Question of the essay:
“There are certain facts about rape in England and Wales which are indisputable. There is the fact that each year more and more women, and now more and more men, report rape to the police There is also the fact that few of these reported rapes ever translate into convictions.’’ (J. Temkin and B. Krahe, Sexual Assault and the Justice Gap: A Question of Attitude, Hart Publishing, 2008, page 9)
The provisions relating to consent and to the mens rea of rape introduced by the Sexual Offences Act 2003 were intended to reduce the ‘justice gap’ represented by the persistent difference between the numbers of reported rapes and the numbers of convictions discussed in the above quotation. With reference to empirical research, critically examine the reasons why these statutory provisions appear not to have succeeded in reducing this gap.
Plan of the essay :
Introduction
Define Rape and how Law defines it?
What law governance Rape? Sexual Offense Act 2003 , How consent was introduced to the definition of rape.
How rape was 50 years ago compared to today ?
How reporting rape has improved
Body
Reported Rape- how and why reported rape has increased
Conviction Rate- why have the rates dropped. Research reason why it has gone low.
What is attrition? The case is dropped Use Stern Review.
Talk about attrition ?
Stern review shows conviction rate are actually 56% from and not 6%. This rate is only recorded for rape and no other crimes. So it is difficult to compare if the conviction rate is bad or not.
How Police deals with rape?
How improved and how are failing?
How Crown Prosecution Service deals with rape?
Improved or failing?
Barristers, judges and jury deal with rape? Use Temkins review
Pressure in the courtrooms also lack of evidence and witnesses for victims , use journals newspaper articles ex , Guardian , Independent .
Cases
R V Bree 2007
R V H 2007 = fit the cases with the reviws and articles and where it fits in the body
Should use all the Reviews below
1-Stern Review (2010)- how public authority deals with rape ,
2-Lovett and Kelly (2009) – attrition rates in 33 EU countries
3- Temkins (2000) How Barristers Deals with rape
4-Harris and Grance (1999) Police cases which were reported as rape
5-Lees (1996) Research indicated that these provisions were often circumvented by the Defense.
6- Myhill and Allen (2002) – the victim knows the man who rapped her
7-Smart (1989)
8- HMCPSI report (2007 )
9-Amnesty International (2005) – women said to be responsible for the rape
10- Smith (1989)
Conclusion
Why does attrition exist ?
What are the actual figures of attrition ?
References
Books:
Criminal Justice , Fourth Edition , Malcom Davies , Hazel Croall , Jane Tyrer , 2009
Sexual Assault and the justice Gap : A question of attitude , Jenefier Tmkin and Barbara Krahe.
Journals
Newspapers
Gurardian , Independent , Telegraph.
The Reference should be OSCOLA Referencing.
Some useful information about the essay :
Research into barristers’ perceptions
• Temkin (2000) conducted research into barristers’ perceptions of the problems involved in prosecuting rape, and the strategies employed by defense advocates
• In-depth interviews were conducted with 10 barristers
• 3 were QCs,& one of the se sat as a Recorder and was licensed to try rape cases
8 of the 10 were women
• Barristers generally saw delays in bringing cases to trial as a particular problem in rape cases
• They said this was because most victims tried hard to forget what had happened to them in order to cope with their lives
• It was then traumatic to have to recall events in court,and victims were often reluctant to do so
• Victims’ minds sometimes went blank in court
• Barristers interviewed also mentions victims’ difficulties in describing intimate experiences in a large, intimidating courtroom
Temkin – Lack of supporting evidence
• Except in stranger rape cases,many barristers felt it was extremely difficult to achieve a conviction without supporting evidence, unless the complainant was ‘amazingly good’ in the witness box
• Delay in reporting the offence was seen as a serious setback, as it leads to forensic evidence being lost, and excludes evidence of immediate complaint
• The abolition of the corroboration warning requirement (under s. 32 Criminal Justice and Public Order Act
was seen as helpful in cases where there was little supporting evidence.
