The Stagnation of Rape Law in the United Kingdom: the Amount of Cases have Increased while Conviction Rates have Plummeted
By: Kelsey Elling
I. Issue
Whether the Crown Court and the Crown Prosecution Services can implement changes to help increase the conviction rates of rape cases in the United Kingdom?
II. Background Information
Rape law has come a long way, internationally, in terms of laws that protect victims of rape, but it is no secret that “the crime of rape was founded upon myths and stereotypes.”[1] For example, rape law in the United Kingdom was founded on stereotypes and fueled by the fear that many allegations of rape are false.[2] Rape law in the United Kingdom has undergone much reform[3], namely the Sexual Offenses Act of 2003[4], resulting in a major shift in the framework of modern rape law in the 21st century.[5] However, even with these reforms, the number of rape cases have steadily increased, while the convictions rates have slightly decreased.[6] The “gravity of the seriousness of the offense of rape is one that is not reflected in conviction rates.”[7] It is apparent that there is still a major problem with prosecuting rapes at trial in the United Kingdom.[8] The current conviction rate of these cases is about 6-7%, creating an immediate change in policy, law, and the way these cases are prosecuted.[9] The low conviction rates can be blamed on procedural and institutional issues, but are also highly connected to the biases and stigmas that are attached to a claim of rape.[10] The question becomes how can the Crown Court and Prosecution Services in the United Kingdom assist in increasing the conviction rates of rape cases when the low conviction rates are partly because of the stigma of the crime of rape.
III. Analysis
In the United Kingdom, there are many obstacles that stand in the way of a potential case of rape when it moves through the criminal justice system. The various obstacles include police involvement, the Crown Prosecution Services “CPS,” the Crown Court, and even biases and preconceived attitudes of potential jurors.[11] Furthermore, the fact that there are usually no eye-witnesses and the “evidential difficulties and the [high] burden of proof” in cases of rape, make it difficult for prosecutors to obtain a guilty verdict and it also negatively impacts the jurors’ views of these cases.[12] Initially, an individual will report an alleged rape to the police and then the police will perform an investigation.[13] If the police form a reasonable suspicion that the claim of rape is legitimate then they report this claim to the CPS.[14] The CPS then performs its own investigation, without making direct contact with a victim or the witness, and makes the decision on whether to charge the Defendant or not.[15] If the CPS decides to charge the Defendant then there are issues that take place during the trial, stemming from the lack of physical evidence and eye-witnesses.[16]
A. Obstacle One: The Crown Prosecution Service
Some problems with getting a potential claim of rape into the Crown Court stems from the CPS. The CPS has guidelines on how to prosecute cases of rape specifically and what elements need to be made.[17] The CPS has also established a network of Specialist Prosecutors to improve the conviction rate of rapes.[18] However, even with a special network of prosecutors the CPS still falls short on implementing the guidelines, seen through the low rate of rape cases brought in front of the Crown Court and the conviction rates.[19] There are some changes that can be made within the CPS, regarding the guidelines in place, to help increase the conviction rate of rape cases.
Having a specialized team in place to prosecute these cases is a great first step, something that lacks in the United States, but there still needs to be a policy implemented that ensures greater consistency in decision-making within the CPS.[20] One possible solution is to implement a policy where a second opinion is needed if a prosecutor within the CPS decides to drop a claim of rape and not bring it to the Crown Court.[21] This would set up a check on the prosecutor making the decision, ensuring that no claim of rape is pushed under the rug.[22] On the other side, it could be argued that this would create unnecessary work that one employee could complete and contribute to the system being more backed up. However, it is important that there is caution taken when deciding not to prosecute a case of rape.[23] Furthermore, this could help show the public that not only are the prosecutors taking these claims seriously, but prosecutors are exhibiting due-diligence before charging an individual.
