We’ll Never Solve The Rape Trial Problem And Not Just Because Men Are Pigs

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Nor is our rape trial problem because we inhabit a patriarchy, nor even because the underlying problem is purely about consent to an entirely legal activity. It is, obviously enough, legal to have sex – we don’t go around jailing mothers purely on the grounds that they must have bumped uglies at some point. The defining line between rape and not rape is that issue of consent. Yes, of course, non-consent should be a crime, is a crime and will continue to be one. But that doesn’t remove the problem in trying to work out, in a specific instance, whether that crime took place.

But to something more specific here. We have a challenge to the Crown Prosecution Service over the manner in which they are treating rape trials:

Crown prosecutors are dropping rape cases because of fears they will be lost due to juries’ prejudices about the women victims, campaigners claim as they mount a legal challenge to the “covert” policy. The UK-wide coalition of women’s organisations alleges the Crown Prosecution Service (CPS) has secretly changed its policy so that “weak” cases are abandoned to boost prosecution “success” rates instead of them being pursued on merit.

Well, our first comment here would be that “weak” and “not meritorious” are synonyms here. A good case is one that can be won, a bad one likely to be lost. So, there will always be marginal cases and at some point the decision whether to prosecute or not has to be taken. Sure, that line might be drawn in the wrong place but the basic decision will always be there.

The End Violence Against Women coalition (EVAW) cites a 23.1 per cent fall in the number of rape cases taken on by the CPS in the 12 months to 2017/18 from 3,671 to 2,822. This was despite a 16 per cent increase in police recorded rapes to 56,698. It said this meant that women now have a four per cent chance of their case being heard in court compared with one in five in 2014.

That’s the usual journalist drivel with numbers. There is no way that prosecutions were ever 20% of rape reports. They mean 5% presumably. And then there’s the legal idiocy there. Police don’t record rapes. They record allegations of rape. The rest of the system exists to try to sort through those allegations. Was a crime committed? Not always, no. While it’s possible to argue over how often false allegations do occur. It’s even possible that people claim that was a rape wasn’t, rather than being malicious. Then there’s, well, do we have someone we can prosecute? Not always possible with, say, stranger rape. Then there’s the, well, enough proof to be likely to gain a conviction?

That’s what the rest of the system, after the police recording of the allegation, is there to try to work out. But here’s the reason why we’re just never going to get this sorted:

The coalition traces the change of policy back to training sessions in 2017 for prosecutors in which they were encouraged to remove weak cases from the system in order to achieve a higher conviction rate.

Because in 2014 to 2016 the world was littered with complaints that the conviction rate upon going to trial was too low. The CPS was sending those marginal cases to trial because that’s what people said they wanted. Then the low court case to conviction rate was regarded as being evidence of a failure in the system. So, change the decision on the marginal cases so that fewer of them went to trial. The trial to conviction rate rises – but, obviously, at the cost of some more allegations not making it to trial.

Now the complaint is that not enough allegations are going to trial – we’re back on the same roundabout, aren’t we? Which is why we never will solve the problem.

By the way, the allegation to conviction rate isn’t very different for rape than it is for most other major crimes. Sure, lower than it is for murder but not out of line with most of the rest of it.

Or, to be heteronormative, even patriarchal, about it we can set the system up any way people want it. Somewhere in that pipeline from tearful allegation through to rapist justly jugged there’s going to be leakage in the system, of the crime not having been committed, the wrong person being accused, evidence not being available and so on. So laydeez, could you please make up your damn minds about where you want this filter to be? Allegation to trial? Or trial to conviction?