Barristers interviewed criticised the quality of medical evidence provided by police surgeons
• Some doctors failed to mention that lack of injuries does not signify that rape had not taken place
• Some doctors delved in to the complainant’s medical history, which could lead to the recording of irrelevant material that would be useful to the defence
Temkin – CPS use of inexperienced counsel
• Some barristers felt that the CPS often instructed barristers too inexperienced to prosecute rape complaints well
• It was felt they were not equipped to draw out accounts of rape from reluctant complainants during examination- in-chief
• A defence barrister described in experienced prosecuting barristers as an ‘open target’
Temkin – Previous relationship with the accused
• Some barristers said it was very difficult to obtain convictions where the complainant had previously had a sexual relationship with the accused
• Some expressed the view that prosecutions should not generally be brought where there had been a previous relationship with the accused
Others disagreed with this view & supported the CPS’ approach in bringing these cases to trial
Previous relationship with accused – A barrister’s comments
‘’I feel very strongly about this. I feel very strongly that it’s
a great waste of public money to prosecute the ex- husband or the ex-boyfriend rape unless there is extreme violence involved or it’s part of a sort of campaign of harassment. I have had to prosecute an awful lot of cases where people have still been sort of seeing each other after having a relationship, where he wants it and she doesn’t and it happens. Well she says it was rape and probably, yes, it really was. But frankly does it matter?’’
Barristers’ comments on complainants’ dress
• Many barristers interviewed made distinctions between complainants on the basis of whether they seemed ‘respectable’
There search report suggests that their language in the case of complainants who did not appear ‘respectable’, ‘‘was, in some cases, sharply denigratory as if there was some sympathy for jury assessments based on such criteria’’
A barrister’s comments on complainants’ behaviour
‘’I mean the silly woman is prepared to be picked up by a stranger and go back for, quotes, coffee, you know, what does she expect? If a woman does that, can she really be surprised that a jury will say that she may have consented to sex? Again a hitch-hiker or somebody like that.’’
Views about harassment of complainants
• When asked whether defence counsel still harassed complainants in court, most barristers understood this to mean overt bullying and making the complainant cry
• All denied that they did this,but some said other barristers did it
• Most saw overt harassment as an unproductivetactic, but made it clear they would use any tactic short of this if necessary
Barristers’ approaches to defending
‘’When I’m defending it’s no holds barred in that anything
that properly I can use to help secure my client’s acquittal I will.’’
‘’If you’re asking do I take account of the sensitivity of the complainant, the blunt answer is no because it’s not my brief.’’
Temkin – Defence strategies
The research identified 5 distinct defence strategies:
Assessing the complainant & adapting their approach accordingly
Trapping the complainant – by lulling her into a false sense of security
Discrediting the complainant – this was seen as the
central defence strategy
Exploiting inconsistencies to suggest fabrication Using and challenging medical evidence
Ways of discrediting the complainant
Maligning the complainant’s behaviour at the time of the incident – this was seen as key to securing an acquittal
Maligning the complainant’s clothes, both at the time of the incident and on other occasions
Maligning the complainant’s sexual ‘character’ – e.g. by seeking to introduce sexual history evidence
Undermining the complainant’s personality
‘’My tactics are to be agreeable, not to be aggressive,
to be reasonable, to ask the sort of questions in the sort of way that a juror might wish to ask them. You’ll put your chap’s facts and obviously controvert her facts. They’re less important than undermining her personality. It sounds sinister but that’s what you’re trying to do, make her sound and appear less credible.’’
Temkin – Difficulties in countering defence tactics
‘’There is a difficulty in properly presenting women witha right to decline sexual intercourse despite the fact that they may have been very drunk or have acted in a sexually explicit manner towards the man. It goes down to a number of attitudes which are ingrained in people.There plainly is a perception that women should act in a certain way.’’
Rape and intoxicants
• Researchsuggeststhatalcoholhasbeenconsumedby the complainant and/or the defendant in a high proportion of rape cases
• Kelly et al’s(2005 )found that 56%of complainants had ingested alcohol around the time of the incident
Research by Finney(2004) found that the majority of convicted rapists studied had drunk alcohol in the 6 hours preceding the rape
• Some research suggests that complainants’?consumption of intoxicants in sexual assault situations is often the result of surreptitious administration (‘spiking’ with either alcohol or drugs), rather than self- administration (Finch and Munro, 2007)
Social psychologists’ research
• Finch and Munro (2007) summarise the findings of social psychologists’ research studies into third parties’ perceptions of alleged rape situations involving intoxicants
• These studies tend to find adouble standard
• Intoxicated complainants are held more responsible for what has happened than sober complainants, while intoxicated defendants are held less responsible than sober defendants
Research into mock jurors’ perceptions
• Finch and Munro conducted 2 research studies using focus groups and mock jurors in rape trial simulations
• One was conducted before , and one after,the enactment of SOA 2003
• In the later study , the mock jurors were aware o fSOA 2003’s definition of consent
• Both studies examined mock jurors ‘ attitudes to intoxication and consent, and the way in which they attributed responsibility as between the complainant and defendant
Mock jurors’ perceptions
• The findings of Finchand Munro’s 2 studies were broadly similar in respect of mock jurors’ attitudes
• The mock jurors ‘generally focussed more on the behaviour of the complainant than the defendant
• Where the complainant had voluntarily ingested alcohol or recreational drugs, the participants tended to see her as at least partially responsible for what had happened
They also tended to see the complainant as atleast partially responsible where the defendant had ‘spiked’ her drinks – many mock jurors’ held her responsible for not taking adequate care to prevent this
Mock jurors’ perceptions – continued
• When the defendant had ‘spiked ‘the complainant’s drinks, mock jurors’ attributions of responsibility generally only moved to him when he was perceived to have had a clear motivation of rape from the outset
• Even where mock jurors attributed responsibility to defendants who had ‘spiked’ a complainant’s drinks, they were often reluctant to label what had happened as rape
• They were more likely to label it as rape when the intoxicant used for ‘spiking’ was Rohypnol, a drug they associated with media reporting of drug-assisted rape
Finch and Munro’s conclusions
‘’…it took quite dramatic wrong-doing on the part of the defendant to divert the focus of jurors away from the complainant’s behaviour.’’
