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Sexual Offences

The Sexual Offences Act 2003 updated the law, much of which dated back to 1956.

The main provisions of the Act include the following:

  • Rape is widened to include oral penetration
  • Significant changes to the issue of consent
  • Specific offences relating to children under 13, 16 and 18
  • Offences to protect vulnerable persons with a mental disorder
  • Other miscellaneous offences
  • Strengthening the notification requirements and providing new civil preventative orders

Find out more about how we prosecute sexual offences

Speech on the prosecution of rape and serious sexual offences by Alison Saunders, Chief Crown Prosecutor for London

30/01/2012

The purpose of today's talk is to start a debate about how we in society view the offence of rape and whether we bring our conscious or subconscious views and stereotypes to our consideration of it. Rape is a serious crime and one in which there have been a number of reports and recommendations over the years looking at how we improve the way in which these cases go through the Criminal Justice System. It is surprising when looking back that it was only in 1991 that the law was clarified to recognise rape could be committed within a marriage. Before then a husband could rape his wife with impunity. It is also not that long ago that we did not have rape specialists either investigating or prosecuting these cases and victim care was awful.

I don't intend going back to those dark days during this talk but I do think it is worth some time reflecting on how far we have come and the improvements we have made before moving onto look at what else we need to do to improve the way in which these cases are dealt with now. I would not be as stupid as to say that everything is now perfect and that there is no room for improvement. There is. So we will look at what else we can do to improve the way in which we deal with these cases and whether it is just practitioners within the CJS who need to examine their preconceptions and views which may impact on their handling of these cases.  Currently the largest reason for attrition in cases that are prosecuted is acquittal by a jury which we will look at later but which may raise questions about social perceptions and myths.

Background and Developments

I am not going back to 1991, you will be pleased to hear, but suggest we start at 'Without Consent' - a joint HMCPSI and HMIC review (national) of the investigation and prosecution of rape offences, 2006 - published January 2007.

This followed up on the National Rape Action plan of 2002. The Review found there had been considerable efforts to improve the investigation and prosecution of rape offences. It found that in many cases the issue was about ensuring what is done is effective and carried out to a consistently high standard rather than any new policies or initiatives. The review confirmed that the CPS had issued guidance, training for prosecutors, introduced specialist prosecutors, improved recording of decisions, and given clear instructions about challenging offensive and inappropriate cross examination. The Review did recommend that the CPS should introduce more training to include the psychological impact of rape and forensic issues.

Interestingly the review found that of the recorded crimes it looked at, 87.5 per cent of cases involved cases where the suspect was known to the victim. Unlike most other crimes, with crimes of rape the victim and suspect are known to one another in the majority of cases. This means that in a large number of cases the main evidential issue is one of consent.

One of the key messages from the Review was that early liaison between police and CPS and a prosecution team approach to case building is essential; CPS should be making significant contribution to investigative process by providing detailed action plans.

There were 12 recommendations from the Review: seven of which were specifically relevant to CPS:

  • Recommendation 6 - that where expert evidence is to be sought from a Forensic Physician - ...CPS ensures that FP attends conference and is always called as live witness
  • Recommendation 7 that CPS should set a standard for the role of rape specialist (RS) lawyer and deliver appropriate training, should ensure that specialist accreditation is the subject of continuous review and should enhance and define the role of Area Co-ordinator
  • Recommendation 8 ensure that rape cases receive full and early consultation with OIC and the Rape Specialist
  • Recommendation 9 that one RS is involved in and responsible for any rape prosecution from beginning to end and that there is consultation with a second RS if the outcome is 'No Further Action' or discontinuance
  • Recommendation 10 conference with trial counsel and OIC in all rape cases
  • Recommendation 11 CPS produces rape checklist to address all relevant issues at advice stage
  • Recommendation 12 CCP to ensure continuity of counsel as well as RS throughout case and CW should attend court throughout the trial

A number of post-Review actions were taken nationally which included:

