Attrition and rape law reform in the United Kingdom: the urgent need for reform to mitigate rape myth bias

The following article was published in the March 2020 issue of the International Review of Contemporary Law, the journal of the IADL.

by Grace Cowell

Content note: Sexual violence

Abstract                             

Since the adoption of the Beijing Declaration and Platform for Action, rape law reform in the United Kingdom has achieved partial success, most notably evidenced in the increased willingness to report sexual violence. However, reform has consistently failed to address the attrition rate of rape cases in the criminal justice system. In recent years the “justice gap” between the initial reporting of rape and convictions for rape has widened even further. This is due, in part, to a failure to sufficiently address rape myth bias in society as a whole and the criminal justice system in particular. To begin to address this, the Crown Prosecution Service must continue to be held accountable for charging decisions, and standardised objective information should be provided to juries to prevent potential misunderstandings about rape. Ultimately, wide-ranging public education initiatives must be employed to debunk rape myths across society and within the criminal justice system.

Article

The development and implementation of adequate legal and policy frameworks aimed at preventing and prosecuting offences of sexual violence is an ‘urgent priority’ of the Beijing Declaration and Platform for Action (“the Declaration”)[1]. Over the past 25 years the UK has introduced legal and procedural reforms reaffirming this commitment multiple times. This includes at the 23rd Special Session of the General Assembly and the ratification of the Istanbul Convention.

Preceding the upcoming Convention on the Status of Women, the UK government response to the UN Questionnaire on the implementation of the Declaration notes:

‘Whilst the reporting of sexual violence has risen in recent years, there have been reductions in police referrals, prosecutions and convictions for rape cases. In particular, in 2017/18 the volume of rape referrals from the police fell by 9.1% to 6,012, prosecutions fell by 13% to 4,517 and the volume of rape convictions fell by 11.9% to 2,635. In response, the Government has committed to an ‘end to end’ review of the criminal justice system in relation to rape and serious sexual offences, which will consider data from the point of police report to final outcome in court.’[2]

This ‘end to end’ review has been commissioned under the remit of the Criminal Justice Board, a group of senior members of the judiciary which aims to address challenges facing the system. Within this review the inspectorate of the Crown Prosecution Service (“CPS”), has published an examination of rape cases within the CPS (“the HMCPSI report”)[3].

Rape affects a variety of groups of people; membership of groups which are not cis female are subjected to specific and harmful biases. However, this article will focus solely on complainants of rape who identify as women. This does not seek to negate the experience of men and people who do not identify as female.

Conviction and attrition rates

One persistent aim of reform has been to address the attrition rate in sexual offences. Attrition refers to the passage of cases and the rate at which they are funnelled out of the legal process, from the decision to report to the police, through to the police referral decision, the CPS decision to prosecute and the decision of the jury at trial. A comprehensive study of attrition in 2005 recorded the national average as only 5.6% of reported rapes resulting in conviction[4]. The conviction rate only considers cases at the last stage of attrition, when cases are tried by juries; for rape it was 63.4% in 2018-19[5]. For the same time period the conviction rate for all offences was 80.8%[6].

The conviction rate has spurred commentary suggesting that there is unnecessary panic on this subject. However, the conviction rate often obscures the attrition rate, which has officially been accepted as ‘the justice gap’[7]. Since the UK adopted the Declaration the attrition rate has increased further: between 2018 and 2019 just 3.28% of reported rapes resulted in conviction[8]. When one considers that only an estimated 17% of people who are raped report their experience to the police[9], this justice gap becomes a ‘chasm’[10].

To preface, plainly not all reported cases necessitate a conviction. However, as summarised by the HMCPSI report, ‘if 58,657 allegations of rape were made in the year ending March 2019 but only 1,925 successful prosecutions for the offence followed, something must be wrong’[11].

Rape myths and attrition

The continued existence and increase of the attrition rate evidences a failure to develop or implement legal and policy frameworks to adequately prosecute sexual offences. Rape myth bias within society and the criminal justice system is one reason for this. Since the Declaration, various arms of the judiciary have recognised the existence of rape myths and the need to mitigate their effect on cases. However, reform on this basis has been minimal.

CPS Guidance to prosecutors defines a rape myth as ‘a commonly held belief, idea or explanation that is not true… they arise from and reinforce our prejudices and stereotypes’[12]. The CPS gives examples of rape myths, including ‘rape occurs between strangers in dark alleys’, ‘if she didn’t scream, fight or get injured, it wasn’t rape’ and ‘you can tell if she’s ‘really’ been raped by how she acts’[13]. These beliefs are compounded for complainants who experience intersecting oppressions.

