Rape and the criminal justice system: Survivors deserve better

The striking disparity between reported rapes and convictions is no secret. Rape convictions are now at a catastrophic all-time low in England and Wales, and survivors have understandably lost faith in the system which is meant to protect them.

In an effort to tackle the rape myths and stereotypes that plague rape and sexual assault cases, obstructing convictions, the Crown Prosecution Service (CPS) recently published new guidance for prosecutors. This published guidance coincides with the Victims Commissioner’s recent report, which revealed that only one in seven survivors expect justice.

The CPS’s guidance is, of course, a step in the right direction, but is it enough to stop the “decriminalisation” of rape? And, is the CPS doing enough to ensure that survivors’ voices are heard, respected and believed?

Survivors betrayed by the system

Dame Vera Baird, the Victims Commissioner, recently released her much-anticipated report “Rape survivors and the criminal justice system”. The report collated data from a survey that interviewed 491 survivors of rape, and looked into the impact of rape on survivors and how it is reported and prosecuted. It revealed a deeply troubling reality.

According to the report, during the period of 2019/20, rape convictions were the lowest on record. Although there were 55,000 reports of rape reported to the police, only a very small fraction of cases actually resulted in a charge (1,867).

A total of 1.4% of reported cases were charged, and from 2015/16 to 2019/20, the percentage of survivors withdrawing support for their cases also increased from 25% to 41%.

Before survivors even reach the reporting stage, they face significant barriers and discouragement. The report showed that for 95% of survivors who didn’t report to the police, fear of being disbelieved was a key factor. This reason was followed by the belief that their case would not be investigated or prosecuted successfully because of their “gender, sexuality or lifestyle” (88%). Overall, the report outlined that the majority of survivors believed that their credibility would be “tested” by representatives of the system.

One survivor expressed fears that if she had reported, she would have been retraumatised due to the invasive nature of the criminal justice process: “My whole life and identity would have been ripped apart and scrutinised and there would have been a 0% chance of him getting prosecuted,” she said.

In addition to this, digital disclosure requirements were also found to have a negative impact on survivors’ reporting experience. Two-thirds of the survivors interviewed said that the police had required access to their mobile phone data, other digital devices, medical, counselling, social services or education records. However, many expressed that these requests felt like a violation of privacy, and in some cases, these requests were even compared to the violation the survivors had experienced when they were raped.

Reflecting on her experience of this, a survivor who reported her rape back in 2018, said: “I don’t really understand the need to do this, are they trying to ensure I fall under the category of a ‘good survivor’? Are they assessing my sexual history and preferences because they know this can be used against a survivor in court? Are they trying to prove I wasn’t lying? It felt like the investigation was more about me than the perpetrator at this point! They didn’t look at his phone!”

Fortunately, although much too late, in July, these kinds of intrusive digital strip searches were scrapped. This U-turn occurred after a coalition of women’s rights groups, represented by the Centre for Women’s Justice, threatened legal action against the CPS.

Barred from accessing justice

Fundamentally, the report showed the severely detrimental impact that societal rape myths have on the reporting of rape, and the deep flaws that lie at the foundations of the criminal justice system. Disturbingly, less than half of rape survivors (48%) felt that they were treated with sensitivity, fairness and respect by police at the reporting stage. This is down from 54% in 2018.

Another survivor said that she felt that her experience had been minimised and invalidated by a police woman when she reported the rape: “I was absolutely devastated by the response of the first police woman I interacted with. I met her and another policeman at [train] station. They then took me to the [survivors’ centre]. There was a long wait until I was seen and in that time, the police took another written report from me. At the end of me stating what had happened (at that point, 2 days previously), the policewoman said to me ‘there is a difference  between regret and rape’. This nearly put me off even going into the [survivor’ centre]”.

Meanwhile, survivors’ experiences of police investigations were equally as poor. Only 57% of those interviewed said they felt they had been kept informed, and 70% had to chase information themselves. A total of 65% of survivors also agreed that there were delays with investigations. Moreover, when asked if survivors could obtain justice by reporting to the police, just 5% strongly agreed, and 9% agreed. A total of 75% “actively” disagreed, 71% of which had experience of the criminal justice system.