  • ACPO/CPS Guidance on Investigation and Prosecution of Rape this was the first time ACPO and CPS have cooperated to produce joint guidance accompanied by joint regional workshops with the police
  • ACPO/CPS Protocol on the Investigation and Prosecution of Allegations of Rape, supported by joint regional workshops
    Criteria for RS and for rape counsel established nationally and Rape And Serious Sexual Offences (RASSO) course which included input on the psychological effects of sexual violence on victims and on forensic issues and Child Abuse training courses devised (currently, CPS are currently working on new updated RASSO course as refresher training);
  • CPS Rape Policy updated; Rape Manual produced and Legal Guidance updated;
  • CPS Violence Against Women and Girls (VAWG) assurance monitoring set up, to check compliance with policy as well as to assess the quality of review decisions the results of which are reviewed by the DPP;
  • Network of VAWG co-ordinators established with minimum standards including oversight of rape;
    Visits to Areas by a national CPS/ACPO team providing CCPs and Chief Constables with bespoke reports on the handling of rape in their areas; and
  • Visits to CPS Areas by the DPP and Chief Executive which included a focus on the local handling of VAWG cases including rape.

In CPS London there was strong leadership on the issue through the VAWG and a Dedicated Rape Coordinator was appointed in March 2008.

The criteria for becoming a rape specialist were rigorously applied by CPS London. From 2008 there were quarterly checks that no cases had been assigned to non-RS lawyers. There are currently 177 rape specialists in London, accounting for 22 per cent of all rape specialists in England and Wales. Lawyers designated as RS received the newly designed RASSO training, which included:

  • input from forensic physicians from the Havens on forensic and medical issues;
  • challenges to commonly held myths and stereotypes about rape and rape victims, presented in London by psychologists and crisis workers from the Havens and
  • practical exercises on pro-active case building.

Over 100 RS in the Area also received specialist Child Abuse training which dealt in detail with issues surrounding third party material and concurrent proceedings in Family Court.

CPS London also ran a bespoke course for RS in November 2009 with psychologists from Barts and the Havens addressing the psychological impact of rape and serious sexual assault.

There was an overhaul of the London rape counsel list to ensure that only appropriately trained counsel were used. This also included extensive monitoring of counsel. We have just gone through an exercise to update this list with applicants having to apply to be on the list.

In 2008 an MPS and CPS Protocol on Investigating and Prosecuting Allegations of Rape was agreed and signed up to by police and CPS managers on each of the 32 boroughs as well as at Area (London-wide) level. This included setting up monthly liaison meetings between Borough Crown Prosecutors and DIs to maintain proper supervision of all rape cases and to enable lessons to be learnt from outcomes.

The concept of early consultation over rape offences was also introduced.

As well as engaging on a strategic and operational level with police, there was engagement by senior management and the London rape co-ordinator in a number of groups including:

  • London Criminal Justice Partnership Rape Convictions Working Group and successive sub-groups
  • London Safeguarding Children Board
  • Havens Strategic Management Board
  • SCD2 Reference group
  • MPA Domestic and Sexual Violence Group and
  • GLA Mayor's Group Violence Against Women and Girls.

In 2010, Chief Crown Prosecutors, including me, throughout the country undertook a course on rape called 'Bridging the Gap'. This included a presentation on the Merits Based Approach (following an earlier case known as 'FB') to continue to challenge stereotypical assumptions on the part of decision makers. The case of FB was not a rape case but it highlighted the issue of whether in applying a "realistic prospect of conviction test" a prosecutor should adopt a "bookmakers" approach or whether the correct question should be on balance, is the evidence was sufficient to merit a conviction knowing what the defence case was.

To illustrate this the Court of Appeal used the example of a so called "date rape" case. So even though past experience might tell a prosecutor that juries can be unwilling to convict in cases where, for example, there has been a lengthy delay in reporting the offence or the complainant had been drinking at the time the rape was committed, these sorts of prejudices against complainants should be ignored for the purposes of deciding whether or not there is a realistic prospect of conviction. In other words, the prosecutor should proceed on the basis of a notional jury which is wholly unaffected by any myths or stereotypes of the type which, sadly, still have a degree of prevalence in some quarters.

