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August 7, 2019

The rape victim’s right to choose

“Beyond reasonable doubt” is a high hurdle for criminal convictions. It needs to be high to ensure that the sanctions and stigma of criminal conviction are reserved only for those who are guilty. Gaining a serious criminal conviction always changes and frequently ruins someone’s life. A criminal record for rape is life long.

In light of this, cases like those of Liam Allan are alarming. Accused of rape, he might well have been convicted had mobile phone evidence not been revealed at the eleventh hour.  This mobile phone evidence cast doubt on the complainant’s version of events and the case collapsed.

Recently Laura Hood was imprisoned for three years for falsely accusing a taxi driver of rape. These are incredibly rare occurrences, but we need to acknowledge that they can happen when considering how to increase the conviction rate for rape.

More and more people are reporting rapes but a smaller proportion are getting convicted. We need to convict and sanction those who rape, but we can’t afford to dilute defendants’ rights to a fair trial. Otherwise more Liam Allans will be convicted as miscarriages of justice multiply.

The Victims’ Commissioner for London, Claire Waxman, is concerned about the low conviction rate for rape, and commissioned research on the attrition of cases – why so many rapes which are reported to the police in London don’t get to trial.

One of the key findings is that many victims are choosing not to pursue the criminal justice process at an early stage. The most common reasons are cited as

  • The stress and trauma caused or exacerbated by the investigation, particularly because of having to talk in detail about the incident;
  • A desire to move on from what had happened, often intensified by feeling surprised and overwhelmed by the process of official police investigation;
  • Concern for their own safety, or for the perpetrator’s own situation, particularly in cases with a domestic abuse overlap where the victim’s priority often was to put an end to the harmful behaviour, rather than a prosecution;
  • The act of reporting in and of itself being enough, with reasons for reporting focusing on wanting to get the incident off their chest or seeing reporting as their civic duty (in terms of providing relevant information and intelligence); and
  • Not having wished to report the rape in the first place, particularly in cases where the report was made within the context of the Domestic Abuse, Stalking and Honour Based Violence (DASH 2009)

The research continues: “an Early Evidence Kit (EEK) was administered in one fifth of cases, the victim/survivor attended a Haven in one fifth of cases and a Video Recorded Interview (VRI)23 was completed with the victim/survivor in just over one third of cases. These proportions do not necessarily reflect a lack of police effort”.

Reluctance to engage in video recorded interviews etc is consistent with victims’ reasons for withdrawing. Why start co-operating with the criminal process if you don’t want to go through it?

I differ from Claire Waxman in my reflections on victim withdrawal. She cites the low rate of conviction as a “justice crisis” and writes of victims being “failed”. I think a lot of victims’ concerns about proceeding are valid and eternal. The criminal justice process will always take a long time (since investigation is complex), talking about the rape in detail may always be traumatic, and there will always be people who simply do not want to proceed to prosecution.

We should make some changes to the system to encourage more rape victims to engage with a prosecution – provide better counselling and support services, facilitate pre-recorded video cross-examination of witnesses, help women to leave abusive relationships. But in the end there are certain fundamental elements of the process which cannot be altered without diluting the rights of defendants to a fair trial. Which means even the most victim-friendly trial process may be a painful one. So we should respect some rape victims’ desire not to engage with police and prosecution and to heal in their own way.

NB no complainant cited in this research withdrew from the criminal justice process because they did not want the police to download their mobile phone data. But it may be that 2016, the year of the cases cited, predates this request becoming common. The examination of mobile phone data (from both complainant and defendant) is viewed as crucial in investigating some rape cases. But victims’ advocates see current practice as intrusive and disproportionate. Transform Justice trustee @hannahquirk1 has asked the advocates (who say that victims of crime should “never have to sign away their privacy rights in the pursuit for justice”) to “explain how they balance this against a suspect’s right to a fair investigation & trial?”, but so far there has been no response.