Why is the conviction rate for rape so low in the United Kingdom - Dissertation Example

?Why is the conviction rate for rape so low in the United Kingdom? Table of Contents Table of Contents Introduction 2 Definitions and Types of Rape3 Rape & Prosecution Rates in the United Kingdom 3 Literature Review 5 Non-Reporting of Crime 5 Prosecuting Victim Withdrawal 6 False Allegations of Rape 7 Psychology as Evidence 8 Analysis of Victim Character 9 The Effect of the Media 11 Statutory Rape 12 Analysis & Critical Reflection 12 Bringing the Case to Trial 13 Rape on Trial 13 Conclusions 15 References 16 Introduction Rape is an infamously difficult crime to investigate for a number of reasons. Perhaps the main reason is that there is often little or no physical evidence, as there are in other crimes, leading to a situation where the trial is essentially reliant on the word of two separate individuals1. More often than not, the prosecution and defence parties know each other2, making the witness accounts more likely to involve some bias. Despite this, it is suggested that the United Kingdom has some of the best training in the world for officers dealing with rape cases3, with a huge number of restrictions and guidelines in relation to these cases. However, the conviction rate for rape still remains extremely low4, especially when compared with that of other physical crimes. The Association of Chief Police Officers lead for rape has suggested that this might be because the training is often ignored, perhaps due to the personal nature of rape cases5. The purpose of this investigation is to critically review the available literature on the topic to ascertain further reasons why this conviction rate is still so low for cases of rape. This will provide material to evaluate the situation for rape victims (and those falsely accused of rape) in the U.K. and perform a critical reflection on the subject. This material will be used to show that it is the very nature of rape that ensures the conviction rate remains at this low percentage, although changes in procedure may help the proceedings in some cases. Definitions and Types of Rape Perhaps something that makes cases of rape more likely to go unprosecuted is that the definition of rape changes between individuals and between organizational bodies. This could have a number of consequences, not least being that jurors may have differing opinions that make prosecution difficult. The United Nations (UN) definition of rape is ‘sexual intercourse without valid consent’6, which in the United Kingdom includes minors under 16 years of age who are not legally able to give ‘valid consent’. The World Health Organization (WHO) suggests that rape is ‘physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object’7, again focusing on penetration being the definitive act. Some feel that this is exclusive of those who experience sexual misconduct without penetration. Within the United Kingdom, the Sexual Offences Act 2003 defines rape as an act which can only be carried out by a man, must involve penetration and this man must not reasonably believe that there is consent.8 This is the definition that will be used throughout this essay, as it is useful from a legal context, despite the social issues that it may provoke. Rape & Prosecution Rates in the United Kingdom The Home Office publishes statistics on rape cases, which provide a useful basis for any research on rape in the United Kingdom. The following figures do not include statutory rape; all the cases reported here are by male and female victims aged between 16 and 59. This gives the rate of rape and attempted rate for 2006 as about 0.5% of women in the 16-59 age group, or one in every 200 women9. When cases of attempted rate are excluded, the rate remains high at 0.3%. Overall, the best estimate for sexual assault crimes was that it affected It was reported that 53% of cases of serious sexual assault against women were caused by a partner (a complicating factor that will be discussed below), whilst in men the most common perpetrator was someone else known, at a rate of 58%. Interestingly, 28% of male and female victims of serious sexual assault were under the influence of alcohol at the time of the most recent offence10, another complicating factor to be discussed below. These statistics show that only 11% of victims of serious sexual assault actually reported the crime to the police, and 40% of victims did not tell anyone about their experience11. If the rate of 0.5% is used, 85,000 people were victims of rape in the year 2006. In the same year, fewer than 800 people were convicted of rape12, a rate of less than 1%. This is the lowest of any crime reported in the statistics by the Home Office. It is perhaps more accurate to use the 0.3% rate for actual rape, giving a value of 51,000 victims of rape in the same year. This gives a rate of conviction of roughly 1.5%, still extremely low. Other figures show that the rate of conviction has decreased between 24% in 1985 to fewer than 9% in 1997, despite the fact that previous estimates had suggested that women’s rights movements would lead to an increase in convictions13. These figures highlight the importance of understanding the reasons behind these low conviction rates to further advance the usefulness of the law. Literature Review The following literature review will examine some of the reasons for the low conviction rate for rape cases found within previous works. Some articles will be used more than once if they cover more than one suggestion for the low conviction rape, whilst others focus on one topic. The purpose of this literature review is to provide a basis for the later critical analysis on the low conviction rates for rape in the U.K. Non-Reporting of Crime Home Office statistics found that only 11% of rape victims report the crime to the police. 