The Complexities of Rape Cases: Understanding the Legal Balance

Why calls for more convictions in rape cases are dangerous and misinformed

The recent media reporting of rape and serious sexual assault statistics would lead you to the swift conclusion that these offences are not being investigated properly by the police, that the CPS too readily decline to prosecute guilty perpetrators and that rape victims / survivors are being let down by a system that is too heavily skewed in favour of the defendant.

This is not a recent phenomenon. The newspaper reporting of rape cases has followed a similar theme for years. Victims are being ignored or forced to relive their trauma in court. Defence lawyers are being allowed to attack complainants because of the clothes they wore or some messages they’d sent which had nothing to do with the case. Juries rely on “rape myths” to acquit.

In short, if you believe the papers, rapists are getting away with it.

There will always be the occasional bad case which appears to give truth to the lie that the system is failing. But those cases do not reflect the vast majority of the rape and sexual assault trials running through our crown courts in recent years. The reality is that the system is very carefully balanced. It is not stacked against either side. There are clear rules of evidence which force both sides, prosecution and defence, to consider what is relevant and what is not. There are rules which allow the judiciary to tightly control what questions can be asked of a complainant about their previous sexual experience. If its not relevant to the issue in the case, it cannot be asked.

By their very nature, rape cases are notoriously “difficult”. So called stranger rapes are incredibly rare. They are not what this article is about. The issue, in most cases, is consent.

Scenario A
If the Complainant has been raped or sexually assaulted, and they decide to report it to the police, they will go through the inevitable trauma of a medical examination and a video recorded interview. At some point, possibly months into the future, they will face cross examination in court, albeit via a livelink from another place. Their behaviour on the night in question will be analysed. Messages sent beforehand or in the immediate aftermath will be used as a stick to beat them with. It will be suggested that they consented to sexual activity with the Defendant. Ultimately, if the jury believe him or her when they say they didn’t consent and that the Defendant did not have reasonable belief in consent, they will convict. The Defendant will go to prison. This might give rise to a sense of justice but it’s unlikely the victim will feel any great sense of achievement.

Scenario B
Now consider the innocent suspect, arrested in the early hours of the morning as he sleeps, taken into custody, required to provide bodily samples and then interviewed about his actions and thought processes the night before. He will be bailed, usually for months on end. He might be released under investigation while the police complete their enquiries and the CPS review the file. Even without media reporting of the case, everyone in his local community will know about it. Once he is charged and in court, a quick Google search of his name will lead directly to the press reports. His reputation will be irrevocably tarnished. Every court hearing will be a source of intense stress, and there may well be a number of them. Eventually the case will come to trial, perhaps 6 months after he was charged, if he’s lucky but more likely 12. Ultimately, if the jury cannot be sure and there is room for doubt, he will be acquitted but, freedom aside, what has he won?

Attempts to skew the system one way or the other, when the stakes are so high and when the system is already so finely balanced, are misplaced. Recent press reporting and Government Minister grandstanding appears to be based on the assumption that every allegation made is true and that every complainant is a victim or survivor. But this isn’t about a battle of the sexes, of good versus evil. We know that there are genuine victims who will never see justice. We also know that there are innocent men whose lives will be changed forever because of a false allegation.

It bears repeating: people make false allegations, for myriad reasons. To ignore that fact is to completely fail to understand human behaviour. To design a Criminal Justice System on that misunderstanding is wilful blindness.

We want the guilty to be convicted and punished. We want the innocent to go free. The system should be set to achieve those results as often as it possibly can. But if there is scope for a margin of error, on which side should that error fall? Should one guilty man go free in order to acquit all the innocent or should a guilty man go to prison to ensure all the guilty are punished? If one accepts that rape cases are inherently difficult, the scope for uncertainty vast, the system should lean towards the former.

The following is a Case Study based on a trial that took place in the Summer of 2021. We believe this case demonstrates how finely balanced the issues can be, how well the current system works and why current calls to redress that balance in favour of the complainant are wrong-headed.

