The Trouble with Rape

The statistics are shocking – and getting worse. The truth is that sexual assault in Britain has become a low-risk crime. In 1985 there was a 24 per cent conviction rate in rape trials. By 2003 it had fallen to 5 per cent. Here, in conjunction with Glamour magazine, we launch a campaign to highlight the frightening facts about rape. In this disturbing account of the way victims are treated, Miranda Sawyer argues that the judicial system has to change to protect women.

So says yesterday’s Observer without any apparent trace of irony; which is a little odd when you visit the website of Glamour magazine and notice that aside from the ubiquitous ‘celeb’ cover – Nicole Kidman (‘on body hang-ups, craving intimacy and embarrassing her kids’) – you’re also invited to ‘Future-proof your (sic) SEX LIFE’, read ‘Celebrity Stress Diaries’ and ponder the burning questions of the day like ‘What will you weigh in a year?’ and ‘Can a one-night stand become (sic) The One?’. In other words just your average celebrity-obsessed women’s ‘lifestyle’ magazine whose strapline – “Celebrity chat, Hollywood glitz, beauty news and gossip galore – make this your new best friend” – really says it all.

The trigger for all this is the release of statistics for the offence of rape for 2003 about which as the article helpfully suggests that you should…

…be prepared for some shocking statistics. It’s estimated that in 2003 about 50,000 women were raped in the UK, although just 11,867 went to the police. Of those cases, 1,649 went to trial but, appallingly, only 629 resulted in successful prosecutions. If you reported a rape in 2003 you had a mere 5.3 per cent chance of getting your rapist convicted. Worse, the conviction rate for rape in the UK has been sliding for years. In the 1970s you had a 33 per cent chance of getting a conviction. In 1985 it was 24 per cent. The 2003 figures, the most recent, are the worst ever. The frightening fact is that, in 21st century Britain, rape is a low-risk crime.

…before going on to trot the same old hackneyed analysis we see every year after the publication of the latest crime statistics, the one where women are too stupid to realise they’ve been raped –

The experience of Glamour magazine readers bears this out. Louise was 17 when she was raped by a friendly, good-looking man she met on a girls’ night out in Wales. They chatted in a night club, and when they bumped into each other at the end of the evening he invited her and her mates to a party. Louise’s friends decided to get a cab home, and when Louise got to the ‘party’ she found just the man there. He raped her anally and vaginally, leaving her badly injured. Yet she found it hard to see what had happened to her as rape – ‘I felt I must have done something wrong’ – and didn’t report it to the police until days later.

And all because we have an ‘old-fashioned’ idea of what rape is…

The main problem, say experts, is our old-fashioned idea of what rape is. Professor Liz Kelly, who co-authored the report A Gap Or A Chasm? Attrition In Reported Rape Cases that revealed the low conviction rates, says: ‘Almost everyone still believes a stereotype of what I would call “real rape”: being attacked by a stranger, outside, who uses a weapon, plus the victim resists and reports it immediately to the police. But unfortunately many rapes don’t fall into that category.’ Statistics show most rapists are known to their victim, and can even be a current or ex-boyfriend. Often, they are acquaintances: a workmate or someone met at a club or party.

But because we find it hard to believe that a rapist can appear normal – handsome, even – or can hold down a responsible job, have a girlfriend or a family, we’re reluctant to believe a woman who says she has been raped by anyone other than a monster. Yet the 2005 report admits that ‘rape is a much more frequent and mundane crime than is conventionally believed’

Note the sweeping generalisation ‘Almost everyone still believes a stereotype of what I would call…’

…my pet theory; the one that pays a nice healthy research grant and sets me up as ‘rent-a-quote’ for magazines which would otherwise be stuck for anything to write about now its completely obvious that Angelina’s shagging Brad.

All rather strange as this ‘almost everyone’ doesn’t seem to include anyone I know.

One might also point out that Louise’s reaction, which is quoted specifically to support this persistent ‘real rape’ trope is more readily and realistically accounted for by the trauma of her experience. Its not that she didn’t expect the guy she met in the club to be a rapist so much that she didn’t expect to be raped at all and I doubt very much that before she was raped Louise would have made any particular distinction between the ‘classic’ stalker-in-the-alley type rapist and Mr ‘Having-a-party-at-my-place’ from the club – perhaps the worst you could say of her is that, like most people, she had a tendency to see crime as something that happened to other people and not herself, which is something that ‘almost everyone’ subscribes to before it happens to them, no matter what kind of crime we’re talking about.

Of course this is a launchpad for a general moan of about the legal system and its perceived failings when to comes to dealing with rape, so we’re told that:

Because of our mistaken beliefs about who rapists are, it is very difficult to get juries to convict. ‘When jurors are presented with a clean-cut young man in a nice suit, they can’t connect that with their idea of a rapist, so they believe him rather than the victim,’ says writer and campaigner Julie Bindel. ‘And if the victim was drunk, or dressed provocatively, or has had a healthy sex life, the chances of conviction drop even further.’