14Evidently, there can be no prosecution without a case, and thus perhaps the low conviction rate in the U.K. could be attributed to factors outside the law, including rape psychology. However, suggestions have been made that police approachability could have a positive effect on the number of sexual crimes reported15, and many rape victims report that they are intimidated by the police proceedings16. It has been suggested that those who are attacked by a stranger, such as those involved in violent rape crimes, are more likely to report the incident because they see themselves as victim of a true crime17. Over half of rape cases involving both men and women are perpetrated by people who are known to the victim18, and these victims cite that they do not identify with the persona of ‘true victim’ and may be ‘exaggerating’ their psychological reaction19. Police officers were also found to distinguish between ‘true’ and ‘dubious’ rape20. It can be suggested, therefore, that in many cases the nature of rape may be more important than any legal issue concerning the lack of prosecution. Prosecuting Victim Withdrawal Using figures from Lea et al21, it has been suggested that 38% of rape cases were dropped because the prosecuting victim retracted their allegation or refused to participate in the criminal prosecution. Without an allegation, there is no case, and therefore the perpetrator cannot be convicted. Gregory & Lees find that the victim withdrawing their complaint is the most common reason why no crime report was filed by the police. Various reasons are given for this, such as ‘victim adamant that no investigation take place’22. This does not necessarily suggest that the accused rapist is not guilty; some victims may prefer to ignore the situation on further thought. Reports have also shown that victims of rape often feel high levels of shame and guilt23, which may lead them to remove themselves from legal proceedings. The Home Office suggests that as many as 40% of rape victims do not report the crime to anyone24; many feel that the crime is too personal or embarrassing to discuss. This is relevant here, as even if the case was reported to the police a victim may feel as though legal proceedings and the constant repetition of the incident for evidence may be too embarrassing or strenuous and withdraw from the proceedings25. It is also worth noting that the rape incident will have caused the individual concerned a great deal of mental anguish, which is going to be repeated throughout the legal process26. As with the non-reporting of rape crimes, this may be more heavily influenced by psychological factors than legal. False Allegations of Rape This is particularly complicated issue, because false allegations of rape are made, and occur for a multitude of reasons. One study by Kanin found that false rape allegations constituted 41% of all rape allegations in the sample surveyed, which is an incredibly high proportion27. The current coalition government has suggested that the rate of false allegation might be closer to 8 to 10%28, still an incredibly high proportion. It is this claim that has led to the recent development of anonymity for men accused of rape, who are afforded privacy until proven guilty29. However, the problem here lies in that so many cases of rape go unprosecuted for many reasons and become termed a ‘no crime’, which can distort the figures, causing other issues to be mistaken for a false allegation30. It has been suggested that the rate of false allegation may be much lower than initially thought, but this enduring thought has caused many to be critical of those in the victim position. The fact that false allegations of rape are made has meant that law enforcement has to be particularly critical, especially due to the lack of evidence in any cases. However, at times this could be too critical and many cases are dismissed at a very early stage in the prosecution process because of this disbelief aspect31. In some cases, the claim of a false allegation could be due to differences in opinion on the true definition of rape (as described above); the individual may feel that they have been raped when police or legal proceedings may find that they are not32. Additionally, an allegation of rape is likely to be thought of as false for a number of reasons, many of which are beyond the control of the victim. These include, but are not limited to, ‘discrepancies in the victim’s story’, ‘victim’s drunkenness’ ‘lack of cooperation by the victim and/or witnesses’, ‘victim’s uncertainty of events’, and finally ‘victim’s being thought a prostitute’33. Many of these are due to lack of evidence or judgements on the character of the victim. Psychology as Evidence As there is often a lack of physical evidence in rape trials, other methods of proof are often used to provide information to judge and jurors. In some cases, this can be psychological evidence, which comes in many different forms. For the victim, this can include a full psychological work-up to see if there are inherent character traits that may lead this victim to provide a false accusation34. Additionally, a lie-detector test may be used when the victim is recounting the scene from their perspective35. A psychologist or psychiatrist may also examine the victim