Our client, we’ll call him Jake, was charged with sexual assault by penetration. The allegation had been hanging over all those involved for the last three years. Conviction would mean a starting point of 6 years in prison.

The case was complex but, as in the majority of rape and sexual assault trials, the issue was one of consent. Did she consent? Did he have a reasonable belief in her consent?

Inevitably in the current climate, digital evidence was also heavily relied on by both parties. This digital evidence had led Jake to plead guilty at the first hearing, when he was represented by a different legal team. Text messages had been exchanged between the parties the day after the alleged offence and it seemed that Jake had made a clear admission.

Jake received legal advice, outlining the strengths and weaknesses of his case, but the text was clearly the deciding factor. He entered a guilty plea and the case was adjourned for a pre-sentence report to be prepared. When Jake met with the Probation Officer, he continued to claim that he was innocent and he then maintained that position when he returned to court. The Judge directed Jake to instruct new solicitors and an adjournment was granted. Freshly instructed, we made an application to re-open the case. His plea of guilty was rescinded, a not guilty plea was entered and the case set down for trial.

In the preparation of this case, psychologist and psychiatric reports were obtained relating to Jake’s apparent suggestibility and an extensive analysis of numerous messages took place, primarily from Jake’s phone. At the commencement of the trial and because of the content of some of that messaging, an application was made under s41 Youth Justice & Criminal Evidence Act 1999 to allow some questioning of the Complainant about previous allegations she had made.

The s41 process is in place to protect victims and to ensure only relevant sexual history is put to him or her. In other words, the questioning and/or evidence has to be pertinent to the issue in the case. The threshold is high. It is never enough to argue that “they have consented before so they must have consented this time”. Life isn’t like that and neither are the rules of evidence. The application in this case concerned a possible motive to fabricate the allegation. Our application was granted but only to a limited extent.

As a direct result of that partially successful application, further phone material was then served by the prosecution which contradicted aspects of the complainant’s account. Herein lies a problem with current “victim” focused lobbying. If our application had not been granted, these messages would simply not have come to light and the jury would have been deprived of evidence which was pivotal to their decision.

The system places reliance on the prosecution to serve material that they believe is capable of supporting the defence case or undermining their own. If this material had been served at the outset, Jake may not have felt compelled to plead guilty when he first attended court and the complainant would not have had the trauma of being told that she was not required to give evidence, only to be told subsequently that she would. Thankfully, a properly instructed Defence team, with the time to assess the evidence before it, were able to push the right buttons and obtain the crucial evidence which supported Jake’s version of events.

The jury heard all the evidence, they weighed the accounts provided by both parties, they considered why the Complainant might have fabricated her allegation and why Jake might have sent the messages to her the following day. They found Jake Not Guilty.

We are not going to venture whether the verdict was the right or wrong one, but the issues raised by Jake’s case are important in the wider context of rape and sexual assault prosecutions and the publicity surrounding them.
The Government’s recent Rape Review Report shows a clear intention to increase the conviction rate of such cases, and this case highlights their inherent complexity and the need for caution.

On the initial disclosure served before the first crown court hearing a Defence lawyer advises their client on the strength and weaknesses of the case. The summary of the digital evidence served in this case, when taken at face value, appeared overwhelming and led directly to the understandable advice to plead guilty. That advice wasn’t negligent, it was finely balanced, but it wasn’t based on the full picture.

The Government want to increase the volume of cases being brought to court. We are not disputing that this case should have been brought to court but there are always two sides to every allegation and the Justice System should exist to provide a fair trial for all. If the law had required the police to hand back the Complainant’s phone before it was properly analysed or if we had been forced to conduct our cross examination of the prosecution witnesses before we’d had a chance to fully consider Jake’s account, the risk of a miscarriage is obvious.

The voices of Complainants whose cases have not come to court must be heard. Mistakes must be learnt by those who investigate and prosecute such cases. But lessons must also be learnt from cases like Jake’s. Getting the balance right is a constant struggle and must always be evidence led. A focus on statistics, mindless calls to increase convictions and increased pressure being placed on the police and CPS by the media will only weaken our system.