And, of course:

The problem is that, if the Crown Prosecution Service doesn’t want to pursue a rape case, there’s nothing practical a victim can do about it, as Jill found. CPS lawyers will take a case to court only if they believe there is a 51 per cent chance of winning.

Prosecution lawyers, too, may have the ‘real rape’ stereotype in their heads. ‘If the victim is a bit rough, was drunk and had a busy sex life, and the alleged rapist has a good job and looks respectable, they’ll say the case hasn’t a chance,’ says Bindel. One CPS lawyer told me of a 16-year-old girl who had agreed to have sex with one man but was then raped by his friends: the CPS didn’t take the case on because ‘she’d had sex with the first one outside. She was the kind of girl who’d have sex in the bushes and that wouldn’t have played well in court’. Which begs the questions: where else can 16-year-olds have sex? And why does having sex once mean you have to have it again when you don’t want to?

Now I’m not going to deny that these kind of things don’t happen – they do and the article is quite right to point out that the Police are sometimes – and some might argue, often – unhelpful and even disinclined to investigate an allegation just as its it’s right to point out that the vast majority of cases are dropped before ever getting anywhere near a court, the statistics alone bear that out.

Where, however, the article gets it wrong, is that for it argues that the legal system is loaded against rape victims it fails to explain the real reason why, preferring instead to meander off into vague allusion of sexism and the male domination of the legal profession in the vain hope that they might something they can do to redress the balance.

And they’re absolutely wrong.

Why the system is loaded against women has nothing really to do with attitudes to rape – these are merely symptoms of a far more deep-seated and near insoluble problem which has to be acknowledged if we’re to make any real progress on this issue as a society. The real reason lies in a combination of the nature of the offence itself, and how it interacts with the fundamental basis of our legal system, the principle that you are innocent until proven guilty ‘beyond reasonable doubt’.

And therein lies the problem.

The majority of rape cases follow pretty much the same pattern: the assailant in known, even if only briefly, to the victim; the rape takes place with no witnesses and the degree to which physical force is used is relatively limited – the may be no actual violence if the threat of violence is sufficient to force the victim into compliance but if there is then forensic evidence left behind is often unrevealing, showing only that sex took place without offering anything that could reasonable distinguish between non-consensual rape and consensual ‘rough sex’.

That’s why the majority of rape cases that are reported never reach court, simply because when whatever evidence there is has been gathered and assessed, prosecutors are left with a case based solely on the victim’s word against that of their alleged assailant, leaving the assailant with a near unshakeable defence that the victim ‘consented’.

Remember in such cases, which make up the majority of those reported to the CPS, the prosecution is being asked to prove, beyond reasonable doubt, that the victim did not consent without any corroborating evidence to back up the story – the very best they could hope for is to put up a convincing character witness or two and hope to sway the jury by proving the victim to be of ‘good character’ but even that is of little or no value if the victim can be shown to have voluntarily placed themselves in the situation in which they were then raped – if she went back to his place then they may have intended to have sex with the guy and that ‘may have’ is sufficient to create reasonable doubt.

That’s also why it impossible to get away from the cross-examination of victims on their personal history background – if a case is predicated solely on the issue of consent then obvious defence in such a case is to try to show that its reasonable to believe that the victim may be the kind of person who would consent, based on their past actions and behaviour, or that its reasonable to believe that extenuating circumstances, such as the amount of alcohol consumed, might lead them to consent to sex even if that was generally out of character.

In such cases, placing restrictions on the right of cross-examination is actually a waste of time – you might get a few more convictions were defence lawyers banned outright from bringing the victims personal history into things, leaving juries to form an impression solely on a value judgement between the two people in front of them, but any such successes would be short-lived as any case which relies on such a judgement without evidence to corroborate the victims claim that she did not consent to having sex would inevitably get thrown out on appeal for lack of supporting evidence. Juries may well be swayed by courtroom oratory and how the victim ‘scrubs up’ in court compared to their alleged assailant; Judges hearing cases on appeal without a jury aren’t – the look at the facts and if the facts don’t support a guilty verdict beyond reasonable doubt then out goes the case, and off the assailant goes having been fully exonerated and with a tidy bit of ‘compo’ in their back pocket for having been ‘wrongfully’ convicted.

In the meantime, the victim is left with nothing, not even the satisfaction that justice in done – if fact they have less than nothing as, in all but the most egregious cases, double jeopardy will mean that assailant cannot be tried against for their attack on the victim.

While it is the case that, as the article suggests, specialist rape centres and, in particular, special prosecutors can make a modest difference to conviction rates in rape trials the reality is that any such gains are going to be modest – a drop in the ocean given the estimated size of the problem at present.

