPS talk about the need to maintain and increase conviction rates, remember that their job is supposed to be finding the truth, and doing so with objectivity and respect, rather than cynically massaging conviction numbers like salesmen keeping track of their commission.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon.

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