21st November 2018
Below is a copy of the Hansard transcript for my recent adjournment debate in Westminster Hall.
I beg to move,
That this House has considered rape myths and juries.
It is a pleasure to serve under your chairmanship, Mr Hosie.
In August, I submitted a freedom of information request to the Crown Prosecution Service about the conviction rates for rape. The answer revealed that less than a third of prosecutions brought against young men result in a conviction. Men aged 18 to 24 in England and Wales are consistently less likely to be found guilty than older men. Only 32% were convicted last year—the lowest of any age group. Successful prosecutions against men aged 25 to 59 were much higher at 46 %. The Guardian used those figures in its recent excellent series on rape.
Given the vast majority of rapes are acquaintance or date rape, the conviction figures suggest a reluctance by juries to find young men guilty of rape. We need to explore the reasons behind that and how rape myths, stereotypes and attitudes affect juries. The rates may reflect the prevailing attitudes in society, and therefore of juries, towards young women, who are often blamed for their own rape.
The number of men charged with rape in England and Wales has fallen to its lowest level in a decade—a 23% decline in 2017-18, according to the Crown Prosecution Service’s annual “Violence against Women and Girls Report”. Yet at the same time, the number of rapes reported to the police soared to more than 41,000 in 2016-17, with a massive 150% increase in the last five years. Despite fewer charges, there was a 13% fall in prosecutions and a 12% decrease in convictions.
[Intervention, Gloria De Piero]
My hon. Friend highlights some figures; according to latest figures, just over half the reports of rape resulted in a charge. Of the cases that were prosecuted, 42% did not result in a conviction. The most vital thing for women who report rape is that they are believed. Does she agree that those figures cause serious harm to that principle?
I agree; women must have confidence when reporting rape that they will be believed and taken seriously, and that they will have justice.
There has been a 72% increase in the number of cases that have been administratively finalised—meaning the police have closed them after receiving advice from the CPS. A Guardian article on 24 September quoted a whistleblower who said that prosecutors were being told to
“ditch ‘weak’ rape cases to improve figures”.
That advice could severely limit victims’ access to justice and lead to cases involving younger victims, students or those with mental health issues being less likely to result in a charge. The overwhelming majority of rape victims still choose not to report to the police for fear of not being believed, yet the prevailing narrative in some sections of the media is that lying about rape is common. The opposite is true. Only 17% of those who experience sexual violence report it to the police, according to figures from the Office for National Statistics for March 2017. The CPS estimated in 2012 that only 3% of the 1,149 cases heard may have been malicious.
Juries view evidence through the lens of prevailing stereotypes shared with the wider community. Rape myths still dominate in our culture, including that a woman who has drunk a lot cannot complain if she is raped, that it is rape only if someone has injuries, that real rapes are done by strangers in alleyways, that it is a crime of passion and that women invite rape by what they wear. Research shows that stereotypes about how rape victims are expected to behave remain prevalent in society and, by extension, in juries. There is still a lack of understanding about why a woman might not report an assault immediately or might not fight, or how a victim of a sexual assault might behave in the immediate aftermath of an attack. There are still huge gaps in the public understanding about what sexual consent actually means.
The End Violence Against Women Coalition commissioned YouGov research, which will be published shortly, that shows confusion among the public about what constitutes rape, particularly concerning the majority of rapes involving acquaintances. Almost a third thought it was not rape if a woman had flirted on a date but had not wanted sex. Juries take those attitudes into the court room with them. Defence lawyers play up those myths in an attempt to rubbish the character of the witness.
Dr Dominic Willmott, an academic at Huddersfield University, conducted a study in 2017 in which he replicated genuine trial environments to assess how attitudes and backgrounds had an impact on juries. The study found that nearly half of jurors in rape cases came to a verdict before deliberation, indicating a predictive relationship between juror demographics, personal experience and psychological make-up, with an impact on verdicts in rape cases. Dr Willmott said the research demonstrated
“that for all the best efforts of the courts, juries are not necessarily offering a fair and impartial assessment of the evidence, particularly within rape cases. Past experiences play a huge role in shaping the person you are, and inevitably affects your view on society. As well as the importance of demographic features of the jurors, attitudes towards rape were found to be the strongest predictor of high numbers of not guilty verdicts.”
We all saw how the culture at the time protected very well-known people such as Jimmy Savile. We saw how young girls who were victims of shocking sexual exploitation in Rotherham and Rochdale were seen as prostitutes who consented to their abuse. Language and how we talk about behaviour is very important; it shapes what we see. The Crown Prosecution Service has said:
“Addressing the low conviction after contest rate in cases involving young defendants represents a challenge for the entire criminal justice system.”
The Ministry of Justice responded to an open e-petition in July this year that called on the Government to produce compulsory training about rape myths for all jurors in rape trials by appointing Professor Cheryl Thomas to gather data from experienced jurors at a range of courts throughout the country. The Government response to the petition said:
“We know that rape myths exist within our society, and therefore jurors could believe these myths and that this could affect their interpretations of the facts of the case.”
In the light of the shocking figures on charging and convictions there should be a stronger response, because this situation can only get worse without action.
I would like an urgent independent inquiry that would include some controversial areas, such as a review of the use of juries in rape cases; jury vetting; specialist rape courts; current law; judicial directions; examination of the falling number of rapes charges by the CPS; low conviction rates for rape, especially date and acquaintance rape; the role of expert witnesses in rape cases; pre-recorded cross-examination; and sexual history evidence rules. I absolutely accept that the justice system needs to ensure that the innocent go free and the guilty are sentenced, but my concern is that conviction rates indicate that the scales of justice are tipped against the victim. The most common cause of unsuccessful prosecutions in rape cases is jury acquittal.
