The 23-year prison sentence imposed on Harvey Weinstein in New York in March was the culmination of a case that had catapulted the by then decade-old MeToo movement to international prominence.
In its new hash-tagged social-media incarnation, #MeToo has undoubtedly played a part in raising society’s awareness of the true scale and nature of sexual offending.
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The seminal prosecutions of Weinstein and a cohort of similarly high-profile celebrity and establishment giants are the tip of an iceberg which is now widely understood to extend through every part of society.
It is against this background that figures reported in September 2019 showed that convictions in rape cases in the UK fell by 26 percent in the year between 2017-18 and 2018-19.
In 2017-18, there were 54,045 rapes reported and 2,635 convictions – a conviction rate of 4.9 percent. The following year, there were 58,657 rapes reported and 1,925 convictions – a conviction rate of just 3.3 percent.
According to the Criminal Justice Statistics published by the UK government, the total number of crimes reported in the year ending March 2019 was 5.95 million. Of these, 550,052 ended in a conviction – a rate of 9.2 percent – or nearly three times higher than that for rape. Given that rape figures are included in this total, the conviction rate for all other crime is even higher than this.
More worrying perhaps than this headline figure is the 33 percent fall in the number of completed prosecutions and a 38 percent fall in the number of cases charged in the first place, the last figure heralding a potential ongoing decline in conviction rates.
These are the biggest falls since records began.
So why, at a time when sexual offending has perhaps never been more widely recognised and reported, have convictions hit an all-time low?
The nature and effect of sexual offending have always presented a unique set of evidential and perceptual challenges for prosecutors.
Such offences are almost invariably committed in private without witnesses and, consequently, the determination of the central issues in most cases relies on a jury’s assessment of differing accounts from the complainant and the defendant.
Consent is frequently chief among those central issues. In the majority of rape cases, the prosecution must make a jury sure that the complainant did not consent, and that the defendant did not reasonably believe that she or he consented. The jury is therefore required to determine the state of mind of both parties during the incident in question.
These already highly nuanced decisions are further influenced by stereotypes still prevalent even in our more enlightened contemporary society: that a drunk woman cannot complain if she is raped; that previous consensual sexual activity between the parties reduces or removes a woman’s right to refuse consent on another occasion, or indeed to legitimately withdraw consent to further sexual activity on the same occasion; that rape will result in vaginal injury; and, yes, even in this day and age, that a woman wearing a short skirt or revealing too much cleavage must expect what she gets.
Each of these stereotypes, and many more, are of course deeply and entirely flawed; the law determines that a person consents if they agree by choice, and have the freedom and capacity to make that choice, no more and no less than that. However, one or more of these stereotypes must inevitably be overcome in most trials.
The psychological impact of sexual crime is profound. Victims who, like jurors, are influenced by the insidious myths and prejudice surrounding such offences, are often burdened with guilt and shame which makes them reluctant to report. And, even when they do report, rape’s legacy of fear and trauma may affect a complainant’s ability to give a coherent account of their ordeal.
The investigation and prosecution of rape cases, therefore, require sustained effort and commitment throughout the process.
In England and Wales, the decision as to whether a suspect will be charged with a criminal offence lies with the Crown Prosecution Service (CPS). Before charging, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and that prosecuting is in the public interest.
The CPS takes a merits-based approach to this test in sexual offence cases. This approach requires prosecutors not only to anticipate defence points but to assess them as well. They must recognise factors which may objectively undermine the prosecution case, while appreciating that not every defence point will be good, let alone fatal to the prosecution and ensuring that cases do not fail the test merely because they are difficult.
Vitally, this approach highlights the importance of not making decisions based solely on a jury’s likely reaction to myths and stereotypes. A properly considered prosecution should be robust in the face of such challenges and should seek to counter and debunk prejudice.
In my experience in the decade since its adoption in 2009, the merits-based approach has resulted in many successful prosecutions in just such difficult cases.
In the three years between 2016 and 2019, however, CPS charging rates decreased by an unprecedented 52.1 percent.
Women’s and victims’ campaign groups have expressed concern that the merits-based approach to determining which cases should go to trial was being replaced by a more risk-averse attitude to charging decisions.
The fear was that the CPS was urging its lawyers to take account of the myths and stereotypes that might influence a jury and to weed out potentially weak cases accordingly, thereby increasing the percentage of cases in which they achieved convictions.