for signs of post-traumatic stress syndrome, or other psychological evidence that a traumatic situation (i.e. rape) has occurred. The obvious problem with using these methods as evidence is that they are all based on subjectivity, and no lie-detector test has been proven to be 100% effective36. If the character report conflicts with how the victim presents his or herself to the jurors, it is likely to be dismissed as false due to the subjective nature of the result37. Symptoms of post-traumatic stress disorder or any psychological reaction to the rape itself can be faked, and trained professionals are not guaranteed to recognize these issues. Reports of flashbacks are common in victims of sexual assault38, but these have to be reported by the victim and cannot be ‘seen’ in court. This can be seen as a false allegation of rape, although faking psychological symptoms may not necessary mean that the allegation itself is false. The lack of evidence for rape trials and the use of subjective psychological evidence is cited as being one of the reasons why these cases do not lead to a prosecution, not just in the U.K. This leads to a further case of subjective evidence which is often used, the analysis of victim character. Analysis of Victim Character Perhaps the one thing that sets rape far apart from other types of crime in court is that the character of the victim needs to be taken account. This is to ensure that false allegations have not been made, either out of regret or as an attack on the character of the accused39. Approximately 3% of the time, a rape case is thrown out of court because the patient is deemed inconsistent40. Inconsistency in evidence is not unheard of with other crimes failing to lead to a prosecution, but with any other crime that could lead to post-traumatic stress syndrome (PTSD) any inconsistencies are usually attributed to this factor41. However, in the case of rape trials, inconsistencies combined with the character of the victim may cause police, jurors and prosecutors to feel uneasy about a conviction. If a victim is deemed to be inconsistent with the evidence they provide, such as altering the story, it may be judged that their allegation is false and the case thrown out of course. Many police officers feel that a woman giving evidence in a rape case should provide the same story to the doctor, police and in court; consistency is often valued highly42. Psychological studies have found that inconsistencies are likely in response to traumatic events, because the brain makes alterations as a coping mechanism43. Despite this evidence, the likelihood of inconsistency is not worked into police guidelines on sexual violence44, and thus inconsistency can be used as a negative character trait in order to prove a false allegation. In this situation, a case is likely to be thrown out of court and the perpetrator will remain anonymity. Sex workers often face problems in sexual violence cases. The majority view is that sex workers should expect some sexual violence and perhaps be more mentally prepared for the consequences of rape, which carries through to jurors. Some may claim that sex workers cannot be raped, because they have chosen to engage in work where the sexual partner is not desirable to them45. However, if the definition of rape used within United Kingdom law is used, then sexual workers are justified in their victim status. Although the sexual partner may not be chosen by these individuals, consent is still required46. Sex workers often also experience difficulty because of their participation in criminal sexual activity, which makes it difficult to process a rape case against them. The Effect of the Media Rape cases are popular with the media, because questions about traditional gender roles can be explored and every case seems to have two strong competing sides47. In many cases, the character of the victim is exposed and analysed to an even greater degree than in the courtroom. Women in particular are judged harshly on their clothing, career, and sobriety48, with women who are demure being more likely to be portrayed as a victim than sex workers or inebriated women49. Interestingly, cases where an individual (male or female) has been raped by her spouse or significant other are routinely ignored by the media50, except in very special cases. Occasionally, a rape case will be publicised because of the moral dilemma is posed, such as the case involving consent on the condition of condom use51, or where a woman has not explicitly given consent52. In these cases, the woman is occasionally demonized, and suggestions are made that she should not be in this position53. The effect of the media here can only be speculated upon, but due to the tendency towards these negative portrayals, it could be suggested that the media is increasing the number of women who do not report rape cases. This leads to a lower prosecution rape, and can again confuse many as to the position of the law with respect to explicit consent and victim character. Statutory Rape The literature review above has mostly focused on cases of rape reported by women and men between the ages of 16 and 59, excluding cases of statutory rape. Statutory rape also has a historically low conviction rate54, but there are different reasons as to why these cases do not often lead to a prosecution. When the victim is aged 14 or over, cases where consent has been given (despite the fact that consent is not legal at this age) are often not brought to trial. This is especially common of cases involving two minors under 16, who are