Rape convictions in the UK are disappointingly low: a Crown Prosecution Service (CPS) report states that in 2017 there were 48,773 incidents of police-recorded rape, of which only 6,611 (around 13%) were referred to the CPS. Out of these 6,611 suspects, just over 50% were charged.
It is a well-known problem that the way in which the crime of rape is handled within criminal law can in fact hinder the ability of rapists to be charged.
For example, a successful conviction within criminal law requires there to be proof beyond reasonable doubt. But rape is often hard to ‘prove’ given that the evidence (assuming there is any) is predominantly presented on the body. Not only does this give it a short shelf life, particularly unhelpful when victims report the crime long after its occurrence, but the means of collecting the evidence, such as rape kits and photographic evidence, can be an invasive and uncomfortable process that adds to the discomfort and trauma survivors may already be experiencing. Not to mention that specific perceptions of sexual assault can result in survivors feeling as if their experiences are not ‘severe’ enough.
Prevailing rape myths: that the victim’s behaviour, dress or consumption of influential substances contribute to their assault, that they always object, vocally and/or physically, that the majority of assaults are between strangers and that victims will always be visibly traumatised, contribute to the UK’s problem with underreporting. These myths and attitudes are reproduced and reflected in all structures; from healthcare, to police reporting to the institution of criminal law.
The problem with victim declarations
In cases where there is no evidence or witnesses available, the key proof then becomes the victim’s declaration; yet this often results in the re-traumatisation of survivors when their testimony is questioned over and over and they are required to provide a clear and identical summary each time.
Cross-examination often deliberately undermines the survivor’s credibility and reliability, potentially recreating the ‘powerlessness and terror of the original assault’, a process known as secondary victimisation or secondary rape. In fact, psychological studies indicate that a common side effect of PTSD is memory distortion, where survivors can suddenly recount or forget details each time they recall their experience. An additional common symptom is the inability to remember distinctive features, such as the build or voice of the rapist, but have a crystal-clear memory of the colour of the walls. Consequentially, inconsistencies are common, often inevitable.
Yet rather than being treated with respect and understanding, a survivor’s own trauma is used against them to ensure their rapist walks free.
There must be an urgent reconsideration of the treatment of sexual assault survivors, a move which has already been put into motion by the CPS with its publishing of guidelines of the re-traumatisation risk to survivors. However, it is imperative that such guidelines are considered as the start of an important conversation, rather than the end of one.
Finally, the thorn in the side of rape cases: false allegations. It is a common misconception that rape allegations – particularly against male celebrities – are maliciously fabricated for extortion, revenge or libel/slander purposes. This is quite simply false: The Ministry of Justice analysed 1,149 cases and concluded that 3% of those were untrue or malicious.
Whilst false allegations are a serious issue and have the capacity to destroy lives, the gross exaggeration of their prevalence contributes to the generally dismissive attitude towards rape allegations that discourages so many survivors from reporting in the first place. It could even impact the neutrality of a jury: Julie Bindel, co-founder of the group Justice for Women (a law-reform group that aid women prosecuted for killing abusive male partners), argues that rape myths are so pervasive they unconsciously bias jurors, particularly due to the media’s penchant for over-exposing false allegations or collapsed cases.
This is not to suggest that the premise of innocent until proven guilty within criminal law is incorrect or requiring change; on the contrary, the rule of law would be unsustainable and ripe for corruption were this not the case. However, if the fundamentals of how survivors are treated were significantly altered, particularly during cross-examination, we may see a correlation in increased successful convictions.
A delicate balance
To conclude, there is a clear tension on how criminal law must balance believing the victim whilst also adhering to the presumption of innocence. As I have no experience of law and criminal trials, I do not feel qualified to propose an alternative, or revision to rape convictions, other than to argue that perhaps there is an urgent need for one.
Try as I might, I cannot think of a feasible and sustainable alternative to prosecuting sexual assault, and it is important to recognise rape prosecutions are fairly new to criminal law, and so lack a wealth of precedence or expertise. However, the upside of this is that there is a space for new and flexible approaches to crimes of sexual assault, especially for more modern crimes such as the disturbing rise of stealthing.
Finally, and perhaps most urgently, individuals, society, authorities and the media need to believe those who come forward with the same dedication and rigour that is afforded to innocent until proven otherwise. It is a duty to simply believe those who come forward with allegations unless something questionable surfaces; it is a duty to challenge pervasive attitudes that directly contribute to the mistreatment of sexual assault survivors. And change, as it so often must, begins with the individual.
Monika Radojevic is studying MSc Development Studies at SOAS University of London.
*This piece was written with the help of Beatriz Abellan, a SOAS postgrad reading for her LLM in Human Rights. Thank you, Bea, for your generosity and contribution.