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For those of us employed in the criminal justice system the assertion by Elon Musk that there has been a “rape genocide” in the UK and that the Prime Minister, Keir Starmer, who held the officer of Director of Public Prosecutions (DPP) between 2008 and 2013 is “complicit”, evoked feelings ranging from bewilderment to rage.
During my career at the Criminal Bar, which has spanned a quarter of a century, I have watched as successive governments and every DPP has agonised over the unique challenge of ensuring that sexual offences are investigated meticulously, prosecuted effectively and tried fairly.
The challenge is a profoundly complicated one because sexual offences are, by definition difficult to investigate, prosecute and try.
Sex offences committed against adults often take place within the parameters of a relationship and the distinction between a complainant who has consented to a particular sexual act, and a victim who has been groomed or coerced to ‘give in’, is not always clear.
Evidentially, allegations often involve drink or drugs and drunk witnesses who are not sure about certain parts of an incident; sometimes the allegation is accompanied by thousands of pages of telephone evidence which can take months to sift through or complicated DNA evidence, but, just as often the evidence doesn’t go beyond one person’s word against another.
Offences committed against children have their own unique difficulties; children may not have the language to describe what happened to them, children may be embarrassed about certain aspects of what happened, and their accounts may change as they recall or feel able to articulate different parts of what happened.
Defendants are also less helpful upon arrest — a person accused of drug offences, or even violence, may accept the crime or parts of the crime, but a person accused of child abuse or rape, will rarely offer the police anything beyond a stonewall “I didn’t do it, it’s all a lie,” meaning that the case will have to be investigated with a view to putting the evidence before a judge, barristers will become involved and a trial process embarked upon where the outcome is never guaranteed.
And, sadly, because of the backlog of Crown Court cases, which grew out of the austerity measures of the Cameron years, trials may only take place months if not years after the original complaint has been made.
All of these things mean that the challenge of dealing with sex offences properly is massive.
Which is why the suggestion that the United Kingdom as a country has a particular problem with sexual offences, and that our Prime Minister has contributed to that, is an assertion that doesn’t hold water whilst the attempts to make political capital out of this issue are brazen and unfounded.
In my experience, the reality is that in the last twenty years profound improvements have been made in the investigation and prosecution of sex offences.
When I did my first trials back in the first years of this century, complainant’s were still mainly treated in exactly the same way as any other witness, they would typically have their sexual history paraded in the full view of a jury in the hope that their previous behaviour might assist in the attempt to persuade a court that they were promiscuous; children would be asked questions that were excruciating, in language that was utterly inappropriate and totally confusing to them.
Evidence would consist of statements taken by police officers who had had little by way of training and would usually speak to complainants and witnesses at locations and in circumstances which were bound to lead to inadequacies in the account that would come back to haunt the prosecution at a trial.
Medical evidence was haphazard and of poor quality and there was often an assumption that the absence of any physical trauma, particularly to the genital areas, meant that the witness must have been lying.
Slowly and systematically these deficiencies and limitations have been addressed.
The Blair Government enacted legislation in the form of the Youth Justice and Criminal Evidence Act 1999, that restricted cross-examination about anyone’s previous sexual history except in certain circumstances; this was followed by the Criminal Justice Act of 2003, which put into place laws concerning the use of previous convictions, procedure and sentencing; in the same year, the Sexual Offences Act was placed onto the statute books to codify and modernise the law concerning sexual offences, laws which had been largely unchanged since the 1950s.
This improved legislative framework went hand in hand with the improvements in the way in which sexual offences were investigated — specialist police investigators were introduced at this time, and local police forces were directed to introduce and implement strategies to deal more efficiently with those who have complained of sexual assault or rape.
They dealt more closely with the CPS to ensure that the first accounts taken by police officers and doctors were more thorough and that any individual who makes such a complaint had their evidence video-recorded by way of what became known as an ‘Achieving Best Evidence’ video.
Only specially trained officers, used to dealing with the victims of sexual crime were allowed to carry out these interviews and the language used was carefully selected to ensure that all accounts would be fair, thorough and admissible as evidence.
The number of SARC centres (Sexual Assault Referral Centres) expanded from a handful in the late 1990s to the 43 that operate today and the myth that you must have genital injury if you have been raped was busted to the extent that today Judges will routinely inform a jury that the absence or presence of genital injury is not necessarily an indication of a sexual assault or rape.