They suggest this may be due to:
Ø acceptance of rape myths and stereo-typical views of acceptable female socio-sexual behaviour
Ø ‘just world’ theory – the idea that some people seek comfort in the belief that ‘bad things do not happen to good people’
Ø ‘defensive attribution’ – people reassure themselves that they are not at risk of assault by viewing those who have been assaulted as in some way responsible for what has happened to them
Intention of legal tests introduced by SOA 2003
Finch and Munro (2006):
‘’By introducing legal tests based upon concepts of freedom, capacity, and reasonableness, the Sexual Offences Act 2003 reflects a deliberate legislative attempt both to provide a clearer structure for jury deliberations on sexual consent and to hold defendants to a higher level of accountability in relation to their belief in its existence.’’
Mock jurors’ approaches to
mens rea
While most mock jurors agreed there had been no consent, there was less agreement on whether the defendant reasonably (but mistakenly) believed the complainant was consenting
• Some interpreted the section1(2) test as an objective one, and focussed on what the majority of people would consider reasonable
• Many others interpreted section1(2)as requiring a test that was at least partially subjective
• Finch and Munro suggest that for the latter group the wording ‘reasonable in all the circumstances’ generated ‘considerable leniency’ towards the defendant
Finch and Munro’s conclusions
‘’The shift in the 2003 Act to a reasonable belief test may
ultimately be undermined by the requirement to take account of ‘all the circumstances’ that the judge or jury deem to be relevant and by the refusal to maintain an emphasis on objectively acceptable standards of behaviour.’’
R v Bree [2007] EWCA Crim 804
‘’In our judgment, the proper construction of section 74 of the 2003 Act …leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.’’
R v H [2007] EWCA Crim 2056
‘’…despite Mr Lewis’ eloquent efforts, his submissions are based to a large extent on the premise that because the complainant cannot remember if she consented or not, that is fatal to the prosecution. This principle, if it is such, was expressly disavowed by this court in Bree… This is pre-eminently a case for a jury…. Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. It would be a rare case indeed where it would be appropriate for a judge to stop a case in which, on one view, a 16 year old girl, alone at night and vulnerable through drink, is picked up by a stranger who has sex with her within minutes of meeting her and she says repeatedly she would not have consented to sex in these circumstances.’’
