- Rape Myths (but not the ones you’re thinking of) – Part 1
- Rape Myths (but not the ones you’re thinking of) – Part 2
I’ll start by stating what this is not. It is not a piece intended to dismiss or diminish rape or to delegitimise concerns about the treatment of victims in the criminal justice system. There are issues that need to be addressed. There is no doubt about that.
Rather, my intention is to challenge the following six ideas that seem to have taken hold of the narrative around how rape is dealt with by the criminal justice system.
- Rape is effectively decriminalised
- Juries are swayed by ‘rape myths’
- False allegations don’t happen or are so rare that they don’t matter
- Victims are subjected to ‘digital strip searches’
- Victims have their sexual history dragged through court
- Rapists are let off with weak sentences
All are wrong. All are dangerous.
As I refer to it frequently throughout this blog, a link to the government’s 2021 End-to-End Rape Review can be found here: https://www.gov.uk/government/publications/end-to-end-rape-review-report-on-findings-and-actions
4) Victims are subjected to ‘digital strip searches’
There is not and never has been such a thing as a ‘digital strip search’. There is not and never has been a blanket requirement for complainants in rape cases to hand over their phones for examination.
So why are some complainants being asked to hand over their phones?:
As made clear in both the rape review and the updated CPS guidance: ‘Complainants are not asked for information unless it is necessary and proportionate in pursuit of a reasonable line of enquiry’. In short, the police are not allowed to request that complainants hand over their phones unless it is genuinely relevant to the investigation. The defence are also not entitled to simply go on a fishing expedition and request that a complainant’s phone is examined without at least some idea of what relevant information might be found on it.
Importantly, when information is downloaded from a phone, only information relevant to the case is then disclosed to the defence (and that in itself is limited only to evidence which might either undermine the prosecution case or assist the defence). The argument from some that it is never justifiable for a complainant to be asked to provide their phone to the police for examination is essentially an argument for the rules of evidence to be different in rape cases.
What sort of information might be deemed relevant? Well you’ll have seen a few examples at the end of the previous myth. But as the following piece of research from two Senior Criminal Justice academics in 2020 shows, the function of digital evidence is wider than simply assisting the defence. Whilst in some cases, evidence obtained from a complainant’s phone undermined the credibility of their allegations, in others (nearly a third of the sample) the evidence obtained was actually an important part of the case against the suspect. Furthermore, in a small number of cases, phone data enabled the police to identify and act against suspects or third parties who had tried to intimidate the complainant.
There is a lack of thorough research into how often such digital evidence is requested or used in rape cases, as the above paper points out. It refers to figures reported in The Guardian which suggested that ‘as many as 8 in 10 complainants in some police force areas are being asked to disclose personal data from their phones during investigations’, pointing out that the lack of data or methodology provided makes it difficult to assess the validity of that claim (they appear to have been obtained from surveys of frontline Rape Crisis England & Wales staff).
Research that does exist based on actual rape cases files would seem to indicate that access is requested far less frequently than that. The paper itself studied 441 police case files and identified 61 cases (14%) in which there was a complainant data access request or seizure of a suspect’s device(s), with 43 of those cases (so roughly 10% overall) resulting in the police requesting data from complainant or suspect phones. The 2019 London Rape Review mentioned in Rape Myths – Part 1 found reference to social media in 13% of reviewed cases and complainant or suspect technology in 17% of cases. An FOI investigation by Big Brother Watch (who have campaigned very strongly against the practice) found that formal requests to access digital records were made by the police in 84 (22%) of a sample of 390 rape cases in 2018-19 – https://bigbrotherwatch.org.uk/2020/06/rape-cases-dropped-over-digital-strip-search-refusals/
It’s also important to point out that just because information is disclosed to the defence doesn’t mean it can automatically be deployed in court – evidence relating to a complainant’s sexual history or bad character for example would still have to be adduced in an application for the trial judge to decide on whether it is admissible or not.
And to be clear here, no judge would allow for instance, as some have suggested, private photographs of a complainant in a bikini to be allowed to be introduced in court as evidence that said complainant was somehow loose or ‘asking for it’; nor is it likely that any police force would deem such personal photos of any potential relevance to a case; and no reasonable defence barrister would ever even try to propose such evidence be allowed for that sort of purpose.
