Britain: Myths about rape myths
http://pcwatch.blogspot.com/The Government is to produce "myth-busting" packs for juries to get more convictions for rape. These are supposed to demolish the idea that date rape does not count as rape, or that women who drink or dress provocatively are "asking for it". The details have not been finalised because of the small matter that pretrial information given by the prosecution might prejudice the trial. But politicians are determined to raise the conviction rate for this crime. "Where changes to the law are needed, we will make them," the Solicitor-General, Vera Baird, said yesterday. "Justice must not be defeated by myths and stereotypes."
Quite right. But I wonder if she and I have different notions of justice. For the more I look at this issue, the more myths I seem to find. The biggest is being propagated by politicians themselves. They repeat, ad infinitum, that the conviction rate for rape is scandalously low, at 5.7 per cent. They conclude from this that juries cannot be trusted. But 5.7 per cent is only the proportion of convictions secured out of the total allegations made, not the proportion of convictions secured out of the cases tried. The attrition rate in rape cases is high: only about 12 per cent of cases reach court. So in the courtroom, the true conviction rate is about 44 per cent, slightly higher than that for murder.
Rape is a shocking crime. But you would expect it to be at least as hard to prosecute as murder. More than four out of five allegations are now made against a partner, friend or acquaintance. About half of those involve drink and/or drugs. Jurors think long and hard about decisions if there is no witness, only circumstantial evidence and where a guilty verdict means a minimum of seven years in jail. Gang rape by strangers carries the same minimum sentence as rape by a drunken partner. There is no equivalent to manslaughter, because victim groups feel that a lesser charge would downgrade the seriousness of the crime. Yet some lawyers feel that some juries are not convicting because they feel that the right crime is not being tried.
No one argues that there must be something wrong with the law because only 40 per cent of those tried are convicted of murder. Yet rape is a deeply emotive issue. The Government has already bent over backwards to bend the law. It has changed the definition of consent. It has created specialist rape prosecutors. It now plans to make "hearsay evidence" - complaints of rape to a third party - admissable in trials. Yet the number of allegations that result in a conviction is still falling, because although more people are being found guilty of rape, allegations have jumped by about 40 per cent in the past five years.
This is partly because more women are prepared to come forward. That is a good thing. There are now some excellent sexual assault referral centres and rape crisis centres, which welcome women in and collect evidence - although provision of these is still too patchy. There is also a growing number of rape allegations involving binge drinking, which tests definitions of guilt to the limit.
The focus on trials is obscuring the more important question of why so few cases come to court at all. Earlier this year a report by the Inspectorate of Constabulary and the Crown Prosecution Service found enormous variations in the way that different police forces deal with rape. That remains a problem. It is clear that some forces are sceptical about some claims, particularly those that involve alcohol, and that many women are easily discouraged from pursuing cases that are traumatic to endure.
Home Office research undertaken two years ago at six different referral centres found that a sixth of the complaints that were dropped by police were classed as false allegations. A quarter were dropped because of insufficient or no evidence. A third were dropped because the complainant withdrew - some because a report had been made by someone else, against the person's wishes. This is tricky territory. It is right to encourage women to come forward. But a Home Office analysis of the British Crime Survey recently stated that "only 60 per cent of female rape victims were prepared to self-classify their experience as rape". If those women did not see themselves as victims, I wonder why the Home Office is so keen to make them so?
What hits you when reading reports of these cases is the painful individuality of each one. It is impossible to generalise about the infinite circumstances of human behaviour. Some people fear reprisals. Some want to deal with the trauma in their own way. Some are not sure what really happened. These are the delicate lines on which so many judgments must turn.
In March the Court of Appeal quashed the conviction of a 25-year-old computer software engineer, Benjamin Bree, for raping a 19-year-old student after a night of drinking with friends. The judges ruled that the student was still capable of consenting to sex, even after consuming substantial amounts of alcohol. They also ruled that a drunken person can lose the capacity to consent, and that would amount to rape. That seems to me to be an intelligent calibration. Ministers are still considering whether to insist that no agreement can be taken as consent if it is given when intoxicated. But that would make a drunken man accountable for his deeds, but not a drunken woman.
It is an outrage that some men are getting away with rape. But I also worry that the language in which the issue is now being discussed implies that the only right result is a conviction. That would be a travesty of justice. It is no good trying to bust myths about rape if you are also going to propagate the myth that everyone is guilty as charged.
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