A dangerous obsession with rape convictions
Despite what two of the UK's leading prosecutors think, in rape trials defendants have rights, too.
Asha R Shah
In an interview with the Bureau of Investigative Journalism and the Independent, Alison Saunders, the UK’s Director of Public Prosecutions, and Martin Hewitt, the Association of Chief Police Offices (ACPO) lead for adult sexual offences, called for judges to issue warnings to juries at the start of rape trials about succumbing to ‘rape myths’, such as ‘she was asking for it’ or ‘she was drunk’. This was not a surprising move: Saunders and Hewitt are jointly leading a task force looking into how to increase the level of rape convictions.
In many ways, Saunders is following in the footsteps of her predecessor as DPP, Kier Starmer. Starmer often bemoaned the lack of convictions for rape, and even introduced reform targeted at making trials more victim-centred.
So, is there a problem with rape convictions? Figures from the Office for National Statistics released in January 2013 covered cases from 2009 onwards. In Crown Court rape trials, 62 per cent of defendants were acquitted completely; 27 per cent were convicted of rape; and the remainder were convicted of a lesser offence. The total conviction rate, which includes those who pleaded guilty, was 49 per cent. This is certainly lower than for other serious crimes, for which the total conviction rate is 82 per cent. But that is hardly surprising when you consider that there is far less likely to be strong evidence in a rape case than there is in a case involving other kinds of serious crime. In rape cases, it often rests on one person’s word against another’s.
So there is no real reason to say that conviction rates for rape are unusually low. However, Saunders and Hewitt believe that the current practice of a judge issuing detailed warnings about assessing the evidence during the trial at the end of a case isn’t good enough. Saunders and Hewitt assume that, by that point, jury members will have already made their judgement based on the evidence before them. Obviously, for Saunders, jury members are so immersed in so-called rape myths that they are incapable of sitting and making sound judgements without a stern judicial warning at the outset.
It is often said that rape myths, and popular misconceptions about rape, lead juries incorrectly to decide that rape hasn’t occurred and wrongly to acquit defendants. Such misconceptions include the idea that a complainant could not have been raped when drunk, or if they have a promiscuous sexual history or have previously had consensual sex with the defendant. But whether the public do harbour such preconceptions is the subject of ongoing academic debate. Saunders is actually just asserting that ‘rape myths’ are having an impact on jury decisions on the basis of little more than sketchy, highly contested evidence.
But this depiction of juries as a bunch of prejudiced and unlearned plebs undermines the jury system, and erodes people’s confidence in its efficacy. Ironically, this attack on juries on the basis that too many are in thrall to rape myths comes at a time when society is, in reality, becoming much more progressive in its attitude towards the position of women and sexual violence.
More importantly, there is a risk that including a warning at the start of a rape trial may encourage judges to pre-empt fundamental parts of a defendant’s case: for instance, that the defendant and complainant had been drinking together. Like it or not, a defence case in a rape trial often involves the fact that both parties had their inhibitions lowered through drink. Moreover, it is a legitimate argument to put before the jury. So for the judge to tell the jury at the outset that they should dismiss such factors effectively means that a judge is dismissing the defence case itself as a ‘myth’. This marks a significant change in criminal-justice procedure at the expense of traditional defence rights.
The flippant disregard for defendants’ rights in rape trials is inadvertently revealed by Hewitt. ‘There are too many examples where the trial process is very negative for the victim’, he said. ‘That has an impact not only on the victim but also on the success of the case.’
It doesn’t exactly bode well for defendants when two of the most influential individuals in England and Wales’ Criminal Justice System equate ‘success’ in rape trials with a guilty verdict. Two of our leading prosecutors appear to have forgotten that a criminal trial can only truly be judged a success when not only are the guilty convicted, but the innocent are acquitted.
Asha R Shah is a writer and paralegal working in financial regulation.