I hate to be pessimistic but campaigns such as this one invariably offer little more than a series of false hopes. While we should certainly be funding specialist rape centres properly, making full use of special prosecutors who can really make the most of what little forensic evidence they usually is in these cases, and while we should do something to try to limit the trauma of cross-examination – personally I’d like to see the victims in rape cases permitted their own advocate and not just have to rely on the prosecutor, who’s mind will invariably be on matters other than the how the victim feels – it has to be realised that there are serious limitations on how effective suhc measures can or will ever be.

We have be realistic here and understand that nothing short of a reversal of the single most fundamental principle of the British system of justice, that you are innocent until proven guilty, will tip the balance in favour of the victim in rape cases and that is something I doubt any of us would willingly accept.

Tackling rape effectively means far more than simply tinkering with the legal system to get a few more convictions along the way – as Antonia Bance points out (see her post of 12/08/2005 ‘Women Can’t Stop Rape – sorry, for some reason I can’t link to it) in covering pretty much all the ground that Miranda Sawyer covers but with far more common sense and realism than anything that Glamour Magazine seem capable of offering. If only she were writing for this camapaign then maybe we might actually get somewhere.

  • Just 5% of rapists in 2003 were caught and convicted
    Talk Politics
    It’s estimated that in 2003 about 50,000 women were raped in the UK, although just 11,867 went to the police. Of those cases, 1,649 went to trial but, appallingly, only 629 resulted in successful prosecutions. If you reported a ra…

  • Hello Unity,

    The link to my post is
    http://www.antoniabance.org.uk/2005/08/12/women-cant-stop-rape/

    Thanks.

  • Unity

    I got the link Antonia but for reasons known only to the software it refuses to allow me to insert it (???) – I’ve had this before with blogger sites, usually when trying to link to stuff posted by Bob Piper.

  • Katherine

    ‘The kind of person who would consent’? And yet somehow any previous convictions of alleged rapists aren’t allowed before the jury, on the basis that that might lead to a prejudicial on whether they are ‘the kind of person who would rape’. So the past of one person is looked at in minute detail, but not the past of the other.

    And I suspect that the corroboration of Glamour magazine was to try to get the article and the issues raised in it diseminated to a wider audience. Unless you are arguing that Glamour magazine somehow contributes to the number of incidents of rape there are no grounds for such sneering.

  • Unity

    When faced with a women’s magazine which plans to run a campaign about rape while publishing articles which pose questions like “Can a one-night stand become The One?” then a degree of cynicism in not only merited but an absolute necessity.

    Talk about sending out mixed messages here – your eyes meet across a crowded room and you never know, he could turn out to be the love of your life…

    …or just a serial rapist.

    Still, never mind, if it gets a little bit too taxing for their readers then they can always turn the page and get back to the serious business of obsessing over whether Catherine Zeta Jones’ tits have started to sag since she had her last kiddie.

  • With all statistical judgements, there needs to be a qualification about sample size, amongst other things. I’ve struggled to find figures going back that far, but I’d lay a substantial sum that there were far fewer rapes reported twenty years ago than there are today. That’s for a wide range of reasons – women may have felt ashamed to report it, they may have felt the police wouldn’t take it seriously (anyone else remember the programme ‘Police’ which changed the way the service handled victims by showing the reality of what a young woman went through when she reported an offence?), or some offences may not have been regarded as a ‘proper’ rape (stranger with a knife as opposed to husband/boyfriend/one night stand) by the police, so not recorded as such. I’d also add that recording standards change over time for a variety of reasons, so direct comparison of raw data is often spurious and should be treated with great suspicion.

    For a variety of reasons, I think that there is a greater determination amongst women to report rape.

    Unity does highlight the key problem with the offence, though. Home Office figures suggest that only 8% of sexual offences are committed by strangers, so the odds are that most of the remaining 92% are going to be committed in a one-to-one environment where the only question for the jury to decide is ‘did she consent?’ (I’ll also note that although the legal definition of rape can now include men as victims, I’m referring to women throughout).

    I’ve served on a jury, although not for anything this serious, and we were thoroughly reminded by the judges on each occasion that we left to deliberate of how sure we had to be about the person’s guilt before bringing in that verdict, so you can imagine the dilemma that faces the jury in deciding the issue of consent. When that issue is all that separates a man from ten years in jail and a lifetime’s approbation, I’m not surprised that juries don’t bring in guilty verdicts. It will always come to down to who is the more convincing witness on the day and remember that the balance remains with the prosecution – they have to prove that intercourse was non-consensual.

    What do you do?

    Reversing or lightening the burden of proof (perhaps to balance of probabilities) is unpalatable – why should it be easier to prove rape than murder or burglary? It goes against natural justice, which has to serve everybody, not just a number of cases where the victim was let down. Personalising the issue makes for dramatic articles, but you have to remember that changing the law affects everybody, including the innocent man facing charges. Do we want to see the innocent in jail beside more of the guilty?

    I don’t have an answer, I’m afraid, but perhaps their is hope in educating young people in respect for each other.