Why do some people think this is a problem then?:
There have been issues in recent years with a lack of consistency in how different police forces have applied the existing guidelines.
There have been instances in which complainants have had their phones taken without proper justification and/or kept for far longer than necessary (incidentally, this has also been the case for some suspects and other witnesses). There are also examples of a lack of knowledge and adequate training for some police investigators causing problems in cases for both complainants and defendants because of how disclosure has been handled. There is also evidence from some complainants that they have not had the need to examine their phone explained to them in a particularly clear or sensitive way. It is absolutely right that those problems are addressed. The concerns some complainants have felt and would still feel over potentially having personal information unrelated to the allegation seen by investigators, even if not shared with anyone else, is also completely understandable.
The guidelines have now been tightened up, with the aim of a better defined and more unified approach across police forces. Whether it would be possible for police to only access certain parts of a phone’s data history, rather than all of it is also being explored. There may still be issues with how the guidelines operate in practice (for both complainants and defendants – a 24 hour turnaround seems potentially unworkable considering limited police resources) and further attention needs to be paid to this.
But pushing a narrative of ‘digital strip searches’ as if all complainants are forced to hand over their phones for no reason at all, so the defence can bring up anything and everything it can to undermine their credibility in court, is simply not the reality and never has been.
5) Victims have their sexual history dragged through court
For what purpose is sexual history evidence used?:
Using sexual history evidence to undermine a victim’s character is already prohibited. It is simply not allowed for that purpose. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prevents the defence in a sexual case from cross-examining about the sexual history of a complainant except with the permission of the trial judge, which can only be given in certain limited circumstances – you can see what they are below:
https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-10-sexual-history-complainants-section-41-yjcea “An application by or on behalf of an accused at trial can only succeed if the court is satisfied: that one of the four ‘‘gateways’’ applies, namely:
- 41(3)(a) (evidence or question relates to an issue which is not an issue of consent),
- 41(3)(b) (relates to consent and the sexual behaviour is alleged to have taken place ‘‘at or about the same time as’’ the event in issue),
- 41(3)(c) (relates to consent and the sexual behaviour to which the evidence or question relates is so similar to behaviour which, according to the evidence, took place as part of the event or other behaviour by the complainant at about that time that the similarity cannot reasonably be explained as a coincidence), or
- 41(5) (relates to and rebuts evidence adduced by the prosecution about the complainant’s sexual behaviour); and
- that a refusal of leave might have the effect of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.”
When it is allowed, sexual history evidence can only be used in a limited way – only in the context of one or more of the reasons above and only in relation to specific aspects of the case. It is not a license to grill a complainant on their entire sexual history or to ‘generally blacken their character’ (a phrase used by Harriet Harman).
The overriding test for a judge to consider is whether excluding the evidence would risk an unsafe conviction – if it wouldn’t then the evidence will not be allowed, regardless of how many of the “gateways” apply to it.
This blog by The Secret Barrister gives a detailed explanation of its use in the Ched Evans case (points 6 and 11) and why the media coverage of it at the time was so dangerously misleading. It is very much worth reading: https://thesecretbarrister.com/2016/10/14/10-myths-busted-about-the-ched-evans-case/
Though to provide a few other examples:
Consider an alleged rape which involves the use of restraints and results in visible marks and bruises to the complainant. If the complainant and the accused had engaged in consensual BDSM on many prior occasions, the defence may want to bring that up in court. It would not be relevant if the defence’s intention was to suggest that a person who engages in BDSM cannot be violently raped, but it might if it’s aim was to provide some context to a jury wondering why on earth the defendant would so strongly assert that the injuries sustained were consented to.
Or consider a child complainant of perhaps 7 or 8 who provides an extremely detailed description of the sexual abuse the defendant allegedly inflicted upon them, so much so that it could only have come from first hand experience. Now if the defence have obtained evidence from that child’s social services files, or even from the police themselves, which details sexual abuse inflicted upon them by somebody else at the age of 5 or 6, they may want to raise that evidence in court in order to provide the jury with an alternative explanation for the child’s vivid account.
