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Systemic Failings Mean Most Rapists Can Attack Women with Impunity
The dropped charges against the Conservative MP accused of rape reveal shortcomings which mean rape survivors rarely see justice done in England and Wales, reports Sian Norris
News of the dropped rape charges against a Conservative MP this weekend is just one high-profile example of the barriers survivors of sexual assault face in getting justice. And it’s a problem that is getting worse. The case exposes wider systemic failings that go far beyond Westminster and party politics.
Following the MP’s arrest in August, the Metropolitan Police has decided that the case against him has not met the “evidential test” to prosecute. This is a common situation for women accusing men of rape in England and Wales today.
According to official figures published in July, rape victims had a one in 70 chance of seeing their alleged attacker charged. Rape prosecutions are also at an historic low, in what women’s organisations are calling “the decriminalisation of rape” in the UK.
There are on average 100,000 rapes in England and Wales every year. Approximately 85,000 victims are women and 12,000 are men. Of these, 55,259 were recorded by the police in 2019 – leading to 1,659 prosecutions and 702 convictions. While the number of reports are rising, the number of cases which go on to be charged – and brought before a court – by the Crown Prosecution Service (CPS) has significantly decreased.
Earlier this year, a coalition of women’s organisations consisting of the End Violence Against Women Coalition (EVAW), Imkaan, Rape Crisis England and Wales, and The Centre for Women’s Justice launched a strategic legal challenge against the CPS to find out why so few rape victims are seeing their cases prosecuted. An application for a judicial review failed, but the dossier of evidence they gathered makes for horrific reading about the barriers women face to access justice.
The dossier includes examples of real-life cases in which, like in the Conservative MP rape allegation, victims were found not to meet the evidential threshold.
They include ‘Anna’, who reported to the police that she had been raped three times, including once at knife point, over a four-day period by a man she previously had a consensual relationship with. She told a friend about the attacks and her attacker was charged. The case against him was then dropped, with the Senior Crown Prosecutor telling her that, having reviewed the evidence, “there was not enough to have a realistic prospect of conviction”.
Then there was ‘Gina’, whose alleged rape was filmed by a man other than her attacker. Following the incident, she underwent a full medical examination and the police analysed her phone as well as the phone of the two suspects. The CPS declined to prosecute, citing “insufficient evidence”. She was told that her evidence was undermined by the fact that she was intoxicated and could not remember being driven to the property where the alleged rape took place.
‘Marie’ was raped by her ex-partner during an abusive relationship that began in her teens. When she reported him to the police, the CPS chose not to prosecute. They explained that it wasn’t because they didn’t believe her, but that cases like hers had “evidential difficulties”. These difficulties include the gap between the attacks and its reporting to the police, and the fact that she had exchanged friendly messages with her partner after the rape while still in a relationship with him.
‘Zoe’ was raped at gunpoint, but was told that while it “was clear [she] had not consented, it was not clear whether her attacker would have been reasonably aware of that”. The case against him was dropped.
‘Charlotte’ was told that her WhatsApp messages which included “reference to the suspect behaving dominantly towards you” undermined her claim that her alleged attacker raped her. The case was dropped, ignoring how it is possible to flirt in a text message, express sexual preferences in a text message, and still be raped.
All of these examples point to an almost impossibly high threshold that rape victims must meet: they must have perfect recollection of the alleged assault and report it immediately; they must not have been drinking; they must not have had consensual sex with their attacker at any point before the assault; they must not have exchanged friendly or sexual messages. The list goes on.
Impunity
This is not a new problem, but it is one which is getting worse.
Back in 2010, Baroness Vivien Stern raised how challenging it can be for women to access justice following a rape, explaining that there is “a long history of disbelief, disrespect, blaming the victim, not seeing rape as a serious violation, and therefore deciding not to record it as a crime”.
The public outcry that followed the Jimmy Savile revelations and the Rochdale crimes led to a hope that the barriers facing women would start to fall. The then Director for Public Prosecutions, the current Labour Party Leader Keir Starmer, implemented policy reforms and new guidance in response to these two scandals, including to ensure that concerns about how victims would be perceived by a jury would not prevent necessary prosecutions. This was followed in 2014 by a recommendation from Her Majesty’s Inspectorate of Constabulary that “the presumption that the victim should always be believed should be institutionalised”.
However, an independent review by retired High Court judge Sir Richard Henriques into cases in which high-profile men were accused and cleared of historic sexual offences undermined this new commitment. Henriques recommended police forces abandon the presumption of belief and abolish the use of the term ‘victim’ when dealing with sexual offence complaints.
EVAW, Imkaan and Rape Crisis England and Wales believe that Henriques’ review has “already had a damaging impact on the culture within the police and may explain in part why the rate of referrals by the police in the context of rape and serious sexual offence cases is continuing to decline”.
Another factor has been the increased reliance on the “digital strip search” which ‘Charlotte’ was subjected to. The policy was recently scrapped, having been introduced following the collapse of three high-profile rape cases after phone data from the alleged victims was revealed. However women’s groups were concerned that the “pendulum has swung in the reverse direction” and led to the normalisation of invasive inquiries.
Other factors contributing to the collapse in prosecutions include austerity and accusations that the CPS has moved to a ‘risk-averse’ model for rape. In 2018, the Guardian reported that prosecutors were “urged” to ditch weak cases to improve their figures.
EVAW, Imkaan and Rape Crisis England and Wales also report that “the cultural impact of the Henriques report… may explain in part why police and prosecutors now feel under increased pressure to search for evidence capable of undermining a victim/survivor’s credibility”.
This is the context in which the rape allegation against the Conservative MP has been dropped. Of course, we don’t know what evidence was provided in this case or how it failed to meet the threshold. But, since the Metropolitan Police announced that it would not be pursuing prosecution, many members of the public have argued on Twitter that it was dropped because of his status as an MP. The depressing fact is this is no great conspiracy – it is the norm when it comes to prosecuting alleged violence against women and girls.
In the current climate, the vast majority of rape allegations will never be prosecuted. The vast majority of rape victims will never see justice. And the vast majority of rapists will attack women with impunity.