Why women who report rape fall foul of a harsh criminal justice system
Afua Hirsch, legal affairs correspondent
guardian.co.uk, Friday 26 November 2010 21.00 GMT
The criminal justice system is flawed, and is failing to protect the victims of rape adequately.
It's hard to believe that the views of a 17th-century jurist could have any place in the modern law on rape. Sir Matthew Hale was not enlightened even for his time, with his view that "[a] husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract".
But Hale's rule remained the law until 1991, when the House of Lords at last acknowledged it was "no longer acceptable". Twenty years from now we may well look back on the way today's courts approach rape victims with similar disbelief.
Sarah's story, published by the Guardian today, is a sobering example of all that is wrong with the way women are treated by the criminal justice system. The facts of her case are extreme – allegedly a victim of prolonged domestic abuse, she withdrew her case under pressure from the man who she says raped her. Prosecutors have defended their decision to proceed with charges against her, saying that she "actively worked to derail the trial" against her husband, even though their own guidance says that women who withdraw evidence in rape cases are often suffering from pressure or intimidation.
Sarah's conviction and imprisonment is far from isolated. A solicitor representing a woman charged with falsifying rape allegations has told me she is aware of 30 other women in similar positions. Even though few of the 8,000 people prosecuted each year for perverting the course of justice are thought to be complainants in rape cases (there are no statistics to confirm the numbers), lawyers representing these women are convinced their cases show a hardening of attitudes against women who report rape.
Another woman held, as Sarah was, in Styal prison was six months pregnant when she stood trial for making false rape allegations earlier this year.
Despite medical evidence in her case which one expert said made it "unlikely" her injuries could have been self-inflicted, she was found guilty and sentenced to three years' imprisonment, condemned by a judge for her "wicked" act. There is no question that false rape allegations are capable of damaging lives – I remember defending a young man who spent almost a year in jail when he should have been starting university, because of rape allegations which the complainant eventually admitted were untrue. The effect on his life is immeasurable. But the idea that society is faced with competing and mutually exclusive objectives, of on the one hand protecting innocent people from false allegations and on the other protecting victims of rape, is completely false. Providing fair trials for men accused of rape does not entail jailing their accusers. Ironically, one of the reasons judges give for dealing so harshly with women charged with making false allegations is their desire to protect genuine victims. "False complaints of rape necessarily impact upon the minds of jurors trying rape cases," a crown court judge said last year, sentencing a rape complainant to two years in jail.
Jury prejudice is often cited as one of the reasons that the UK lags so far behind the rest of Europe in its rape conviction rates. In 2009, 59% of people formally charged with rape were convicted. But the majority of those pleaded guilty, with far fewer found guilty by a jury.
The further back you go, from ultimate court proceedings to the act of rape itself, the less impressive the statistics. Only 6% of reported rapes result in a conviction on a charge of rape, and a significant number of those accused are never charged at all. And reported rapes are themselves in a minority. Figures from the Department of Health suggest that a woman is raped every 10 minutes. The vast majority – an estimated 95% of the rapes that actually take place in the UK – are never reported in the first place.
One reason is that an adversarial court system does not encourage vulnerable or traumatised people to come forward. Far from the stereotypical view of slighted women quick to make false accusations, the prospect of being forensically examined by doctors, then cross-examined by barristers, is enough to deter many genuine rape victims from the prospect of justice altogether.
There is little hope of this improving. Although the government has just announced £3.2m to improve and expand Sexual Assault Referral Centres, on the basis that these helped increase rape reporting by 16% last year, other specialist services for rape victims hang in the balance.
The Crown Prosecution Service says it is committed to ensuring specialist rape prosecutors continue to be available, but cuts are certain in all areas of criminal justice, and the exact plans for individual areas in England and Wales have yet to be revealed. Court closures may force many victims to travel further away from home in order to give evidence.
Defence barristers, whose conduct in court is for many rape victims one of the most frightening aspects of reporting the crime, are more likely to be male and less diverse as a result of the continuing cuts to legal aid. The government frequently states that protecting the diversity of the legal profession is simply not its problem.
Meanwhile, women are still being failed by the criminal justice system in large numbers.
Apart from those criminalised because their rape allegations are not believed,women otherwise involved in crime are often there in part because of experiences of rape and violence. one third of all women offenders are the victims of rape.
In this context, it is ludicrous for the courts to think that they need to provide a strong deterrent for women who are contemplating making false allegations.
The criminal justice system has for centuries been highly effective at sending out one message: it is determined to treat women harshly.
Afua Hirsch is the Guardian's legal affairs correspondent
• This article was amended on 21 December 2010. The original said that 6% of reported rapes result in a conviction. This has been clarified.