So we are weak on rape? Think again

By Camilla Cavendish (THE TIMES, 01/02/07):

Rape is not something that any of us likes to think about. It is a vile crime. But this week’s headlines have been hard to ignore. They tell us that only 1 in 20 rape victims will see their attacker convicted. That 30 years ago it was 1 in 3. That the number of reported rapes has soared, from 5,136 in 1995 to 14,002 in 2005. That we are living in a world in which huge numbers of evil men get away with violating women because the police are useless and juries think that women are “asking for it” by wearing short skirts.

But it is not so simple. I first started looking at this issue because something jarred with me. The figures were shocking, and getting worse despite a decade of effort by police and prosecutors. And the Government was using them to justify a steady dismantling of defendants’ freedoms.

The first thing I found was that the “conviction rate” of one in twenty, the rate cited by every authority on the issue, is not the conviction rate at all. It is the number of convictions secured out of the total allegations made, not the number of convictions secured out of the cases tried. I can think of no other crime where conviction is so routinely confused with attrition. The attrition rate in rape cases is very high: only about 12 per cent of allegations reach court. The true conviction rate in rape cases is closer to 50 per cent than 5 per cent. That does not suggest that juries are weak: quite the opposite.

The next thing I found was that more people are being found guilty of rape: up from 655 in 2002 to 728 in 2005. Conviction rates are falling only because allegations have jumped by 40 per cent in that period.

What explains this staggering increase in allegations? Women seem more willing to report, now that many police forces have become more sensitive. Much good work has been done, with purpose-built sexual assault referral centres, the option of prerecording testimony and the end of cross-examination by the defendant. But there are two other factors. The Sexual Offences Act 2003 changed the definiton of rape to include oral sex, something that the Criminal Bar Association says has greatly boosted allegations. And the culture of binge drinking has blurred boundaries. More than four out of five rape allegations are made against friends or acquaintances; more than half of those are fuelled by alcohol and/or drugs.

Two years ago a judge threw out the case of a woman who admitted that she had been too drunk to remember whether she had consented to sex or not. She then claimed that her consent would have been meaningless anyway, because she was so inebriated. This case created waves of outrage among victim groups. But instead of treating it as a watershed, one that demonstrated the law could go no further, the Government ran scared. It had already redefined consent, to mean agreement rather than the absence of a refusal. Now it wants to ensure that no agreement can be taken as consent if it is given under the influence of alcohol. In our zeal to protect women, are we going to legislate so that a drunken man is accountable for his deeds, but a drunken woman is not? Why do we encourage women to see themselves as victims? This week I met a mother whose teenage daughter and friend had gone out on the razzle. The friend went to bed with a man and the next day was full of regret. She called: would her friend go with her to the police? The mother was horrified. “They were drinking to lower their sexual inhibitions,” she said. “The girls have to take responsibility too, for abdicating their responsibility to stay sober.” The girl was genuinely distressed. But the mother had a point.

I do not wish to trivialise acquaintance rape. There is no doubt that it can be just as traumatic as stranger rape, the cold-blooded and cold-sober attack that many people imagine, but which accounts for relatively few cases. But there is a good reason why acquaintance rapes are much harder to prosecute. With no witnesses and no circumstantial evidence, only one person’s word against another, the law must navigate tricky territory. Juries are the best people to do so — and they do convict, contrary to what we keep being told. The Government’s new definition of consent would skew the law out of their hands; and that would be quite wrong.

It is important to ask why so few of these cases come to court. Yesterday’s report by the Inspectorate of Constabulary and the Crown Prosecution Service Inspectorate makes clear that there are still huge variations in the way that different police forces deal with rape. And some women are still having to endure outrageously long delays and incompetent legal and medical advice. The report shows that more can be done with forensic doctors and specialist prosecutors. But it also states that no new policies are needed.

I wonder whether the unquestionable horror of rape has simply clouded people’s minds. In rape cases a dramatic growth in allegations, of which very few lead to convictions, is taken as proof that justice system has failed. In cases of alleged teacher assault, it is taken as proof of the opposite. There has been an enormous growth in allegations made against teachers, and fewer than 1 in 200 lead to a conviction. Yet the consensus is that most of those allegations are groundless.

I am the last person to claim that all men are blameless victims of predatory women. I have no doubt that some are still getting away with horrendous crimes. I merely ask that we go back to the data before rushing to dismantle defendants’ rights further. And that we stop portraying juries as weak when they seem to be precisely the opposite.