The CPS also need to take a more proactive approach to building a case, rather than initially focusing on the weakness in the case.[24] While prosecutors are building a case to bring in front of the Crown Court they do not meet with the victims or any witnesses, they simply rely on the police report and any outside investigation they conduct.[25] There needs to be a shift from focusing on discrediting claims and complaints to gathering evidence and building a strong case.[26] This can be done if prosecutors are allowed to meet with the victim and the witnesses prior to bringing the case to court. If the CPS is worried about keeping emotions out of the prosecutor bringing the potential claim, then another prosecutor from the specialized unit can meet with the witnesses and prepare a report. Moreover, this can be achieved by spelling out the goals of the special prosecution unit and making the policies that the prosecutors must follow.
B. Obstacle Two: The Crown Court and Biases of the Jury
Another issue stems from biases that undoubtedly attach to members of the jury during a rape case. There are not many ways to solve this issue in a legal sense, but the court can assist in key ways. Jurors can be influenced by how the victim dresses in court, the behavior of the victim, if the victim delated in reporting the rape, the lack of physical evidence, the lack of eye-witnesses, and the demeanor of the victim.[27] It is hard to correct these biases during a trial. However, one solution could be to allow expert witnesses at the beginning of a rape trial to try and get in front of the myths and stereotypes of rape.[28] Expert testimony could help aid the prosecutors in their case, but also try and erase any doubts in the jury.[29] Judges have argued that the use of expert testimony would be expensive and many times unnecessary.[30] Furthermore, opponents of expert testimony argue that this would give prosecutors an unfair advantage.[31] However, it could be argued that expert testimony would not give the prosecutors and victims an unfair advantage, but rather level the playing field and ensure that jurors would not be swayed by unjustified biases of the crime.
IV. Conclusion
The fact remains that there still needs to be reform in the way that prosecutors decide to charge individuals with rape and how the Crown Court assists during the trial. Ensuring that there are checks on a prosecutor’s decision to drop a case and allowing prosecutors to introduce expert evidence are two good first steps in trying to cure the low conviction rates of rape cases in the United Kingdom.
[1] Catie Carson, Note, A Comparison of Sexual Assault in the U.S., Canada, and England, 3 Undergrad. Rev. 57, 61 (2007).
[2] Philip Rumney, False Allegations of Rape, 65 The Cambridge L. J. 125, 128 (2006).
[3] Nicole Westmarland, Rape Law Reform In England and Wales, School for Policy Studies Working Paper Series- Number 7 1, 1 (2004).
[4] See generally Sexual Offences Act 2003, legislation.gov.uk.
[5] Westmarland, supra note 3, at 1.
[6] Jean Seaton, Rape: A History from 1860 to the Present, The Guardian, Oct. 20, 2007, https://www.theguardian.com/books/2007/oct/20/featuresreviews.guardianreview8.
[7] A Historical Summary and Analysis of Rape Law, Law Teacher, https://www.lawteacher.net/free-law-essays/criminal-law/history-of-rape-laws.php (last visited Feb. 13, 2018) (hereinafter Law Teacher).
[8] Why rape cases should not be subject to reasonable doubt, Aeon, Dec. 16, 2016, https://aeon.co/ideas/why-rape-cases-should-not-be-subject-to-reasonable-doubt (hereinafter Reasonable Doubt).
[9] See Kate Ewing, Attitudes and Responses to Rape in Light of the Low Conviction Rate, Plymouth L. Rev. 48, 48 (2009).
[10] Law Teacher, supra note 7.
[11] Ewing, supra note 9, at 48.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] See CPS Policy for Prosecuting Cases of Rape, CPS, https://www.cps.gov.uk/publication/cps-policy-prosecuting-cases-rape (last visited Nov. 3, 2018).
[18] Id. at para. 6.
[19] See Ewing, supra note 9, at 58.
[20] Id.; See also CPS Policy for Prosecuting Cases of Rape, supra note 17.
[21] See Ewing, supra note 9, at 58.
[22] Id.
[23] See id.
[24] Id.
[25] Id. at 48.
[26] Id. at 58.
[27] Id. at 62.
[28] Id. at 64.
[29] Id.
[30] Council of HM Circuit Judges, Convicting Rapist and Protecting Victim: A Consultation, Response of the Council of HM Circuit Judges (2006).
[31] Ewing, supra note 9, at 64.