A review by Sir John Gillen, a recently retired senior judge, into the law and procedure in serous sexual offences in Northern Ireland summarises the evidential basis of the existence of rape myth bias:

‘The existing research into mock jurors, public research such as the YouGov Survey so recently commissioned by EVAW, the universal acceptance of their presence by judges throughout the common law jurisdictions and, importantly, the first hand evidence with complainants themselves to the effect that even they embrace them. The key issue is not whether these rape myths exist in society. They clearly do’[14].

Rape myths affect all stages of attrition. They drastically impact upon the decision to report to the police, as complainants may not ‘perceive themselves as true victims’ or anticipate that ‘others, including the police, will fail to recognise them as such if they do not conform to the stereotype’[15].

An assumption of jury bias can be prescriptive: police and prosecutors anticipate that jurors believe in rape myths and filter cases accordingly. This perpetuates a cycle, further reinforcing stereotypes. Furthermore, individuals within the criminal justice system may themselves be biased and treat cases accordingly. Myths surrounding false allegations are particularly prevalent. Research has consistently suggested that false allegations constitute 3% of rape allegations; this is a similar proportion to the proportion of false allegations for other offences[16]. Nonetheless, in 2016 a study of 40 serving police officers in a UK force who frequently deal with rape cases found that officers believed between 5% and 90% of reported rapes to be false, ‘with an overall mean response of 53%’[17]. This undoubtedly affects the passage of cases through the justice system.

Ultimately, in line with the Declaration, the UK government has a positive duty to address rape myth bias in society[18]. However, until this is achieved, reform is necessary to mitigate its effect in the legal process.

Reform

Historically, rape law has epitomised jurisprudential misogyny. Legal reform has been likened to a Sisyphean struggle[19]. Documentation of the development is not within the remit of this article. In particular, the incontrovertible need to balance the fair trial rights of defendants with proposed reforms has been the subject of significant debate and judicial wariness[20].

Reform following the adoption of the Declaration has achieved some success. Crucially, the complainant’s experience of the justice system is reported as markedly improving[21]. This is evidenced most notably in the increased reporting of sexual violence[22].

There has also been some progress aimed at mitigating rape myth bias in juries. The Court of Appeal has accepted that ‘a judge may give appropriate directions to counter the risk of stereotypes and assumptions about sexual behaviour and reactions to non-consensual sexual conduct’[23]. Specimen directions are provided in the Crown Court Bench Book[24] with passages endorsed by the Court of Appeal[25].

However, attrition has not been considered sufficiently through the lens of rape myth bias. This is highlighted in the recent HMCPSI report.

Rape myths and the CPS

The HMCPSI report notes that ‘historically, the successful prosecution of rape cases has been hampered by myths and stereotypes’[26]. In 2015 an independent review into the investigation and prosecution of rape in London analysed prosecutor case files. It found numerous examples of how if a victim’s behaviour deviates ‘from the common understanding’ of post-assault behaviour, cases were dropped because “a jury might find it hard to convict of this count”[27].

In November 2019, following a Law Society Gazette investigation, BBC Newsnight published evidence suggesting that, from 2016, prosecutors were given a ‘hidden rape conviction target’ of 60%[28]. Conviction targets are dangerous as they propel prosecutors to bring only the strongest cases. This assumes and internalises rape myth bias.

The HMCPSI report suggests that the recent decline in charging decisions is due to evidential difficulties inherent in rape cases, underfunding, and lack of resources[29]. The CPS has also sought to apportion blame to a decline in police referrals[30]. This does not sufficiently address the one third decline in charging decisions, or the fact that CPS decisions to prosecute rape are now at their lowest rate on record, having fallen by 51% over 5 years[31]. While the problems highlighted in the HMCPSI report are relevant, they offer an inadequate and incomplete analysis of the causes of attrition and the decline in referrals. This has led the End Violence Against Women (“EVAW”) Coalition to warn that ‘rape is being effectively decriminalised’[32].

The EVAW Coalition have recommended that the Criminal Justice Board take the unusual step of rejecting the HMCPSI report[33]. The EVAW Coalition’s criticism was partly based on the allegation that the CPS has taken an increasingly ‘risk-averse’ approach in the prosecution of sexual violence offences. This would be unsurprising considering the collapse of a number of trials in late 2017, which publicly highlighted CPS disclosure failings. The EVAW Coalition response also alleges that the HMCPSI report fails to sufficiently and impartially investigate current prosecutorial practices[34].