unlikely to experience any significant psychological trauma from the incident55. The line is less clear when accounting for cases of those who have verbally consented (without the legal ability to do so) to having sex with someone over 16, especially if the accused is much older than they are56. It can be said that cases of statutory rape do not often have the same legal and personal consequences and thus have been generally excluded from the following analysis. Analysis & Critical Reflection Bringing the Case to Trial The lack of prosecution in rape cases can be split into two major areas; bringing the case to trial and the reaction in court. As outlined above, many rape cases do not make it as far as the court room for a number of reasons. It was shown that only 11% of women who acknowledge being raped report the crime to the police57; only 11% of rape cases can theoretically be brought to trial. Even after the woman has reported the crime, many refuse to give evidence or do not wish to prosecute, again reducing the number of rapists that can be successfully prosecuted. In many cases, these two elements seem to be down to a fear of being ‘judged’, which is not unfounded because of the need to judge victim character in many rape cases58. This psychological aspect of rape is unlikely to change with any adaptation in the law, although using sexual education programs has been shown to increase the number of reported rape cases59. Additionally, providing a sympathetic front in the police has been shown to make victims feel more comfortable and more likely to continue with their allegations. Men who are victim of sexual violence often struggle more than women, perhaps because of the social stigma of homosexuality and the perceived need for ‘strength’ in the male60. Again, these issues are implicit within rape and society, and are difficult to discuss within a legal context. Rape on Trial What is perhaps more unexpected is how often rape trials fail in court. It has been shown that this is due to several reasons. One major aspect of rape trials, as outlined above, is the criticism and analysis of the victim’s character, something not often analysed in other types of crime61. This is perhaps what puts many individuals off before the case has a chance to get to this stage, because of the psychological pressure associated with this judgement. Additionally, there are many times when this judgement can be wrong, lead to a miscalculation and often lead to the accused walking free without any real evidence. This is particularly true in the case of sex workers62, but those suffering from PTSD who show inconsistencies or even those who simply give a bad impression to police or in court are also at risk. The reason for this is that the definition of rape is still questionable in the eyes of many63, and as this gets wider (with the aim of protecting individuals from more types of sexual violence) this will become more open to question. For example, if the victim was under the influence of alcohol or drugs, this is often taken to be a negative aspect of the character and often the case is dismissed because consent can be hard to define in this context. Other aspects of the situation are also heavily scrutinised before the rapist can be prosecuted, another hurdle that reduces the conviction rate. If the victim knows the accused, then the prospect of ‘revenge’ must be considered64, again calling the character and history of the victim into question. ‘Revenge’ is usually considered an option in cases where the accused is an ex-boyfriend, particularly if associated with domestic violence against the victim65. Additionally, if the case concerns two individuals in a relationship, the problem of ‘implicit consent’ is often found in rape cases66, again meaning that some of those accused walk free because of legal complications. Conclusions The evidence above shows that there is no one reason why the prosecution rate for rape in the U.K. is so low, but a multitude which is found in different levels in every case. There are two main areas in which a rape case fails, and this is before the trial (the majority) and during the trial. Those cases that fail before the trial do so because of how rape makes the victim feel, and trouble with distinguishing between ‘real’ and ‘dubious’ rape. Some victims may not feel like a real victim, particularly if prosecuting against a boyfriend or husband. The first line of defence is the police, who often echo the fears of the victim and in many cases can be too judgemental about the nature of the crime67. Many factors also influence rape trials whilst they are in court. Jurors often rely on very little evidence and thus rely on personal instincts about victim character, which is problematic in the case of sex works and those suffering from PTSD. It seems likely that this low conviction rate will remain as an increasingly wide definition of rape leaves some jurors sceptical and law enforcement critical. References Anon, 2008. “Why is conviction rate so appallingly low?” The Guardian. Barbaree, H.E. & Marshall, W.L., 1991. The role of male sexual arousal in rape: Six models. Journal of Consulting and Clinical Psychology, 59(5), p.621. Bohmer, C. & Blumberg, A., 1974. Twice traumatized: The rape victim and the court. Judicature, 58, p.391. Campbell, R., 1998. The community response to rape: Victims’ experiences with the legal, medical, and mental health systems. American Journal of Community Psychology, 26(3), pp.355–379. Carroll, J.L., 2009. 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