We need radical reform on rape law – now!

“What is required is a total overhaul of the justice system,” says Emma Dubar, trainee solicitor at Gordon Dean Solicitors Picture: Gordon Dean Solicitors (Image: Archant)

It is a sad fact that most rape offences are never even reported to the police – but numbers of reported cases are increasing rapidly, partly as a result of the #MeToo movement. So it is a major shock to learn that rape convictions in England and Wales fell to a record low in 2019-20, despite an increase in the number of victims coming forward.

Crown Prosecution Service (CPS) statistics demonstrate that the number of reported rape cases rose to 55,130 in 2019-20, an increase of approximately one third compared with just three years earlier, while only 2,102 prosecutions and 1,439 convictions were recorded. These figures reveal that the CPS prosecuted and convicted fewer people for rape between 2019-20 than any other year on record.

On August 10 it was revealed that Prime Minister Boris Johnson’s crime and justice taskforce is planning an intervention by setting targets and empowering police to refer rape cases to the CPS. It is hoped that this will bring more rape cases to trial in an effort to address the shameful decline in rape prosecution figures.

However, government-imposed targets for rape prosecutions will not make any difference. To even begin serving justice in this area of law, we need fundamental and radical reform. What is required is a total overhaul of the justice system and a combination of both criminal and civil cases being tried together.

Criminal law procedure is failing

Even before the coronavirus outbreak, the UK justice system was collapsing under the weight of cases and lack of resources, while disputes over the admissibility of evidence such as phone records has obscured processes.

As the law stands, to be successful in a criminal prosecution of this kind, the jury needs to be convinced beyond all reasonable doubt that the defendant raped or sexually assaulted the victim. The burden of proof is almost too high a threshold for the victim to meet. It seems near inevitable that a perpetrator of rape or sexual assault will get away with it.

The most common problem is not that a sexual act occurred, but whether it was consented to by the victim. Unfortunately, the law does not assess whether it is beyond all reasonable doubt that the victim consented. The reality is that the jury must only be convinced that the perpetrator did not believe the victim consented. From this you can see how easy it is for the jury not to convict.

Many victims and perpetrators were intoxicated when the sexual act took place, which automatically raises doubts over consent. Furthermore, if the victim does not seek medical attention soon after the incident, most credible physical evidence is eliminated. Therefore, the case often comes down to one person’s word against another.

The trial is usually traumatic for the victim, as they will have to face the person that assaulted them and be questioned, while an acquittal can be devastating as the victim is effectively told that their attacker did not do this to them.

Benefits of civil law procedure

Many who choose not to report their rape or sexual assault say it is because they think the police will not do anything. But there is an alternative: victims are advised to consider a civil claim for rape or sexual abuse, including trespass to the person, assault, battery and false imprisonment.

The prospects of a conviction in a civil case are significantly higher because the burden of proof becomes a ‘balance of probabilities’. The judge – not the jury – must be convinced that an assault occurred, but does not need to be absolutely sure. Claimants will still need good evidence to prove a serious offence has occurred, as a judge will not convict lightly just because the threshold is lower.

The procedure tends to be significantly less traumatic for the victim compared with a criminal trial as most civil claims are settled through negotiation before the final hearing, meaning the victim is not required to attend court.

It is always important that a complaint is made to the police, as evidence such as statements and medical examinations will be taken. This greatly increases the chances of a successful conviction in a civil case as the early statement from the victim will be the best account of evidence.

Even on the same evidence, a perpetrator is far more likely to be convicted under civil standards of proof regardless of the fact that they were found not guilty under criminal law. A recent case at the end of 2019 in Ireland demonstrates this, whereby a jury acquitted a defendant of a rape charge in the criminal courts. The victim then pursued through the civil courts, and it was found that on the balance of probabilities she had not given consent and was therefore a victim of rape. She was subsequently awarded £80,000 in damages.

The civil court procedure is still lengthy and the victim will need to give in-depth evidence once again in the civil courts, but the level of evidence does not need to prove beyond all reasonable doubt – it simply needs to show that an assault was more likely than not.

The much-needed reform

Two standards of proof co-exist separately and are currently applied separately in criminal and civil law. However, what if both standards were applied in the same case and the jury determined the issue accordingly?

The jury could simply apply reasonable doubt in the criminal case and the perpetrator will be found guilty or not guilty. I suggest that the jury should then be asked the legal question on the balance of probabilities. A new verdict of civil liability and guilt will consequently be given from the jury under the lower threshold. This will clearly distinguish between the two thresholds and the two cases of criminal and civil. The juries will be forced to consider the two standards of proof in their analysis and this distinction will be in their minds from the outset. If the two are able to be tried consecutively, why not jointly?

It makes sense to combat the two together and not waste court time and resources. All significant evidence used in the criminal trial which would ordinarily have been reused in the civil case will already be available to the jury, while the victim will avoid the enormous cost of legal representation in a separate civil case.

This is a radical change, but it is a necessary change. The overriding objective in civil cases is to deal with cases justly, fairly and proportionately. Criminal cases are founded on the concept of justice for all – including the accused. Having the jury determine both standards of proof in the same trial only contributes to these objectives and the accused’s access to justice is not infringed in any way. The right to trial by jury still remains, legal representation still remains, and a fair trial still remains.

Only by making this overdue and necessary reform can we begin to seek justice for rape and sexual assault victims.

To find out more or to show your support please contact administration@gordondeansolicitors.co.uk