Or consider a complainant who gives a sworn statement that they have never engaged in an extra-marital affair due to a firm belief in the sanctity of marriage and so would not have willingly cheated on their partner with the defendant. If the defence can prove this is in fact a lie, perhaps with the aid of multiple witnesses and digital evidence which show that the complainant repeatedly engages in extra-marital affairs, then it may be something they would want the jury to know. The stated purpose of such evidence would not be to cast aspersions on the character of the complainant in relation to their sexual behaviour or to suggest that the promiscuous cannot get raped, rather it would be be to demonstrate that the claim explicitly made by the complainant about that specific aspect of their sexual behaviour is simply untrue.
Harriet Harman desires to ban the use of sexual history evidence entirely. No ifs, no buts. At it’s most extreme the consequence would be to deny a defendant the right to even mention in court the fact he’d been in an ongoing sexual relationship with the complainant if the prosecution chose not to volunteer it.
To view sexual history as never relevant is essentially to view the offence of rape from the perspective of the complainant only. It is a position that is inconsistent with the fundamental right of a defendant to a fair trial.
How often is sexual history evidence used?:
If you’re wondering how often such evidence is allowed in court – well, there have been a couple of studies:
This one by the Ministry of Justice on behalf of the Attorney General’s Office in 2017 – analysed 309 rape cases finalised in 2016: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/667675/limiting-the-use-of-sexual_history-evidence-in-sex_cases.pdf
“In the overwhelming majority of cases (92%) no evidence of the complainant’s
sexual history was permitted to be introduced by the defence, and section 41 applications
seeking to do so were made in only 13% of cases. The bar for the disclosure under
section 41 is rightly high, and these findings provide a compelling basis to indicate that
section 41 is working as intended.”
As well as this one – an independent study commissioned by the Criminal Bar Association in 2017. It is the largest and most detailed peer-reviewed empirical study of its kind: https://www.criminalbar.com/resources/news/press-release-section-41-report/
This is what it found:
“140 barristers contributed a maximum of ten of their most recent cases to the
sample. 66% had both prosecuted and defended in those cases. Of the 565 complainants in the sample, 144 applications were filed: of which 105 (73%) resulted in a measure of success for the defence, either by being agreed between counsel, or being granted by the court in full or in part. So 18.6% of complainants in the sample were the subject of section 41 agreements or orders. NB: The 18.6% ratio of complainants to applications is very likely to be significantly overstated due to the cautious methodology adopted in quantifying the data.
Not a single respondent (0%) considered that section 41 should be reformed to make it more restrictive. Only one respondent (0.5%) thought that trial judges were not being sufficiently rigorous in their application of section 41. A number of respondents expressed concern that section 41 was too restrictive, and that exclusion of relevant evidence which could not fit through one of the four statutory gateways could result in serious unfairness to the defendant.”
As those two studies confirm – sexual history evidence is rarely ever allowed to be used in court. And when it is, it is only with the permission of the judge and for a specific reason.
Wait… But that isn’t what Harriet Harman says:
Yet that isn’t what Harriet Harman or Victims Commissioner Vera Baird are saying. So what exactly are they basing their claims on?
Well, things like a self-selecting survey of 36 Independent Sexual Violence Advisors, which claimed that 75% of complainants in sexual trials are quizzed about their sexual history. And a study promoted by Vera Baird which relied upon the observations of 12 lay observers of 30 trials at a single Crown Court in Newcastle which claimed that sexual history evidence was used in a third of cases. Pages 23-36 of the Criminal Bar study above comprehensively discredits them – to summarise: neither comply with empirical research conventions and they were conducted by people with extremely limited understanding of the law (in some aspects to the extent of being completely misinformed) who were not even present for all of the proceedings. And with regard to the former (the 75% one), as Barrister Matthew Scott explains in his blog – the findings if read correctly actually suggest the opposite of what the report claims: https://barristerblogger.com/2017/09/25/75-rape-complainanats-face-cross-examination-sexual-history/
So when I say that Harriet Harman is not being even the slightest bit honest on this subject, I really do mean it. And I’m not the only one saying it – just take a look at legal Twitter:
6) Rapists are let off with weak sentences
To an extent this depends on what your definition of a weak sentence is and the value you place in long prison sentences as effective punishment. But let’s provide a few facts anyway.
How long are prison sentences for rape and how are they justified?:
The maximum sentence available for rape is life – and some offenders do receive this. The average sentence for rape in 2020 was 9 years, 9 months. Don’t believe me? Well here’s the Justice Secretary:
As with all serious offences, there has been a steady increase in the length of sentences over the past decade (in 2009 the average sentence for rape was 8 years).
