How the legal test for crimes can be a bar to justice for rape victims
Analysis: Prosecutors’ code and jury trials are driving intrusive demands for rape victims’ phones and personal records
“Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction.”
That is the statement underpinning the Code for Crown Prosecutors, which governs whether charges are brought for crimes reported in England and Wales.
They must not only consider evidence that an offence was committed, but also “what the defence case may be, and how it is likely to affect the prospects of conviction”.
For the vast majority of offences, the legal test is an uncontroversial one, but for rape and sexual offences it can become a bar to justice.
How “realistic” is the prospect of convicting an alleged rapist when official statistics show that more than half of those put on trial are acquitted?
With most rapes committed in private, and by attackers known to the victim, a lack of witnesses or objective evidence means cases often boil down to two people’s conflicting accounts of whether an encounter was consensual.
And jurors are only able to convict someone if the offence is proven “beyond reasonable doubt”.
Research suggests that young men are the most likely to be cleared, who told academics they feared how labelling them rapists would affect their futures.
Only 32 per cent of 18- to 24-year-old men charged with rape were convicted in 2017-18, compared to 46 per cent of 25 to 59-year-olds in England and Wales.
Separate research suggested that rape myths remain prevalent, with a YouGov poll finding that a third of British people think it is not usually rape if women are pressured into sex without physical violence.
A third of men and a fifth of women polled thought that if a woman had flirted on a date but not explicitly consented to sex, it generally would not count as rape.
The findings caused Labour MP Ann Coffey to challenge the use of juries in rape cases last year.
She demanded an inquiry to consider options including trial-by-judge, jury vetting and specialist rape courts to address plummeting prosecution rates, but her call was not pursued by the government.
The cases that reach court are only 1.7 per cent of the total number of rapes and 3.8 per cent of sexual offences reported to police in England and Wales.
And according to the official Crime Survey of England and Wales, four in five victims of sexual assault do not report it to police in the first place.
Those who do face hours of questioning, tests and demands for blanket access to personal records from schools, GPs and therapists, which can be pored over to assess their reliability.
The victims’ commissioner today warned that “many victims are being deterred from reporting rape to avoid this intrusive disclosure”.
While legal protections are in place to prevent complainants’ sexual history being used in court, campaigners say “prejudicial and irrelevant” evidence is frequently being used to discredit women.
Earlier this year, police rolled out new forms telling victims their cases may be dropped if they do not comply with requests for full downloads of mobile phones, including messages, photos and social media.
Digital devices can be demanded from people reporting any crime, but officials admitted that the move is more likely for sexual offences because they are often committed with no witnesses or other evidence.
Victims face the choice between refusing and ending their case, and agreeing to reveal information that may later be used against them.
One victim told me she withdrew her complaint because she feared that phone evidence that she previously had one-night stands would reach the defence.
Police have accused the prosecutors of requiring increasing amounts of evidence to charge rape cases, but the CPS insists it has not changed its practice and merely applies the code.
MPs, victims and campaigners have demanded an end to intrusion into victims’ lives and efforts to turn around falling prosecution rates, while the government has launched a review.
But while the Code for Crown Prosecutors and jury trials remain in place, little can change.