Many survivors also felt devastated that their case did not proceed due to the police deciding to take no further action, or the CPS deciding not to prosecute. The main reason given for this was either a lack of evidence or “my word against his”. Survivors were noted to have felt “angry,” “betrayed” “hurt” and “dissatisfied”.

One survivor articulated feelings of worthlessness and shame after the CPS decided not to prosecute: “Devastated. Men can do what they want and get away with it because it will always be a case of he-said-she-said. Like nobody believed me and that I’d made it all up. Worthless as I wasn’t worth prosecuting anyone for. Vulnerable as it could happen again and no-one would do anything about it. Dirty and ashamed; that it was all my fault and I’d wasted everyone’s time. I wished I’d never told a soul. I didn’t know how I was going to explain this to my mum, sister and friend who I’d told. I thought it would make them think the same thing; that it was all my fault and I wasn’t worth it”.

Survivors’ experiences of court were also found to be deeply painful, with many feeling isolated and attacked. Nearly two-thirds noted that their sexual history had been used during cross-examination, and 36 out of the 42 respondents agreed that the cross-examination process was traumatising.

Guidance seeks to defeat rape myths and stereotypes

On 19 October 2020, the CPS published its new guidance for prosecutors to tackle rape myths and stereotypes. The guidance, which comes into effect on 1 November and is subject to three months consultation, includes 39 rape myth updates. It is also part of the CPS’s five-year strategy, as outlined in the Rape and Serious Sexual Offence (RASSO) 2025.

Some of these myths include: Rape is always violent, or involves physical force; rape occurs between strangers in dark alleys; the victim had previously consented to sex with the accused a number of times so s/he must have consented; if your culture condones, or is perceived to condone, marital rape, underage “sex”, or forced marriage, then you should not be upset about it/it does not matter as much/it’s more of a grey area; if the victim didn’t scream, fight, or get injured then it wasn’t rape; you can tell if someone has ‘really’ been raped by how they act afterwards.

In addition to this, the guidelines also address changes in sexual behaviour, communication and the influence of technology. Subsequently, the guidelines include a debunking of the following myths: If you send sexual images or messages prior to meeting someone, then having sex is inevitable; if you meet men online or through hook-up apps you want sex and should be ready to offer sex.

Speaking about the importance of updating guidelines to match the evolving technological landscape, and continual societal changes, Siobhan Blake, CPS rape lead, said: “There have been massive changes to the way people live their lives in the last 10 years and this has undoubtedly transformed the way people interact, date and communicate with sexual partners”.

She added: “As dramatic technological advances have changed the way people meet and connect, it’s vital those in the criminal justice system understand the wider, social, context of these changes. For example, many teenagers believe that sending explicit photos or videos is a part of everyday life. Our prosecutors must understand this and challenge any implication that sexual images or messages equate to consent in cases of rape of serious sexual violence”.

Commenting on the new guidance, Sarah Green, director of the End Violence Against Women Coalition, said: “The new guidance for rape prosecutors is welcome if it enables those who prepare cases for court to predict and reject sexist stereotypes about rape and to really consider the impact of trauma on how rape survivors may present. Rape prosecutions are at an all-time low – with just one in 70 reported cases going to court. We hope therefore that this new guidance will be accompanied by comprehensive new training for all prosecutors and a clear message from CPS leaders that improvement here is expected and is a top priority”.

Harriet Wistrich, director of the Centre for Women’s Justice, said: “We welcome the introduction of new guidance which we hope will improve decision-making by police and prosecutors and begin to reverse the recent dramatic decline in the volume of prosecutions. We believe the decline was largely caused as a result of a retreat by the CPS from a robust approach informed by the ‘merits-based approach’ to decision-making”.

She added: “However, the guidance must be properly implemented, we have seen far too many decisions recently infected by the CPS risk-averse approach and a failure to follow existing guidance on rape myths and stereotypes, with the consequence that many victims have been denied justice and perpetrators have been left free to attack again”.

One can only hope that with the system’s flaws, incompetency and prejudices exposed in the cold light of day, real change will be implemented and survivors of rape will no longer be subjected to revictimisation, disbelief and humiliation. However, this new guidance, which has to power to transform the way that survivors of rape are treated in the criminal justice system, must be adhered to. Without action, the CPS’s guidance is just words on a screen, and empty promises.