Nobody would claim that rape is not a heinous and abhorrent crime. In principle it carries with it many complex and varied potentially unpleasant and worrying issues including breaches of fundamental human rights, coercion, denial of the right to give sexual consent (or not), degradation, the threat of – if not actual – physical violence and (last but not least) the mental effects, both immediate and long-term, upon victims as they cope with the trauma of the experience.
For decades campaigners on behalf of victims – and the rights of women generally – have complained about the gap between the number of rapes (and sexual assaults ‘anywhere along the scale’ for that matter) that de facto take place and the much smaller number that – having been investigated by the police and prosecution authorities – result in cases being brought to court, never mind those that ultimately conclude with guilty verdicts.
The recently-published Home Office statistics for England and Wales amply reinforce the arguments.
They show that more than 98% of reported rapes do not result in prosecutions.
In 2018 only 3.8% of sexual offences resulted in a charge or summons – the figure for alleged rapes was just 1.7%, down from 3.3% the previous year.
Charities in the fields also complain that the 2018 total of 57,000 rapes reported to the police are only a fraction of the real number because so many victims fail to report their assaults.
By any yardstick – even allowing for the saying there are “lies, damned lies … and statistics” – these are sobering figures.
Nevertheless, I am troubled by the campaign on behalf of victims of alleged rapes to the extent that it seems to be demanding, simply because of the lack of prosecutions (and indeed successful ones), that either the degree of proof required in a criminal case should be reduced and/or (preferably?) switched about-face so that an accused will be automatically found guilty unless he can persuade a jury ‘beyond a reasonable doubt’ that he did not commit the crime.
Let me be clear. I’m all for ensuring that people who commit crimes (howsoever great or small) should be called to account – and if necessary pay the price – for their actions.
In fact it wouldn’t surprise me in the slightest if, one day in the not too distant future, smart and visionary technological developments were to bring about the possibility of a highly cost effective and virtually fail-safe automatic justice system in all civilised countries.
Judging by the UK experience alone – only this week a lawyers’ think-tank group (whose details escape me as I type) came out with the statement that to all intents and purposes our entire legal system is “on its knees” – we could jolly well do with one.
Separately, we are also told that the prison system is creaking at the seams.
According to the 2016/2017 official figures, it costs an annual £3 billion to keep the England and Wales prison population of just over 81,000 incarcerated, which works out at an average of approximately £35,500 per prisoner, or (on my calculator) £683 per week.
Let me fantasise for a moment.
Last week I had to accompany someone to a hospital appointment upon the outskirts of London.
For coronavirus reasons we were both sporting face masks as we approached the entrance and – as we went in, one at a time at a social distance, there was a chap in basic PPE garb standing at a desk who aimed (what here I’d describe as a ‘medical gun-type thingy’) at one’s forehead in order to check our temperature before we were allowed in – a bit like I understand they do these days at airports.
So let’s go forward to the year 2030, by when this technology has been developed to a stage where everyone accused of a crime turns up at a magistrates court, goes in, and has a similar ‘gun-type thingy’ aimed at their forehead … which then tells everyone in the vicinity whether or not the he or she is guilty of said alleged crime.
Those thereby pronounced innocent pass through a “green” door and swing round and out through the building exit, free to continue their lives.
Meanwhile those that are pronounced guilty are sent towards a “red” door … and thence downstairs to the cells and off to the nearest gaol designated to take them.
It would save a gallon and a half of everyone’s time and expense. What’s not to like?
However, at the moment we’re still currently in 2020.
Under the criminal law of England and Wales the principle that an accused is innocent until proven guilty rules.
To put it another way, if the prosecution cannot prove to a jury’s satisfaction that someone is guilty of what they’ve been accused, it’s not entitled to gain a conviction – end of message.
The latest “issue of the moment” is the data protection aspect of the police and prosecution in a criminal case – particularly one of alleged rape – having access to someone’s mobile phone data.
On a radio programme this week I heard a campaigner on behalf of rape victims waxing outraged about the invasion of privacy angle: her line was that it was a breach of human rights that a victim might be (or even had in the past been) told that – if she didn’t allow the police to investigate her phone calls with a tooth comb – they’d drop the case.
This was painted as wholly unreasonable and likely to result in even fewer victims of rape coming forward than they do now.
Had I been in the studio with the opportunity to comment, I’d have simply pointed out to the speaker that – for all sorts of reasons – the bringing of a criminal prosecution ultimately boils down to the issue of the probability of a likely successful case (and guilty verdict) being achieved.
The purpose of reviewing all the available evidence goes towards deciding whether to take a case to court, not least because all sorts of flak (and criticism of the prosecuting authorities) begins to fly if a prosecution fails because of some obvious fault in the evidence.
For example, if a victim’s phone data supports everything she claims about the rape incident, that would greatly assist a prosecution – and make the bringing of one more likely.
However, supposing immediately – or in the days after – after a female has allegedly been raped, her phone data demonstrates that she sent the supposed perpetrator a series of messages detailing how much she’d enjoyed their ‘date’ (and indeed perhaps also their very-much-mutually-consented rampant session(s) in the sack on the night in question), then that’s going to have a different effect on the issue of whether a prosecution goes forward.
Because any jury seeing (or listening to) that evidence is unlikely to bring in a guilty verdict.
Which inevitably means that a prosecution is more unlikely to be brought, simply because it would be a waste of time and money.