• Sexual Offences Act 2003 definitions and aims • Research in to public perceptions of rape?• Attrition process in relation to reported rape
Ø Complainant withdrawal?Ø Police responses to reports of rape Ø Role of Crown Prosecution Service?Ø Trial process & influence of myths?Ø Use of sexual history evidence at trial
Sexual Offences Act 2003
• The Sexual Offences Act (SOA) 2003 constituted major reform of the law relating to rape and other sexual offences
• Before SOA 2003 the law on sexual offences was largely contained in the Sexual Offences Act (SOA) 1956
• Thegovernment White Paper preceding SOA 2003 stated that the provisions of SOA 1956 were ‘archaic, incoherent and discriminatory’ (Home Office, Protecting the Public, 2002)
Definition of rape
(a) A person (A) commits an offence if –
b) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
c) B does not consent to the penetration, and?d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents
Section 74 SOA 2003: Definition of consent :For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Statutory presumptions relating to consent
• Section 75 contains several evidential presumptions about consent – these are rebuttable
• Section 76 contains several conclusive presumptions about consent – these are not rebuttable
Where the circumstances set out in these sections do not apply, the jury must still consider whether or not there has been consent under the general meaning in section 74
Actus reus and mens rea?• Actus reus–it must be shown that the sexual act took
place and that the victim did not consent
• Mens rea–it must be shown that the defendant did not reasonably believe that the victim consented
Attrition in rape cases
• Attrition in the context of reported crimeis the process by which reported crimes are dropped/withdrawn at the various stages of the investigation and prosecution process
• Attrition rates in relation to cases of reported rape are particularly high
Increases in reporting rates over time
• SternReview(2010)suggests that about 11%of rapes are reported to the police
• Since the 1970s the number of reports of rape made to the police has grown
• Increasing numbers of men as well as women have reported experiences of rape in recent years
• Between1985& 2006 reported rapes in England& Wales increased by 663% (Lovett & Kelly, 2009)
• The increase in reports maybe partly the result of widening legal definitions of rape & partly the result of changing social attitudes
Percentage decrease in conviction rates
• As the reporting of rape has increased over time,the percentage of reported rapes which result in conviction has decreased
• In 1977 the conviction rate in England and Wales was 32% of reported rapes
• SternReview(2010) suggested a rate of6%
Home Office statistics through out much of the 2000s indicate a figure of 5-6% for most years
Research into public perceptions :Amnesty International conducted a poll in 2005, in which a significant minority of respondents said they would hold women ‘‘partially’’ or ‘’totally’’ responsible for being raped where:
Ø they failed to say ‘no’ clearly (37%)
Ø they behaved in a flirtatious manner (34%)
Ø they were drunk (30%)
Ø they wore sexy or revealing clothing (26%)
Ø they were known to have had many sexual partners (22%)
Ø they were alone and walking in a dangerous or deserted area (22%)
Stern Review – False notions about rape
‘’False notions about rape are widespread. The generalpublic 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 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 the police, prosecutors, judges and juries. Understanding of male rape is very limited. It is assumed that it only occurs within the gay community or in prison.’’
Research on attrition
• Lovett&Kelly(2009)conducted research in to attrition rates in 33 European countries using national data from each country
• They also analysed 100 case files in 11 of the countries (100 in each), including England & Wales
• InEngland&Wales,many cases were dropped during police investigation – 26% in the early stages, 24% in middle stages, & 28% at later stages
• 15%of the remaining quarter were with drawn, discontinued, or resulted in acquittals during the court phase
• England and Wales had the 2nd lowest conviction rate (of reported rapes)
• Scotland had the lowest rate
Complainant withdrawal
Kelly& Lovet t found that decisions to discontinue in the early and mid investigation stages were taken either by the complainant (38%) or the police (11%)
• In76%(29) of cases where the complainant withdrew, the complainant knew the suspect well
• 50%(19) of those complaints which were withdrawn involved current of former partners
The case files in dicated that 16 of these 19 cases involved continuing or previous domestic violence
• Very few complainants with drew in the later stages
• Most decisions to discontnueat later stages were made by prosecutors (21 of 28), mainly on the basis of insufficiency of evidence
Police classification of ‘no crime’
• Most research shows that the highest rates of attrition occur at the stage of reporting to the police
• Many reports of rape made to the police are not recorded as rape
• Complaints initially recorded as rape may later be given a ‘no crime’ classification
• Home Office guidance is suedin1986statesthatreports should be classified as ‘no crime’ only where the complainant retracts the complaint, & says it is a fabrication
• Research in 2 London boroughs later showed that ‘no- criming’ continued even where allegations were not deemed to be false (Smith, 1989)
0?• Kellye tal(2005) found that25% of reports of rape made
to police were ‘no-crimed’
Police classification of ‘no further action’
• Harris&Grace(1999)exam in examind just under 500 reports which the police initially recorded as rape
• 25%of these were given a ‘no crime ’classification–the reasons given were that the allegation was deemed false, there was insufficient evidence, or the complaint was withdrawn
• The study found that reports were least likely to be ‘no- crimed’ where the complainant was under 13, where violence had been used, or where the alleged rapist was an intimate
• Where rape was committed by an intimate,the police frequently took ‘no further action’
Police classification of allegations as false
• Kelly et al (2005) found that 9% of allegations made to police in their sample were designated by police as false
• They found that a number of these designations did not comply with Home Office guidance & when these were excluded, the proportion of false allegations was 3%
• They also found a police tendency to conflate false allegations with retractions & withdrawals
• They suggest that this helps to reproduce an investigative culture which emphasises elements that lead to designations of complaints as false
Crown Prosecution Service
• An HMCPSI study which reported in 2002 found inconsistent decision-making within the CPS in relation to issues of victim credibility
• There port stated that‘’…the prosecutor’s approachtoo often tended to by one of only considering any weaknesses rather than also playing a more proactive role in seeking more information and trying to build or develop a case.’’