Instead of asking what is the likelihood of conviction we should ask ourselves, what would be the merits of a prosecution - taking into account what we know about the defence case.

As well as the merits based approach the CCPs also had a session on myths and stereotypes from a forensic psychiatrist. The training also looked at directions for the jury to be delivered by the judge. These directions include the need to avoid making false assumptions - for example allegations of rape where the parties are known to each other or why there might be late reporting. Although these directions are helpful and hopefully are taken account of by the jury, I wonder if they are enough and would be more effective given earlier in the trial for members of the jury who may have preconceptions or who have not been aware of the stereotypes or myths which have found their way into their sub-consciousness.

This course was also delivered by the rape coordinator to RS in London and to barristers on their accreditation course.

Further measures undertaken to improve performance in handling of rape cases were:

In late 2009, there was a complete review of our processes. This led to the Legal Director and rape co-ordinator meeting with all the Borough Crown Prosecutors to review and give direction to how cases were managed on the boroughs, and
establishment of London Rape Charging Centre.

The London Rape Charging Centre (LRCC) was set up in March 2010. This delivers early consultation and charging decisions in all cases involving allegations of rape and other penetrative offences in London (other than those dealt with on emergency basis out of hours by CPSD). The Area prioritised the charging stage in recognition of:

  • The need for early working prior to charge by the prosecution team
  • The need to gather all key evidence and build strong cases at the outset
  • The need to bring to and early conclusion those cases with evidential deficiencies that could not be remedied: previously, a relatively high level of cases were discontinued before trial.

The establishment of the LRCC was contrary to the principle of continuity of lawyer throughout the lifetime of a case; but it was considered the best way of improving the quality of decision making in rape cases and establishing consistency throughout the Area. This has proved to be the case as will be seen from the figures showing a much improved attrition rate since the LRCC was established. Decisions to discontinue cases charged by the LRCC should not be taken on borough with the involvement of the charging lawyer.

London is committed to the establishment of a specialist RASSO (Rape and Serious Sexual Offences) unit and is currently moving to establish one as we speak.

The guiding principles for new RASSO unit are:

  • Continue to work in close partnership with police from early stage and increase the number of early consultations
  • A reduction in number of cases discontinued or on which no evidence offered post charge but prior to trial full case building pre charge
  • Increase the charge:NFA ratio
  • Full compliance with policy concerning conferences in all contested cases
  • Continuity of prosecutor and counsel
  • Written feedback from counsel in all cases (not just unsuccessful) to develop best practice and learn lessons
  • Better communication with victims - including a post charge letter as recommended by Stern review.

Figures

I want to take a minute to look at some figures, which are the reason why I thought about how we improve our performance but also what is behind the figures. As with all figures there are a number of explanations which could be applicable.

Please note that throughout numbers of case referred to are those FLAGGED as rape (s1, s5, s30 Sexual Offences Act (and their predecessors) + attempts) - i.e. NOT other serious sexual offences such as assault by penetration or those charged as familial offences.

Pre-charge:

Data for pre-charge referrals to the CPS for the 24-month period to November 2011 shows:

NFA:charge ratio from August 2011 is roughly 1:1, an improvement from 0.6 to 1 in 2010-11. Although in the last few months of that period the trend has been more cases proceeding to prosecution than not, i.e. in November 2011, 79 cases were received of which 46 were charged and 33 NFA'd. This is attributable to better gate-keeping, closer liaison with police colleagues in order to build as strong a case as possible and proper application of Director's Guidance before cases are referred
The number of cases charged has remained roughly the same throughout the 24 month period.