The principal recommendation of the HMCPSI report is a further inspection at a later date[35]. There have been a significant number of reviews and inspections in the 25 years since the adoption of the Declaration, not least the current ‘end to end’ review. Further rhetoric is, at best, ‘deeply inadequate’ and is necessitated only because ‘the findings do not adequately address the issues HMCPSI was asked to examine’[36]. The report fails to consider the effect of rape myth bias.

The EVAW Coalition is presently bringing a judicial review against the CPS, on the basis that ‘CPS leaders have quietly changed their approach to decision-making in rape cases, switching from building cases based on their ‘merits’ back to second-guessing jury prejudices’[37]. Harriet Wistrich, Director of the Centre for Women’s Justice, who is bringing the judicial review for the EVAW Coalition noted its evidential basis:

‘We have undertaken a major research and evidence gathering exercise and have presented a large mass of compelling evidence from a range of sources, including expert statistical analysis, whistle blowing testimony, a dossier of 20 cases and accounts from police and frontline advocates, which together show that a small cultural shift at the top of the CPS has had a butterfly effect leading to the devastating changes.’[38]

The CPS is a pinch point of attrition. The HMCPSI report highlights a failure to contextualise the attrition rate within a patriarchal society and justice system. This is particularly concerning given the CPS’ previous rhetoric surrounding rape myths and must be scrutinised against the backdrop of a global rollback on women’s rights. The UK response to the upcoming Convention on the Status of Women notes that opposition to women’s rights ‘appears to now be more coordinated, better funded and able to mobilise more efficiently than ever before’[39].

The #MeToo movement and the inevitable backlash it has engendered, particularly in relation to allegations which have not resulted in criminal convictions[40], highlights the importance of the court in wider societal responses to rape. As noted by Olivia Smith, author of ‘Rape Trials in England and Wales’ which presented the results of 13 months of court observations, ‘if the courts take rape seriously, society follows’[41]. The inverse of this statement is also true. The CPS must continue to be held to account for its decisions relating to the prosecution of rape cases; the media and women’s rights organisations are pivotal in this task.

Rape myths and juries

Research on rape myths with real jurors, as opposed to mock jurors, has recently been commissioned[42]. Preliminary findings indicate that legal reform and education initiatives have achieved some success. However, as explained by Sir Brian Leveson in a recent lecture:

‘There are some factual issues in respect of which a substantial proportion of jurors are uncertain what to believe. For example, we know that most people who are raped are raped by someone they know – not a stranger. And while the research found that the majority of serving jurors know this is the case, just under a third said they were not sure about it. Further, we also know from psychological research that a person may not always be visibly upset when they are asked to recount a traumatic event like rape. But the research found that over a third of serving jurors were not sure about this.’[43]

In 2018 a petition to Parliament for ‘all jurors in rape trials to complete compulsory training about rape myths’ was signed by over 15,000 people[44]. There is widespread support in Northern Ireland for the proposal to present the jury with a pre-trial video[45]. This video would provide objective and standardised information aimed at defusing rape myths. A pilot scheme of this has commenced in England: ‘early indications are that such information can help to reduce the number of jurors who are not sure about these factual issues’[46].

This proposal is one among many potential developments aimed at mitigating jury bias. The long-term solution of public education on rape myths may eventually eradicate the need for juror education. However, for the time being, a multi-faceted programme of juror education, including jury directions, is an appropriate way forward.

Conclusion

Since the adoption of the Declaration attrition has worsened in the UK. The justice gap evidences a failure of law and policy to prosecute rapists. Such a failure stems in part from insufficiently tackling rape myth bias within society and the criminal justice system. Education programmes for jurors are one potential short-term solution. A pre-trial video is currently being piloted in England. However, concerningly, recent CPS decisions suggest a move away from recognition of rape myth bias. The CPS must continue to be held accountable for prosecutorial decisions. Ultimately, the UK has a positive duty to mitigate rape myth bias in society.

Grace Cowell is a pupil barrister at One Pump Court in London. She is a member of the Haldane Feminist Lawyers and an executive member of the Haldane Society of Socialist Lawyers. Her LLM dissertation considered methods of mitigating rape bias injuries.