The CPS has denied any such change of approach, and a study conducted by Her Majesty’s Crown Prosecution Service Inspectorate in 2019 found no evidence that prosecutors were becoming risk averse. Any reversion to considering cases in which stereotypes might apply as weak cases would indeed be a retrograde step.
Successful prosecutions such as that resulting in the series of trials brought against those involved in child sexual exploitation and abuse in Rotherham in the UK from the 1980s until the 2010s, relied on prosecutors focusing on building a strong case against abusers, rather than on how juries might react to the evidence of young victims who considered those abusers to be their “boyfriends”.
As Alison Levitt, former legal advisor to the Director of Public Prosecutions (DPP), has observed: “A system that only prosecutes safe cases is sending attackers the message that vulnerable people are open to abuse as the CPS will not prosecute.”
Charging decisions made by the CPS came under increased scrutiny following the failure of several high-profile trials of young men for rape after previously undisclosed digital material was discovered and provided to the defence at trial.
Foremost among these, perhaps, was the case of Liam Allan, who was acquitted three days into his trial in December 2017 when previously undisclosed text messages cast potential doubt on the complainant’s account of non-consensual sex.
These cases highlight one of the greatest challenges encountered during the investigation and prosecution of sexual offences in our digital age.
When a defendant is charged with any offence, prosecutors are required to provide the defence with any material that undermines the case for the prosecution or assists the case for the defence.
This frequently includes mobile phone messages, social media conversations or photographs. Police officers face the necessary but enormous burden of reviewing thousands or even tens of thousands of pages of downloaded digital material, often single-handedly.
The size of this task has increased exponentially over a decade during which police numbers have fallen to their lowest level in 20 years because of government austerity policies.
Police officers investigating sexual offences are often required to conduct numerous such investigations, many requiring similar digital-material reviews, simultaneously. The impossibility of managing such a workload has led to complainants and suspects waiting longer before any decision is made about charging.
Changes made to the law in 2017 to protect suspects from spending many months on bail, have in fact led to the police simply releasing suspects under investigation, without bail conditions but in a state of permanent limbo for months or even years. It is perhaps not surprising, therefore, that the number of cases referred by the police to the CPS decreased by 22.6 percent between 2017 and 2019.
These troubling declines contrast with a long period in which the CPS worked proactively with police officers and barristers, achieving real progress in improving outcomes in rape cases.
My own professional experience includes numerous challenging cases where the dedication and hard work of the whole prosecution team has overcome investigative, disclosure and evidential difficulties to ensure fair and successful prosecutions.
The progress made over the last decade in exposing myths and stereotypes has been both encouraging and inspiring. Jurors can and frequently do overcome such prejudice in cases which would undoubtedly have foundered because of them in previous years.
Those rendered vulnerable by their own personal circumstances and the offences perpetrated upon them have been empowered and emboldened to disclose their abuse in ever-greater numbers. These advances should be championed and built upon.
It is axiomatic that the strengths and weaknesses of every case must be critically analysed so that genuinely weak cases are not charged, but capitulation to stereotypes should play no part in this process.
The prosecution’s duty of disclosure must be discharged rigorously to ensure a fair trial process, and the scale of this duty in the face of the volume of evidence created by digital communication must be recognised with strategies that ensure all such reviews are guided by the issues in the case.
None of this can be achieved, however, until the unmanageable burden on investigative officers is eased by the provision of more resources, both human and technological.
In the CPS, staff numbers have been cut by 25 percent since 2010. The legacy of a decade of swingeing austerity-led cuts to a justice system now reduced to breaking point in the face of ever-greater challenges, combined with a relentless focus on a statistic-based measurement of success, have created a perfect storm.
But the decline in convictions in rape cases can be halted and, indeed, reversed.
The CPS must continue to hold a steady course, tending neither towards unrealistic optimism or unwarranted pessimism in its charging decisions. CPS Rape and Serious Sexual Offence (RASSO) teams throughout the country continue to be made up of experienced, dedicated lawyers who are as capable as ever of making well-judged and, where necessary, brave charging decisions in difficult cases.
Both they and the police officers whose vital work it is to investigate and build cases, must be properly resourced. The 2019 Rape Inspection Conducted by Her Majesty’s Crown Prosecution Service Inspectorate concluded that police and prosecutors had been deprived of funding.
A government committed to the fair and effective prosecution of rape and other serious sexual offences must now evince that commitment by proper investment in a modern and effective justice system.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.