Call for a change in language over how ‘victims’ of rape are categorised
POLICE should refer to people who report rape as “complainants” rather than “victims”, senior legal figures said last night, amid warnings that the terminology is undermining impartiality and leading to miscarriages of justice.
MPS and members of the judiciary have also called for an overhaul of the current guidelines which demand that officers automatically believe complainants from the outset. Scotland Yard has ordered an urgent review of scores of sex abuse cases, including 30 that are about to go to trial, after it emerged that crucial material had been withheld from defence lawyers.
Two rape cases collapsed in the past week, because a detective constable in the Met’s Child Abuse and Sexual Offences unit failed to disclose text messages undermining the complainants’ stories. It raises concerns that dozens more cases could be thrown out by the courts and of mass appeals from convicted rapists.
While the officer involved, DC Mark Azariah, has been removed from active duties, lawyers said the problem was not down to one rogue officer, but systemic problems caused by the current approach to sex abuse cases.
Following a report by Sir Richard Henriques, a retired High Court judge, police were told last year to consider dropping the term “victim” and the “automatic belief” policy amid concern it was clouding their impartiality during the investigation process. Last night the College of Policing said it was reviewing the proposal.
Writing in today’s Daily Telegraph, Nick Timothy, Theresa May’s former policy chief, said police officers were “mistaken” if they thought they had to slavishly believe all complainants.
He writes: “They must undertake a thorough investigation of the facts before a decision is taken to charge and prosecute.”
Former attorney general Dominic Grieve said he had never been happy about using the term “victim”.
In 1980, one in three reported rapes ended in a conviction. Today, it is around one in 20. Only about half get past the initial police investigation stage and a quarter end with the conclusion no crime has taken place. On the face of it that suggests something has gone terribly wrong with the criminal justice system; and after the collapse of two rape trials in less than a week the spotlight once again is on how the police and prosecutors handle this most sensitive and difficult of crimes.
But the statistics don’t tell the full story. The reason the conviction rate was so much higher in 1980 was because there were significantly fewer complainants. Cases that came to court tended to be strangers raping women, often on the street at night. Today, the complainant and the alleged perpetrator are more likely to be
‘People will ask whether police and the CPS are simply trying to make their job less difficult by suppressing evidence’
known to one another.
This does not mean that in the past women were not raped by people known to them. They were, but few came forward to make the complaint. The societal norms of the time were stacked against them. The riposte “she was asking for it” either because of the way she was dressed or had behaved would have swayed the police long before the case ever got near a court.
When cases are brought to trial, the rate of conviction is about 58 per cent. This is far lower than it is for the average of all offences – 83 per cent – and indicates that juries are throwing out more than a third of all cases brought before them, principally because rape is hard to prove.
It is often a complainant’s word against the alleged perpetrator, who is likely to insist that consent was given. In English law, someone is innocent until proven guilty; but the lack of corroborating evidence makes that burden of proof difficult, if not impossible. One of the issues that came out in the collapse of the rape trial of Liam Allan last week was that information pointing to his innocence
did exist but was not disclosed by the police to the defence.
Had it not been for a diligent prosecution barrister, Mr Allan might by now be behind bars. Or he could well have convinced the jury of his innocence without the disclosure of emails and texts sent by the complainant. After all, it is still a requirement on the prosecution to demonstrate guilt “beyond reasonable doubt”. But because campaigners have condemned the low rate of prosecutions versus complaints, the law is increasingly being weighted against defendants in rape cases.
Under Crown Prosecution Service (CPS) guidance men need to convince police and prosecutors that a woman consented to sex in order to avoid arrest and possible charges. This reverses the burden of proof at this stage of proceedings, though in court the prosecution must follow due process and prove consent was absent.
This is why the Allan case is so troubling: people will ask whether the police and the CPS are trying to make their job less difficult simply by suppressing the evidence that does not support their case. The implications for miscarriages of justice are obvious.
Police say they are responding to recent legislation intended to clarify and update the law of rape to take account of modern mores. Not until 1991 was rape in marriage a criminal offence because consent was assumed between husband and wife.
There has also been an explosion in the number of women prepared to say they were raped on a date by the person they were out with.
These are the sort of cases that juries find hardest to try yet which are more prevalent than ever. Most cases centre on arguments about consent but this did not even have a legal definition until the Sexual Offences Act 2003, under which a person consents to sexual activity, ‘if he agrees by choice, and has the freedom and capacity to make that choice’. Further changes in 2002 required a defendant to show that he took reasonable steps to establish that consent was present and not just that he honestly believed it was, as used to be the case. Even so, people are still unsure what is considered consent and what isn’t. Even with a statutory definition many jurors clearly impose their own. The law has sought to
reflect a change in attitudes that may not actually have occurred, or at least not to the extent that campaigners and lawmakers think it should have.
The CPS can only recommend cases for trial if the chance of conviction is judged 50 per cent – or usually higher. And when so many date rape cases are thrown out it is perhaps unsurprising that only a small proportion ever make it to the prosecution stage. Even the ones that do pass this prosecutorial test have been found wanting in court, with a number of high-profile acquittals of young men who have often been waiting for a year or even two for a trial. The impact on their lives is traumatic. Campaigners say that is also true for the complainant, who feels she has not only been sexually assaulted but then let down by the system.
But can this be addressed without merely compounding one injustice with another? In 2002, the Home Office considered, and rejected, a separate offence of acquaintance rape, or non-consensual sexual intercourse, for fear of diminishing the seriousness of the crime. Even to suggest it is to invite opprobrium from campaigners. When he was justice secretary in 2011, Kenneth Clarke found himself in hot water for suggesting a distinction between “serious rape” and date rape. Yet the collapse of so many cases suggests that view may be widespread.
Moreover, the police are now required to believe every alleged victim and investigate while under massive pressure to bring charges. Are corners being cut? Successive chief prosecutors and senior police officers, as well as ministers, have helped create these circumstances by demanding more convictions without paying proper regard either to public opinion or to due process. This has brought the judiciary and the prosecutors into conflict. Retiring judge Lindsey Kushner was denounced at the end of a trial in Manchester after she told women they were at greater risk of being raped if they got drunk.
In March, Judge Philip Shorrock wrote to this newspaper saying most trials led to the alleged rapist being “unsurprisingly” acquitted because both parties had been drinking or taking drugs, and there was no independent proof of rape. This provoked a riposte from Alison Saunders, the Director of Public Prosecutions, who said: “It is our job, as prosecutors, to make objective charging decisions based on the evidence, rather than the discredited rape myths that skewed the system against victims.”
After the fiascos of the past week, however, many are questioning whether the system is actually skewed against the defendants.
‘Police are now required to believe every alleged victim ... while under massive pressure to bring charges’