A later HMCPSI report(2007) found in dications of improved practices within both the police and CPS, but also found inconsistencies, and the continuance of practices which contribute to high attrition rates
Influence of stereotyping
• Kelly et al’s study (2005) suggests that stereotypes influence many police and prosecutors’ perceptions of how a judge and jury would assess a complaint
• Their research suggests that the idea that ‘real’ rapeis usually committed by strangers was a common theme of police interviews cited in the study
• The study also found unnecessary recording by police of the sexual history of complainants – which thereby became disclosable to the defence
The courts
• Kelly et al suggest that an important factor in creating the high attrition rates in rape cases is the tendency of criminal justice agencies to ‘second guess’ each other’s responses
• The suggest that each tier in the system bases its decision-making on the responses it expects from the next tier
• The final tier is the trial -each agencies’decisions tend to be based on the responses they expect from the judge and jury
Therefore,while a relatively small percentage of alleged rapes go to trial, the trial process is still a central element in shaping the way in which criminal justice agencies respond to rape
Conviction rates at trial stage
• Stern Review looked at 4,312 jury verdicts at trials for rape and similar offences for the period from October 2006 to March 2008
• The conviction rate for rape at trial stage was 58% overall
• The Review suggests this is higher than the conviction rate for some other serious offences – e.g. attempted murder
Stereotyping and myth at trial
• Research literature suggests that a number of persistent myths about rape form the background to rape trials (Smart 1989, Lees 1996, Kelly et al 2005, Kelly et al 2006)
• These include the belief that:
Ø ‘real’ rape is committed by strangers in public spaces
Ø ‘real’ rape involves physical resistance & the use of force resulting in physical injuries
Ø women often make false allegations of rape Ø women ‘provoke’ rape by their behaviour
Myth of frequent false allegations
• The corroboration warning -under old common law rules, judges in rape trials were required to warn the jury that it was dangerous to convict on the uncorroborated evidence of the complainant
• The corroboration warning was based on the notion that false allegations of rape are common
• Current research evidences uggests that false allegations are no more common in relation to rape than to any other criminal offence (Kelly et al 2005, 2009)
• The corroboration warning was abolished by s.32 Criminal Justice and Public Order Act 1994, but research suggests that the myths on which it was based persist
Examples of corroboration warnings
‘’It is well known that women in particular and small boys are liable to be untruthful and to invent stories.’’
‘’It is well known that in sex cases women sometimes imagine things which various ingredients in their make up tend to make them imagine.’’
Examples of corroboration warnings
‘’It is well known that women in particular and small boys are liable to be untruthful and to invent stories.’’
‘’It is well known that in sex cases women sometimes imagine things which various ingredients in their make up tend to make them imagine.’’
Attitudes to acquaintance rape
• Until the case of RvR [1991] 4AllER481 it was not an offence for a man to rape his wife
• Research evidence suggests that ,while successful prosecutions can now be brought against husbands, rapes by current or former husbands or partners are often either not seen as ‘real’ rape, or are seen as less serious than rapes committed by strangers
Analysis of the BCS in 2000 (My hill&Allen,2002) showed that women are more likely to be sexually assaulted by men known to them – often partners (32%), or acquaintances (22%)
Attitudes to acquaintance rape
• Until the case of RvR [1991] 4AllER 481 it was not an offence for a man to rape his wife
• Research evidence suggests that,while successful prosecutions can now be brought against husbands, rapes by current or former husbands or partners are often either not seen as ‘real’ rape, or are seen as less serious than rapes committed by strangers
Analysis of the BCS in 2000 (Myhill&Allen,2002) showed that women are more likely to be sexually assaulted by men known to them – often partners (32%), or acquaintances (22%)
Effectiveness of the section 41 procedure
• Research by Kelly et al(2006) found that the use of the section 41 procedure was influenced by stereotypical assumptions about appropriate female behaviour among both defence and prosecution lawyers
• Where sexual history evidence had been introduced, acquittal was more likely
Influence of sexual history and reputation
‘’Questions of sexual history and reputation reinforce bias and stereotypes, which in turn not only temper the urgency to investigate thoroughly, but also have a bearing on decisions about whether to proceed with a case…Interviews with police officers and CPS staff… confirmed that what are now commonplace behaviours
– being drunk, having sexual experiences before the age of 16 (consensual and non-consensual), and having multiple partners as an adult – were seen to undermine a complaint of rape. These perceptions are, at worst, a form of prejudice or, at best, legacies of centuries of discriminatory requirements in rape law.’
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