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Stern Review into the handling of rape cases in the UK

Today saw the publication of Baroness Vivien Stern’s review into the handling and reporting of rape cases in England and Wales. Baroness Stern (pictured left) is a Senior Research Fellow at the International Centre for Prison Studies (ICPS) at King’s College, London, and there is much in her review that is relevant to those involved in criminal justice and law reform debates surrounding the offence of rape throughout the legal systems of the UK and Ireland. This post provides a short overview of the focal points of the review.

Baroness Stern’s most eye-catching findings are with regard to the way in which conviction rate statistics drive the debate surrounding rape. In particular, she makes careful efforts to unpack the distinction between attrition rates from complaint to conviction (which produce the oft-quoted figure that only 6 percent of rape cases result in conviction) and conviction rates once a case is brought to trial (at 10):

‘We have looked closely at the information about convictions for rape and it is clear to us that the figure for convictions of people of all ages charged with rape (as the term is normally used in relation to crime) is 58 per cent. The confusion arises from mixing up the conviction rate with the process of attrition. ‘Attrition’ is the process by which a number of the cases of rape initially reported do not proceed, perhaps because the complainant decides not to take the case any further, there is not enough evidence to prosecute, or the case is taken to court and the suspect is acquitted. The attrition rate figure has been the cause of considerable concern, and attempts to reduce it are behind many of the reforms that have been introduced in recent years.’

Moreover, it was important to note that, where a case reached court, conviction rates were not unusually low (at 16):

‘Analysis of all 4,310 jury verdicts for rape from October 2006 to March 2008 across all courts in England and Wales finds that rape does not have one of the lowest jury conviction rates. With an overall jury conviction rate of 55 per cent, juries actually convict more often than they acquit in rape cases. Other serious offences such as attempted murder have lower jury conviction rates than rape.’

The main focus of Baroness Stern’s review, however, is on the role of the victim in the criminal justice process. The present over-emphasis on prosecution and widespread quoting of attrition rates undermines efforts to get victims to come forward. Interestingly, she casts this appeal to enhance the focus on the victim’s needs in terms of positive obligations owed by the state (at 11):

‘We do not say that prosecuting and convicting in rape cases is in any way unimportant. Far from it. It is important, and necessary. But in dealing with rape there is a range of priorities that needs to be balanced. Support and care for victims should be a higher priority. The obligations the State has to those who have suffered a violent crime, and a crime that strikes at the whole concept of human dignity and bodily integrity, are much wider than working for the conviction of a perpetrator.’

The most important proposals in this regard the need to protect the victim in court and to keep the victim fully informed in the progress of the trial process (at 15): ‘It is often said that the court case can be ‘like being raped all over again’. It is suggested that juries do not convict in rape cases because they hold stereotyped views of rape and how victims should behave. The role of the prosecutor prosecuting for the State and in the public interest is not understood or can be resented by complainants who feel the defendant is better placed because he has a barrister to represent his interests.’

In its response to the report, the British government emphasised the protections established for the victim during the trial process under the Youth Justice and Criminal Evidence Act (at 5):

‘Changes made in 1999 mean that victims of sexual violence are automatically eligible for special measures assistance in court, including giving their evidence-in-chief using a video recorded statement and giving evidence via a television live link. They can no longer be cross-examined by the accused, in person, and there are strict limits on cross-examining victims about their sexual history.’

However, given the emphasis placed on these factors by the Stern Review, the spotlight is likely to fall once again on the judiciary’s reinterpretation of the “rape shield” law to protect the right to a fair trial of the defendant in R v A (2001).

Baroness Stern further acknowledges that misperceptions of rape remain prevalent amongst the general public (at 16):

‘Considerable comment has been made about juries and their beliefs. It is suggested that jurors may, as members of the public, be ill informed about rape and may assume that all rape victims fight back, have injuries, report the crime straight away and are obviously deeply distressed, although none of these assumptions is accurate.’

Moreover, despite a special ruling as to the amount of guidance Crown Court judges can give to juries to address some of these issues, Baroness Stern remains concerned that conviction rates will remain depressed as a result of these misperceptions of rape (at 12):

‘False notions about rape are widespread. The general public will often assume that rape is a rare and very violent act, usually committed by a stranger on a woman walking home in the dark, that victims of rape would fight back and there should be injuries to prove that the victim was really being raped. A rape victim should be in a state of extreme distress when reporting the rape and anyone who had really been raped would tell someone about it straight away. Such attitudes can affect the way rape cases are dealt with by police, prosecutors, judges and juries.’

She focuses upon the legal changes under the Sexual Offences Act 2003 as potentially shifting the public debate and tackling these misperceptions (at 13-14):

‘It is important that the 2003 law is understood. It says that one person having sex with another when that person has not agreed to it is rape. The law does not say force has to be used for it to be defined as rape. Violence is not part of the definition. The absence of consent is the defining factor. … And the court will not be satisfied if the perpetrator thought that there was consent but that belief was unreasonable. … All these legal changes have been in a similar direction, to move from the underlying presumption that victims are likely to be lying or were somehow negligent in letting the rape happen towards a standpoint that sex without consent is rape and all other factors about a person making a complaint of rape are irrelevant to that central fact. In the law of England and Wales there is now no question that sexual intercourse without consent, where there is no reasonable belief in consent, is the crime of rape, whether the people involved know each other or not, have had a previous relationship with each other or not, or are married to each other.’

This landmark review therefore moves away from recommending further law reform in relation to rape. Recommendations instead focus on police/prosecution performance and on the treatment of rape victims by these public bodies. Whilst much has been done in this regard, the overarching theme of the review amounts to an acknowledgement that the legal system is only as good as the officials responsible for operating it and that progress in this regard must be reinforced.

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