Attrition:

The total number and percentage of cases finalised were as follows:

2009-2010: 894 cases or 54.5 per cent
2010-2011: 861, or 48 per cent
This year to date: 450, or 47.2 per cent
This shows a downward monthly trend (with October and November at 38.5 per cent and 35.6 per cent respectively).  It is encouraging to see the improvement of nearly 10 per cent in attrition but we know we can improve further. What this does lead us onto is to look at the reasons why cases were unsuccessful and what we can learn from them to improve this performance.

Reasons for unsuccessful outcomes:
Outcomes for the 24-month period to November 2011 show jury acquittals being the biggest reason for unsuccessful outcomes - 48 per cent over that period. Figures for Quarter 2 of 2011 - 2012 show an increase to 51 per cent:

Unsuccessful outcomes, Quarter 2, 2011:
Total number of cases: 70
Acquittal after trial: 36 = 51 per cent
Prosecution offered no evidence: 30 = 43 per cent
Judge Directed Acquittal: 3 = 4 per cent

Of the cases we discontinued or offered no evidence, 20 i.e. 67 per cent were for victim 'issues' - ranging from the victim not wishing to give evidence at a re-trial to the victim returning to their home country and not wishing to come back to give evidence, to credibility being undermined by third party or other evidence, withdrawal, and the victim refusing contact with police. This suggests further work with partners is needed to look at reasons for victim attrition, and also to look at delays in bringing cases to court, which must have substantial impact on victim withdrawal.

Nationally and in London there has been a rise in jury acquittals in proportion to other reasons for unsuccessful outcomes.  In London this also coincides with an increase in the conviction rate. This suggests a number of different issues.

Let me say to begin with that we would never aim to reach a situation where there were no jury acquittals. That would smack of a risk-averse prosecution who had adopted the "bookmakers" approach that the case of FB, mentioned earlier, dismissed. There will always and should always be jury acquittals and juries are an important and integral safeguard in our system, of which I am a great supporter. But we do need to look at possible issues behind the figures to see how we can improve.

One issue may be that following the training on the merits based approach we are prosecuting more cases that juries find difficult to convict. And/or that more work is needed with partners and the public to address public awareness and challenge myths and stereotypes which have traditionally led to high jury acquittal rates in sexual cases. It is this which is the real crux of my talk and this which I think we need to look at and start a wider discussion on. There is of course very little we can look at which helps us with what members of society who become jurors think when they are considering the rape case on which they are deciding, but there is some research which helps us and some which highlights some factors we may need to consider.

Research

Research by Finch and Munro in 2005 looked at how mock jurors in rape cases involving intoxicants behaved.  It dealt with what is perceived to be a 'normal' reaction to sexual assault. The research with mock juries showed that only dramatic wrongdoing on the part of the defendant diverts jurors from focussing on the victim's behaviour, and that stereotypical attitudes persist. They were willing to 'forgive' mens sexual behaviour and acquit the assailant in most cases. Expert evidence and judicial direction can have a significant impact on the jury's reasoning when considering aspects of the victim's behaviour during/after sexual assault - such as delays in reporting and demeanour when giving evidence, for example. But it was found that the most stubbornly held view centres around a victim's failure to fight back or physically resist. The research found that it took a dramatic wrongdoing to divert the jury's attention onto the offender's and not the victim's behaviour.

In an MPS study of snapshot reports of rape to police in one month in 2005, 87 per cent of victims were vulnerable in at least one of the following ways: through drink or drugs, being under 18, having a mental health issue, or being or having been in an intimate relationship with the suspect. It was observed that to have legal credibility a witness must be articulate, unafraid of the court process, mature and psychologically stable and with a recall of events. As such most victims are totally disadvantaged.

Does the combination of victims having one or more of the vulnerabilities identified above combined with the social misconceptions found in the jurors research impact and account for why we are seeing an increase in jury acquittals? Does this in itself make women think twice about reporting an offence of rape?

A number of organisations posed this question to the Leveson inquiry. They argued in submissions to the judge that reporting in tabloid and in some cases broadsheet newspapers perpetuates violence and even prevents some women reporting rape to the police.

