How should Britain reform rape-trial laws?

Rape has long had the lowest charging rate of all crimes. To a degree this is inevitable. The crime is defined by the absence of consent, which can be tricky to establish. The accused and complainant tend to be the only witnesses. Reporting sexual crimes is often delayed, meaning no physical evidence. And in most cases the victim knows their attacker, making investigations exceptionally intrusive and upsetting—which is why more than half of those whose rapes have been recorded by the police withdraw from an investigation.

In recent years, however, a precipitous drop in the number of cases making it to court has suggested fresh failures in the criminal-justice system (see chart). In the year to March 2016 there were 3,910 charges for rape; in the year to 2022 there were 2,223. The number of rape convictions dropped from 2,689 to 1,733.

It is not clear why charges have fallen so far. Some reckon that changes to the way the Crown Prosecution Service (cps) decides whether or not to bring a case to court has played a part. Prosecutors have also become increasingly likely to ask to see everything on a complainant’s phone, “making an already distressing process feel even more intrusive”, according to one government report.

Reports of rape have increased exponentially, perhaps because the #MeToo movement has changed people’s understanding of it: police recorded 69,905 cases of rape in the year to 2022 compared with 36,334 six years earlier. Overstretched officers seem less likely to conduct thorough investigations. A big backlog of cases has meanwhile led to long waits for a court date. Knowing the ordeal is likely to drag on prompts some victims to give up before their attacker is charged.

Going to trial can be the worst—and most off-putting—part of the criminal-justice process. That insight lies behind a new consultation paper on sexual-offence trials published on May 23rd by the Law Commission, an independent body that reviews laws in England and Wales.

The paper suggests some changes to the law to tackle “myths” about rape that “filter through the breadth and depth of the criminal justice system”. They include the notion that rape always involves physical force; that victims will appear emotional when they testify; and that if a woman (not a man) has consented to sex before, she is likely to have done so “this time too”. Police who subscribe to such views may be less likely to encourage a victim to pursue things; a juror who holds them would seem less likely to find a rapist guilty.

Harriet Bland, a lawyer at the Centre for Women’s Justice, says such notions have long influenced the way the criminal-justice system treats rape. The use of personal documentation, including therapy notes, in investigations and trials is a particularly egregious example. “Rape is the only crime for which the victim’s credibility immediately comes into question,” she says.

The Law Commission’s recommendations include placing greater restrictions on the use of complainants’ personal records relating to their sexual behaviour. It suggests using experts to explain to juries how victims respond to sexual violence in ways that may seem counterintuitive. It also recommends that victims of rape receive independent legal advice to help them make informed decisions about how their evidence is used.

In Scotland political pressure to increase prosecutions has led to some controversial ideas. A new bill would allow the piloting of juryless trials for rape. Some victim-support groups have welcomed the idea; some lawyers say it threatens a defendant’s right to a fair trial. The idea has also been floated by the Law Commission. It has not yet recommended juryless trials for rape cases, but invites views on the idea. (The results of its consultation are expected next year.)

Some believe a focus on trials and juries misses the point. Though prosecutions have fallen, conviction rates for rape have increased, from below 60% in 2016 to around 70% today. That is higher than the rate for some other serious crimes. Recent research, meanwhile, suggests that the idea that juries are infected by “rape myths” may itself be erroneous. Establishing the degree to which prejudice affects any system is difficult. But efforts to protect rape victims from bias are worth making throughout the judicial process. ■

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