If I could have one wish for the new year, it would be for Britain’s criminal justice system to be reformed in a way that would ensure the arrest, prosecution and conviction of every single rapist in the country. I do not mean, of course, any man accused of rape, but every man who has actually committed rape.
One of the most prevalent and persuasive myths about rape and sexual assault is that a large number of allegations are false and men who have been publicly accused of rape but could not be convicted in a court of law are the victims of grave miscarriages of justice.
According to the United Nations, “globally, an estimated 736 million women – almost one in three – have been subjected to physical and/or sexual intimate partner violence, non-partner sexual violence, or both at least once in their life.” Despite such shockingly high figures, there is still a presumption that many women make false allegations about male violence – in particular, rape.
In the United Kingdom, the government estimates that false allegations and cases of mistaken identity make up just 2 to 4 percent of reported rapes – a figure believed to be broadly accurate across countries. Of course, men’s rights activists and other anti-feminists never mention this figure in their unhinged rants about how women routinely lie about being sexually assaulted and raped.
Currently, in England and Wales, the conviction rate for rape is at an all-time low. Of those reported to police, known to be just small a minority of sexual assaults actually committed, only 1 percent end in a conviction. That means, if we also take into account the small percentage of false allegations, well over 90 percent of rapists get away with their crimes. These men are bound to be emboldened by their ability to evade justice and will almost certainly do it again. Given the terrible, devastating impact that rape often has on women subjected to it – resulting in chaotic lifestyles, drug and alcohol abuse, and other actions fuelled by trauma – victims of rape are more likely to end up in prison than their rapists.
The biggest obstacles to securing rape convictions in the UK are prejudiced jurors and the reluctance in every level of the justice system to prosecute “difficult” cases – such as those involving women in prostitution, drug and alcohol users, and teenage girls, all of whom are often seen as unreliable witnesses.
Contrary to what is often said in defence of the low number of cases getting to court, there is no such thing as a sex crime prosecution that is “too difficult to prosecute”. In the UK, the Crown Prosecution Service only takes sex crime cases to court if it believes there is at least a 50 percent chance of a conviction. This often means that the more complicated cases, or those involving victims who are considered imperfect, are dropped.
The advantage of the system in the United States is that prosecutors in Special Victims Units work exclusively on sex crimes and receive intensive and ongoing training from experts. These prosecutors play a pivotal role from the moment a rape is reported, working with police to investigate the case and developing an intimate understanding of the details of the crime. This gives them an obvious advantage when it comes to presenting their case clearly and persuasively in court. By comparison, in the UK, the first time the complainant will meet the prosecutor is at the trial.
This is why I advocate for the use of specialised prosecutors in sex crime cases in the UK too. The UK does have prosecutors trained in rape and serious sexual offences, but all that is required is to have attended a training course. These prosecutors also take on a range of other cases, and their “expertise” is, therefore, limited.
What we need is a type of super-lawyer, highly trained in every detail and aspect of sex crimes. This would include legislation, forensic science and victim/jury psychology, equipping them, for instance, to explain to jurors that if a complainant laughs or appears bored or distracted in the witness box, this could be the result of trauma.
Prevailing rape myths, such as “She was asking for it,” “He’s handsome and does not ‘need’ to rape” and “If she didn’t want it, she would close her legs,” can poison the mind of a juror against the complainant, whatever the evidence against the defendant. Women and girls are routinely blamed for being raped – which means the perpetrator, even when it is abundantly clear that he is guilty, is too often absolved. This is how patriarchy works: Keep women and girls in constant fear of male violence, and then when it happens, put the responsibility for it firmly on their shoulders.
Another potential reform put forward by feminists is the abolition of the jury system when it comes to rape and sexual assault trials. When we make this suggestion, however, we are often countered with the argument “Our jury system, the bedrock of a fair trial, is under threat as it is.” While that may well be the case, if we are to ensure victims of rape and sexual assault are to find justice, we need to take drastic measures. Rape myths are entrenched in society. Not only those working in the justice system, from police to prosecutors and judges, but also all potential jurors carry these myths with them into courtrooms. While those actively working the system can be trained to look beyond their prejudices, such training can hardly be extended to jurors. Thus, it may be beneficial to women for rape and sexual assault trials to not involve jurors.
Currently, the justice system in the UK is designed to help perpetrators of rape and sexual assault at every step of the way.
For example, police routinely try to access the counselling and therapy notes of rape victims, which can then be read by them as well as prosecutors, defence lawyers – and even the perpetrator. These notes can occasionally be helpful for the prosecution – if, for example, the victim had spoken in detail about the rape, her own trauma as a result of it and had not slipped up on any of the details – but this is unusual. They are more likely to be used to discredit her in some way, such as making a mistake about dates or times, or where the perpetrator is a current or former partner, telling the therapist that she still “loves” him.
Campaigners, including the Centre for Women’s Justice, are working with Rape Crisis England and Wales on a campaign to “Keep Counselling Confidential”, calling for a change in the law to make it much more difficult for legal advocates to insist on accessing the records of victims who have sought help from counsellors and therapists.
Access to such records should be granted only by order of a judge in exceptional circumstances – and only after the perpetrator has been charged with the offence.
Some years ago, I interviewed a rape victim who told me about her counselling records being made available at the trial of her ex-husband. Sandra* had disclosed to the therapist that she had never felt comfortable having sex with her husband, partly because she had been abused as a child.
As part of their investigation into the perpetrator, police accessed her counselling notes, which they were then compelled to share with his defence team. When Sandra discovered that the rapist had read her therapy notes, she felt so vulnerable and exposed that she dropped the charges.
In 2024, I do not want to hear the usual excuse that “rape is almost impossible to convict” because it’s “her word against his”. If police and prosecutors carry out thorough and responsible investigations, leaving no stone unturned, and take care of the complainant so she gives her best evidence, many more rapists would be locked up. By eliminating the myths and untruths surrounding rape and making a proper commitment to the victims of this heinous crime, the system can be improved without compromising the rights of the defendant.
*Not her real name
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.