Until recently, offenders would serve half their sentences in prison, with the rest on licence in the community (so a 10 year sentence would in reality mean 5 years spent in prison, 5 years on licence). The rationale for this is partly so that so offenders can be monitored and supported by probation as they reintegrate back into society and partly because there simply wouldn’t be enough prison spaces otherwise. In that second part of the sentence, they would be expected to abide by strict licence conditions – failure to do so could result in an immediate recall to prison to complete the rest of their sentence.
It is also worth pointing out that judges do have the power to pass extended sentences for the most dangerous offenders, which prevents them from being automatically released from prison before the end of their sentence without the consent of the parole board – and only after they have served at least two thirds of it. Extended licence periods can also be applied by judges, which means that some offenders can be returned to prison up to a maximum of 8 years after the end of the substantive part of their sentence.
A change in the law in 2020 means that anyone convicted of a violent or sexual offence who is sentenced to seven years or more now has to serve two thirds of their sentence in prison before being automatically released on licence. The Police, Crime and Sentencing Bill when enacted will change that again to include anyone convicted of a violent or sexual offence who is sentenced to four years or more.
As you can see below, that covers everyone convicted of rape:
That graphic is taken from the sentencing guidelines for rape, which can be read here: https://www.sentencingcouncil.org.uk/offences/crown-court/item/rape/
In deciding which of those categories an offence falls under, the judge will take into consideration the level of harm involved in the offence, the level of culpability of the offender, and any other aggravating or mitigating factors. The specific things taken into account when sentencing an offender are outlined below:
Harm: severe psychological or physical harm; pregnancy or STI as a consequence of the offence; additional degradation/humiliation; abduction; prolonged detention/sustained incident; violence or threat of violence (beyond that which is inherent in the offence); forced/uninvited entry into victim’s home; victim is particularly vulnerable due to personal circumstances.
Culpability: significant degree of planning; offender acts together with others to commit the offence; use of alcohol/drugs on victim to facilitate the offence; abuse of trust; previous violence against the victim; offence committed in course of burglary; recording of the offence; commercial exploitation and/or motivation; offence racially or religiously aggravated; offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation or transgender identity; offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability).
Aggravating factors which may necessitate a higher sentence include: Previous convictions, having regard to a) the nature of the offence and relevance to the current offence and b) the time elapsed since the conviction; offence committed whilst on bail; specific targeting of a particularly vulnerable victim; ejaculation; blackmail or other threats made; location of offence; timing of offence; use of weapon or other item to frighten or injure; failure to comply with current court orders; offence committed whilst on licence; exploiting contact arrangements with a child to commit the offence; presence of others, especially children; any steps taken to prevent the victim reporting the incident or from assisting the prosecution; attempts to dispose of or conceal evidence; commission of offence whilst under the influence of alcohol or drugs.
The more prevalent those factors and the more extreme they are, the higher the category will be and the longer the sentence.
So, those sentences of five years for rape – well, those are given by judges, who having seen all of the evidence in the case, deems that none of the above factors are present. Such sentences are of course well below the average.
It’s also worth noting at this point what the legal definition of rape actually is:
- A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,(b) B does not consent to the penetration, and(c) A does not reasonably believe that B consents.
- Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
There is no specified length of time required for penetration, no requirement for ejaculation to have occurred, no requirement for the use of force or violence. The act of penetration and a lack of a reasonable belief in consent (a subjective test with an objective element) are all that is required to meet the legal definition of rape. So when politicians have in the past clumsily referred to ‘serious rapes’, whilst that may be insensitive to victims, it is not an entirely unjustified distinction in a legal sense – because the level of harm and culpability inherent in any particular offence is indeed reflected in sentencing.