They said: "Women make up 50 per cent of the public, but too often in the tabloid press are portrayed as sexualised objects or victims who are somehow to blame for the violence committed against them. When older women are pushed out of the media, when they are not used as expert commentators, when women are not seen as equal partners - this has a negative effect all the way through society."

In their submissions to the Leveson inquiry the four groups argue some reports of rape subtly blame victims and perpetuate myths about what constitutes "real rape", making victims reluctant to report rape and affecting what judges, juries, and the general public consider as rape.

They go on to say that abuse and violence against women is too often trivialised; and that the sexualisation of women in the media degrades women and legitimises attitudes associated with discrimination and violence against women and girls. The groups argue that reporting of rape often focuses on the victims - their clothes, whether they were drinking alcohol, and their relationship with the perpetrator - rather than the person who has committed a crime, perpetuating myths of a "perfect rape victim".

"Young women are particularly at risk of sexual violence and stereotypes that they are 'provocative' or look older than they are frequently used by perpetrators in justifying their offences," the submissions say.

They are calling for mandatory training for journalists on the law over reporting violence against women, the scale of violence against women and "clear sanctions for journalists who break the law".

Naked, highly sexualised and gratuitous images of women in parts of the tabloid press, which appear in the same pages as adverts for "violent" pornography, sex webcams and prostitution services, "normalise and eroticise" reporting of violence against women, said the campaign group Object. "It is essential that any inquiry must include an examination into the way the press routinely objectifies, sexualises and trivialises women," said Anna van Heeswijk, campaigns manager. "Leveson will not be doing his job properly unless he addresses this constant portrayal and treatment of women as sex objects."

We have worked hard in the CPS and across the CJS to combat and bust the myths and stereotypes that these organisations are concerned about. We also work with communities to challenge these damaging myths and stereotypes through our external communications and through the work on our local scrutiny panels. However is this a debate we need to start now so that society can look at this issue and deal with it.

Societal Myths

So what is a "Myth"?

A "Myth" is a commonly held belief, idea or explanation that is not true. Myths arise from people's need to make sense of acts that are senseless, violent or disturbing. They attempt to explain events, like rape and abuse, in ways that fit with our preconceived ideas about the world - they arise from and reinforce our prejudices and stereotypes.

It is an unfortunate that myths about rape and sexual violence may be brought into the jury room, and form an obstacle to obtaining convictions. It is therefore imperative that we recognise these myths and challenge them at every opportunity.  Lets have a look at some of the myths that may get in the way.

Myth 1: Rape Occurs Between Strangers in Dark Alleys

Implications:

  • implies that home is safe;
  • implies that rape can be prevented by avoiding certain places and therefore blames the victim;
  • assumes a particular victim profile and therefore stigmatises him or her; and
  • entrenches racial and class prejudices.

Facts:

  • the majority of rapes are committed by persons known to the victim;
  • date or acquaintance rape is very common; and
  • victims are often raped in their homes.

Myth 2: Women Provoke Rape By The Way They Dress or Act

Implications:

  • attempts to excuse rape and "blame the victim";
  • assumes that a woman who draws attention is looking for sex or "deserves what she gets" ; and
    re-victimises and stigmatises the victim.

Facts:

  • dressing attractively and flirting is an invitation for attention and/or admiration, not for rape; and
  • only the rapist is responsible for the rape!

Myth 3: Women Who Drink Alcohol or Use Drugs Are Asking to Be Raped

Implications:

  • attempts to excuse rape and 'blame the victim'; and
  • re-victimises and stigmatises the victim.

Facts:

  • Women have the same right to consume alcohol as men;
  • being vulnerable does not imply consent;
  • if a woman is unable to give consent because she is drunk, drugged or unconscious, it is rape; and
  • only the rapist is responsible for the rape!

