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The Way We Prosecute Rape Is Changing. Is This For The Better?

We need to put measures in place which encourage women to report, take survivors' needs into account, and offer them hope of fairness and justice. Centring the crime and not the complainant in a rape trial moves to address this, and sets us on the right path.

Each year an estimated 85,000 women are raped in England and Wales, yet in 2015-16 there were just 2,689 convictions for rape. This represents 3.2% of estimated total rapes. Many women do not report sexual assault for a variety of very understandable reasons, but, importantly, there are also problems in the way we prosecute rape. Last year, just 39% of rape cases referred to the Crown Prosecution Service (CPS) resulted in conviction (by way of rough comparison, the conviction rate hate crimes last year was 83.2%). In short: it is highly unlikely that a rapist will face prosecution or that he (and legally it always is 'he') will even come into contact with the criminal justice.

Rape survivors are often well aware that going to the police is unlikely to result in conviction. This knowledge, combined with the possibility of invasive medical examinations, cross-questioning, and continued social stigma around rape mean that the vast majority of rapes are not even reported. Most survivors bear the burden of the crime committed against them in silence, suffering traumatic mental and physical consequences.

The Director of Public Prosecutions, Alison Saunders, recognises this issue. In a 2015 speech given at the first National Rape Conference, Saunders clarified the importance of consent. New toolkits for police and prosecutors outlined situations where a victim may not be able to consent, or where consent cannot reasonably be considered to be given. Further, the CPS moved towards a model of affirmative consent: new guidelines on rape prosecution charged suspects with demonstrating how a complainant (who statistically will most likely be a woman) had consented with full capacity and freedom to do so.

New guidelines

The DPP has now gone a step further. Updated guidelines on prosecuting rape were recently announced, with the intention of addressing some of the biggest issues that stop women seeing justice. These issues are, namely, factors that affect the perceived credibility of a rape survivor's testimony to a jury. The CPS now will pay closer attention to men who ply their victims with drink or drugs, or who single out drunk women. This requires all available and relevant evidence from before the rape itself to be presented to jurors (including CCTV, social media, and testimony from witnesses), to allow them to build up a fuller picture of the crime.

These guidelines represent a positive shift. Rape trials are made fairer by moving away from focusing solely on the moments during which a rape is committed as in such cases, the issue of consent often becomes one of two irreconcilable narratives. Seeing the broader picture allows for critical information to be included, particularly in cases of drink, drugs, or coercion.

Sexual history

Saunders' latest announcement also opens up the possibility that men's sexual histories could come under scrutiny in rape trials, an area of controversy as it involves something that women have wrongly been subjected to for years.

Section 41 of the Youth Justice and Criminal Evidence Act 1999 protects complainants in proceedings involving sexual offences by restricting evidence or questions about their previous history, subject to exceptions. This is because being forced to answer questions about previous sexual partners and preferences can have traumatic consequences for a complainant and is often entirely irrelevant.

In spite of this, rape survivors' sexual histories have been part of a rape trials in a surprising number of cases. A report by Rape Crisis Scotland found that the response to an allegation of rape is invariably "that the woman consented to sex, and cross-examination by the defence frequently delves into the woman's sexual past in order to investigate whether or not she is the kind of woman who would be likely to consent to sex." According to figures collected by Vera Baird, former Solicitor General and now Northumbria Police and Crime Commissioner, a woman's sexual history was admitted as evidence in 11 out of 30 rape cases in Northumbria between January 2015 to June 2016. Similarly, a recent Irish Times report showed that around 30% of rape trials in Ireland question the complainant's sexual past, and the retrial of Ched Evans in 2016 proved a high profile example of this practice in the UK.

If using a complainant's sexual history is wrong, why is the DPP condoning it in the case of defendants? This requires a broader understanding women's sexuality in society. Women have historically been expected to be paragons of purity and virginity. Insults applied to women such as 'slut', 'whore', and 'slag' deliberately demonise female sexuality; women who enjoy sex or have active sex lives are defiant of patriarchal norms. Thus, the defence in rape cases often resort to portraying a woman as sexually promiscuous: consent must have been given if a woman is shown to regularly enjoy sex, as such a person must always be 'up for it'. This diminishment of her character in the eyes of a jury casts doubt on the credibility of her testimony.

Such treatment in a court of law is demeaning, to say the least. Conditioning women throughout their lives to believe that they should be ashamed of sex, and then asking them to recount intimate details to a courtroom, can greatly increase a complainant's feelings of vulnerability, victimisation, and anxiety. Women have even run from the courtroom in the face of such questioning, so great is their distress.

Whereas a woman's sexual history is often irrelevant to the issue of consent, the same cannot always be said for predatory men. A history of coercive relationships, or of sexually aggressive behaviour can, and should, be brought to bear on a trial. It is important to know, when assessing the conflicting narratives of complainant and defendant, whether a complainant could be in a sexually abusive relationship, or if a defendant exhibits sexually controlling behaviour. As Saunders' 2015 guidelines established, the onus must be on a defendant to prove that consent was freely (and enthusiastically) given; a woman's sexual character is irrelevant to the establishment of consent, but a history of coercion or assault is not.

Scope of these guidelines

These changes to rape prosecution are positive, but are not without concern. One problem with the possibility of including a defendant's sexual history at trial is that it risks legitimising the use of complainants' sexual histories. The consequences of this are severe; there are enough barriers to speaking out about rape without putting women 'on trial' for their previous behaviour. The DPP's guidelines could further discourage survivors from reporting.

Courts must ensure that the use of sexual histories in rape cases is fair and strictly necessary. Saunders' previous steps indicate that she will continue to act in the interests of the brave women who report rape and see their case go to trial. Indeed, action is already being taken to continue to make rape prosecution fairer: in the wake of Ched Evans' retrial, Section 41 of the Youth Justice and Criminal Evidence Act 1999 came under review. Harriet Harman MP is pursuing a legislative amendment which would see a complainant's sexual history inadmissible in rape trials unless it is against the interests of justice not to admit it.

We need to put measures in place which encourage women to report, take survivors' needs into account, and offer them hope of fairness and justice. Centring the crime and not the complainant in a rape trial moves to address this, and sets us on the right path.

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