[1] UN Women, ‘Summary Report: The Beijing Declaration and Platform for Action Turns 20’ (UN Women 2015) 20

[2] Government Equalities Office, ‘Beijing+25 National Report’ (UN Women 2020) 33

[3] HMCPSI, ‘2019 rape inspection’ (HMCPSI 2019)

[4] Kelly and others, ‘A gap or a chasm? Attrition in reported rape cases’ (Home Office 2005) 40

[5] CPS, ‘Violence Against Women and Girls Report 2018-19’ (12 September 2019)   <https://www.cps.gov.uk/sites/default/files/documents/publications/cps-vawg-report-2019.pdf> accessed 24 February 2020

[6] CPS, ‘Key Measures 2018-19’ (April 2019) <https://www.cps.gov.uk/key-measures> accessed 24 February 2020

[7] Office for Criminal Justice Reform, ‘Convicting Rapists and Protecting Victims – Justice for Victims of Rape: A Consultation Paper’ (Home Office 2006) 18

[8] HMCPSI (n 3) 7

[9] Office for National Statistics (ONS), ‘Sexual offending: victimisation and the path through the criminal justice system’ (Home Office 2018) 11

[10] Kelly and others (n 4)

[11] HMCPSI (n 3) 7

[12] CPS, ‘Rape and Sexual Offences – Chapter 21: Societal Myths’ (1 March 2018) <https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-21-societal-myths> accessed 24 February 2020

[13] CPS (n 12)

[14] Sir John Gillen, ‘Gillen Review: Report into the law and procedures in serious sexual offences in Northern Ireland’ (Department of Justice 2019) 211-212

[15] Jennifer Temkin and Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Hart Publishing 2008) 13

[16] Kelly and others (n 4) xi; Rt Hon Dame Elish Angiolini, ‘Report of the Independent Review into The Investigation and Prosecution of Rape in London’ (CPS 2015) 38

[17] Lesley McMillan, ‘Police officers’ perceptions of false allegations of rape’ (2016) 27(1) Journal of Gender Studies 9, 10

[18] UN Women (n 1) 55

[19] Clare McGlynn, ‘Feminist activism and rape law reform in England and Wales: A Sisyphean struggle?’ in Clare McGlynn and Vanessa E Munro (eds), Rethinking rape law: International and comparative perspectives’ (Routledge 2010) 139

[20] Sir Brian Leveson, ‘Criminal Trials: The Human Experience’ (UCL 13 June 2019) 12 <https://www.judiciary.uk/wp-content/uploads/2019/06/Sir-Brian-Leveson-UCL-Valedictory-lecture.pdf> accessed 24 February 2020

[21] ONS (n 9) 12

[22] Government Equalities Office (n 2) 33

[23] D [2008] EWCA Crim 2557

[24] HHJ Martin Picton and others (eds), ‘The Crown Court Compendium, Part 1: Jury and Trial Management and Summing Up’ (Judicial College June 2018) <https://www.judiciary.uk/wp-content/uploads/2016/06/crown-court-compendium-pt1-jury-and-trial-management-and-summing-up-june-2018a.pdf> accessed 24 February 2020 20-1

[25] Miller [2010] EWCA Crim 1578

[26] HMCPSI (n 3) 10

[27] Angiolini (n 16) 132

[28] Melanie Newman, ‘Hidden rape conviction target revealed’ BBC Newsnight (13 November 2019) <https://www.bbc.co.uk/news/uk-50406598> accessed 24 February 2020

[29] HMCPSI (n 3) 10

[30] CPS (n 5) 15

[31] EVAW Coalition, ‘Statement CPS VAWG Report 2018-19’ 1 <https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/Statement-CPS-VAWG-REPORT-201819-.pdf> accessed 24 February 2020

[32] EVAW Coalition (n 31) 1

[33] EVAW Coalition, ‘Response to HMCPSI rape inspection report, December 2019; expression of serious concerns’ <https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/EVAW-Coalition-Response-to-HMCPSI-Rape-Report-Dec-2019-FINAL.pdf> accessed 24 February 2020

[34] EVAW Coalition (n 33) 7

[35] HMCPSI (n 3) 20

[36] EVAW Coalition (n 33) 6

[37] EVAW Coalition, ‘EVAW commences Judicial Review proceedings against Crown Prosecution Service for failure to prosecute rape’ (24 September 2019) <https://www.endviolenceagainstwomen.org.uk/womens-groups-commence-legal-proceedings-in-judicial-review-against-crown-prosecution-service-for-failure-to-prosecute-rape/> accessed 24 February 2020

[38] EVAW Coalition (n 37)

[39] Government Equalities Office (n 2) 8

[40] Olivia Smith, Rape Trials in England and Wales (Palgrave MacMillan 2018) 7

[41] Smith (n 40) 2

[42] Leveson (n 20) 14

[43] Leveson (n 20) 14

[44] UK Government and Parliament, ‘All jurors in rape trials to complete compulsory training about rape myths’ (17 July 2018) <https://petition.parliament.uk/petitions/209573> accessed 24 February 2020

[45] Gillen (n 14) 212

[46] Leveson (n 20) 15