It’s also important to note that there are reasons why a sentence may be lower than would initially seem appropriate. Mitigating factors that can be taken into account when sentencing include: no previous convictions or relevant/recent convictions; remorse; age and/or lack of maturity where it affects the responsibility of the offender; and mental disorder or learning disability, particularly where linked to the commission of the offence. In those rare instances where sentences are given that fall below the minimum recommended in the guidelines, perhaps even to the extent of not receiving a custodial sentence at all, well there tend to be very specific reasons for those based on the facts of the case or the individual concerned – a few examples can be seen in a previous blog post: https://democracycoma.wordpress.com/2021/05/30/when-statistics-have-an-agenda-the-difference-between-lobbyists-and-academia/
Offenders who plead guilty will also usually receive a reduced sentence – up to a one third reduction if given at the earliest opportunity, to one tenth on the day of the trial. Whilst in some cases indicative of genuine remorse, the primary reason that reduced sentences are given for early guilty pleas is because it saves time, money and the victim having to go to court. If there was no incentive to plead guilty, it’s likely that fewer people would. Time spent on remand, regardless of plea, also counts towards the sentence imposed.
Sometimes judges do get it wrong – that goes with out saying. However, such sentences can be appealed under the Unduly Lenient Sentence scheme – the CPS can do this either of their own volition or because the victim has requested it, or any member of the public can do so via an application to the Attorney General’s Office who will then decide whether to make a referral to the Court of Appeal. This must be done within 28 days of sentence. The Court of Appeal after looking at the case can decide to increase the sentence (as they do in around 100 cases a year on average) or can decide that they agree with the trial judge. On that note, it is worth knowing that the number of sentences deemed to be ‘manifestly excessive’ or ‘wrong in law’ by the Court of Appeal is on average around 900 a year (both of those figures relate to all types of offences, rather than just rape). That sentences are in fact quite tough on the whole, rather than weak, could perhaps be inferred from that.
Comparison with other offences:
Using the Ministry of Justice data sentencing tool to examine crime statistics on the government website: https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2020
These were the average custodial sentences handed down for the following offences in 2020:
- Attempted murder – 16 years, 5 months
- Manslaughter – 9 Years
- Unlawful importation of class A drugs – 8 years, 6 months
- Aggravated burglary of a dwelling – 7 Years
- Slavery, servitude and forced labour – 5 years, 9 months
- Grievous bodily harm with intent – 5 years, 8 months
- Causing death by dangerous driving – 4 years, 5 months
- Possession with intent to supply a class A drug – 4 years
- Robbery – 4 years
- Conspiracy to defraud – 3 years, 8 months
- Arson endangering life – 3 years, 1 month
- Money laundering – 2 years, 5 months
- Violent Disorder – 1 year, 7 months
Evidently, rape sentences (9 years, 9 months on average) are some of toughest.
Prison is not the only punishment:
Anyone convicted of a sexual offence also has to sign the sex offenders register upon their release from prison. This requires them to provide the police with their full name (and any others that they go by), address, National Insurance number, passport details, and bank details (fingerprints and DNA are already taken at the point of arrest, along with a photograph). If any of those details change then they have to notify police of those changes within 3 days. If none of those details change, they are still required to report to their local police station to confirm this on a yearly basis.
They are required to notify the police of anywhere they intend to stay (that isn’t their primary address) for more than 7 days over the course of a year. They are required to notify police of any plans to travel abroad and to notify them when they have returned. They are also required to notify the police if they spend more than 12 hours in a residential property where anyone under the age of 18 is present (even if their offence was not related to children). If they fail to comply with any of the above things then they are committing a criminal offence and can be arrested. The police will also check in on them at home periodically and retain the right to do so at any time if they feel the need.
Overall, it seems to be quite an onerous and restrictive set of requirements.
The length of time they have to remain on the register depends on the length of sentence. Anyone given a custodial sentence of more than 30 months (and that includes the license part of the sentence) must register ‘indefinitely’. Therefore practically everyone convicted of rape will be registered as a sex offender indefinitely. They do have the right to apply to be removed from the register after 15 years (the police will make a decision on whether to allow it based on their perception of that person’s risk of harm to the public, the nature and seriousness of their offence(s), and their general level of compliance with the register).
For offenders who pose a particular risk, a court can also impose on them a Sexual Harm Prevention Order prohibiting them from certain activities – such as using the internet without monitoring software installed, hanging around public parks or schools, having any contact with anyone under the age of 18, or entering a new relationship without notifying the police first. The minimum length of time these can last is 5 years. There is no maximum.
Even if you remain unconvinced by the above and feel that the punishment for rape needs to be even tougher, be aware that if you also believe any of the other five myths challenged in this blog – tougher sentences aren’t going to make a blind bit of difference to any of them.