Myth 4: Rape is a Crime of Passion

Implications:

  • assumes that rape is impulsive and unplanned;
  • assumes men to be incapable of delaying gratification or controlling sexual urges;
  • assumes that rape is about uncontrollable lust;
  • attempts to excuse, minimise and romanticise rape;
  • assumes that only 'attractive' women are raped;
  • disregards elements of power, aggression, violence, control and humiliation in rape; and
  • attempts to remove the responsibility for the rape from the rapist.

Facts:

  • research and evidence from rapists themselves suggests that most rapes are premeditated and planned;
  • many rapists fail to get an erection or ejaculate;
  • interviews with rapists reveal that they rape to feel powerful and in control, not for sexual pleasure;
  • there is no 'typical' victim of rape. Women and men of all ages can be victims; and
  • many rapists are involved in sexually satisfying relationships with their partners at the time of the rape.

Myth 5: If She Didn't Scream, Fight or Get Injured, It Wasn't Rape

Implications:

  • disbelieves and re-traumatises the victim;
  • invalidates the experience of the victim; and
  • discourages him or her from seeking help.

Facts:

  • victims in rape situations are often legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives;
  • the victim's perception of threat influences their behaviour;
  • rapists use many manipulative techniques to intimidate and coerce their victims;
  • victims in a rape situations often become physically paralysed with terror or shock and are unable to move or fight; and
  • non-consensual intercourse doesn't always leave visible signs on the body or the genitals.

 
Myth 6: You Can Tell if She's 'Really' Been Raped by How She Acts

Implications:

  • disbelieves and re-traumatises the victim;
  • invalidates the victim's experience and individuality; and
  • discourages him or her from seeking help.

Facts:

  • reactions to rape are highly varied and individual; and
  • many women experience a form of shock after a rape that leaves them emotionally numb or flat - and apparently calm.

Myth 7: Women Cry Rape When They Regret Having Sex or Want Revenge

Implications:

  • reinforces stereotypes of the 'vindictive woman';
  • reinforces stereotypes of women as untruthful;
  • re-victimises and stigmatises the victim; and
  • undermines her support for seeking justice

Facts:

  • studies have indicated that only 2 per cent of all reported rapes are false, which is slightly less than false reporting in all other crimes.

Myth 8: Only Gay Men Get Raped/Only Gay Men Rape Men

Implications:

  • reinforces homophobic fears and prejudices;
  • creates the illusion of the safety for straight men;
  • re-traumatises and stigmatises male survivors; and
  • results in very few reported rapes on men.

Facts:

  • men of all sexual orientations get raped;
  • men who rape other men are often heterosexual - they usually have a relationship with a woman; and
  • rapists rape other men as part of their violence and need for power, dominance and control.

Myth 9: Prostitutes Cannot be Raped

Implications:

  • further disempowers sex workers; and
  • provides an excuse for abuse

Facts:

  • prostitutes have the same rights with regards to consent as anyone else: the transactions they negotiate with clients are for consensual activities, not rape.

Myth 10: If the victim didn't complain immediately it wasn't rape

Implications:

  • disbelieves and re-traumatises the victim;
  • invalidates the experience of the victim; and
  • discourages him or her from seeking help.

Facts:

  • the trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint. This fact was recognised by the Court of Appeal in R v D (JA) October 24 2008, where it was held that judges are entitled to direct juries that due to shame and shock, victims of rape might not complain for some time, and that a late complaint does not necessarily mean that its a false complaint.

Challenge for You

I hope that the facts and issues raised in this talk prompt you to start thinking about how we together can combat and dispel the myths and stereotypes that affect public perception of rape offences. How do we make it easier for women to feel that they can report an offence of rape without being disbelieved or vilified if they go through the process?  How do we ensure that myths and stereotypes do not play any part in a jurys deliberations whether consciously or subconsciously?

I am passionate about improving the service we in CPS London provide to rape victims and to do the best we can for them.  I know through our work with police and CJS colleagues that they do as well.  I also think that we can improve our service but I do not think that we can do this alone. Thus the debate which I hope this talk has provoked will be vital to raising the number of reported rapes and convictions.