Other countries have been pondering this difficult question. The Law Commission in New Zealand published a report in December 2015 that concluded:
“The nature of sexual violence is such that, as a form of criminal offending, it is not well suited to fact-finding by a jury comprised of 12 laypersons.”
The German and French court systems have a collaborative court model in which professional judges decide cases with citizens. Sir John Gillen, who issued a report yesterday in response to serious concerns about low conviction rates for rape in Northern Ireland and the polluting effect of rape myths said:
“there is no doubt that there is a growing belief, particularly among young people, that a jury should be replaced by a judge or by a judge and two lay people such as we see in family courts and aspects of youth justice.”
Specialist domestic violence courts were introduced in the mid-2000s. At the time, the prevailing view was that it was the woman’s own fault if she did not leave an abusive husband. New specialist sexual violence courts could draw on experience from those courts of using specially trained staff, ensuring speedy access to victim support services and ensuring that the court is a physically safe space for the victim, for example by using separate entrances and special measures for giving evidence.
The roll-out of the successful pilots in Leeds, Liverpool and Kingston of section 28 of the Youth Justice and Criminal Evidence Act 1999, which allows pre-recorded cross-examination, has still not happened. Those pilots, which involved vulnerable child witnesses, were evaluated as very successful in improving the quality of cross-examination and stopping bullying attacks on the character of witnesses. I hope that the Minister can give us positive news about when pre-recorded cross-examination will finally be rolled out, and that she will consider offering it to victims whose access to a fair trial may be compromised by rape myths.
There is also controversy about the extent of the personal records and data that police request of rape complainants before going ahead with their cases. The nature and extent of the information requested from complainants varies widely across police forces. There is concern that intensive examination of a complainant’s communication and behaviour to establish their “credibility” is too often a proxy for rape myths and discriminatory assumptions. The new Director of Public Prosecutions addressed that issue in his first major speech, saying that rape complainants must have their personal privacy, including their mobile phone records, protected.
Dr Willmott has called for the vetting of juries for preconceived bias. He argues that although judges can tell jurors to disregard certain things, that does not make any difference:
“Our study highlights that even before the case has begun, jurors’ psycho-social make up predisposes them towards particular verdict decisions, making a vetting system for juries increasingly important. By implementing such a system we can reduce existing bias from juries, which should result in a greater number of fairer outcomes.”
There have been calls for experts to be allowed to give evidence about rape myths. There is a case for updating judicial directions to take into account the impact of social media and how it can feed into rape myths—another issue taken up by Sir John Gillen. Baroness Stern raised the impact of rape myths on juries in her 2010 review, quoting a specialist rape prosecutor who said:
“You can forgive juries for finding it hard to convict given the burden of proof and when the defence works so hard to discredit the victim’s case. There is a lot of general misunderstanding about trauma.”
In Scotland, section 275C of the Criminal Procedure (Scotland) Act 1995 allows prosecutors to call expert evidence at trial. That would help jurors to understand typical psychological responses to rape.
Currently, UK law does not differentiate between stranger rape and acquaintance rape, which both carry a maximum sentence of life imprisonment. Juries understand the evidence for stranger rape, but complex issues about consent in acquaintance rape are not so well understood. A senior police officer said that
“at the moment we are asking juries to do something incredibility difficult.”
That is true. We ask jurors to make judgments about consent to sex where the victim and the accused are known to each other and the victim may have consented to some sexual activity but not to penetration. It is challenging for juries to judge whether the defendant had a reasonable belief that consent was given, especially when drink was involved. That is where myths and stereotypes kick in.
The consent elements of rape, as outlined in CPS guidelines, are that
“B does not consent to the penetration and A does not reasonably believe that B consents”.
The CPS guidelines go on to state:
“Proving the absence of consent is usually the most difficult part of a rape prosecution, and is the most common reason for a rape case to fail. Prosecutors will look for evidence such as injury, struggle, or immediate distress to help them prove that the victim did not consent, but frequently there may be no such corroborating evidence.”
Sir John Gillen called for a
“discernible shift towards a requirement for some measure of affirmative or participative expression of consent and away from a focus on resistance as a means to prove the absence of consent.”
I have the greatest respect and admiration for members of the public who do jury service, some of whom have to sit through evidence of the most horrifying and brutal crimes inflicted by one person on another. Serving on a jury is indeed a public service. However, I return to my original figures. Juries are reluctant to convict young men of rape. It is no use wringing our hands about that. We cannot have a situation in which young women who have been raped feel that they have no access to justice, because that undermines the whole justice system.
Ministers need to take strong action, including a fundamental review of the whole system. They must take the lead to forge better public understanding of rape myths and what constitutes consent. Sir John Gillen, who suggested a large-scale publicity campaign and training for juries, said:
“Jurors don’t just land from the moon, they are people like you and me.”
A perfect storm is developing in which juries are reluctant to convict young men who are charged with rape, so the CPS is reluctant to prosecute and the police are therefore reluctant to refer. The result is that victims will stop coming forward and young women will be denied justice. The danger is that we will be thrown back to the dark days, when victims of abuse were silenced and dared not speak out.
[The Parliamentary Under-Secretary of State for Justice, Lucy Frazer]
It is a pleasure to serve under your chairmanship, Mr Hosie. I am grateful to the hon. Member for Stockport (Ann Coffey) for securing this incredibly important debate. She has done a significant amount of work to support young people in the criminal justice system and is a committed advocate for victims of sexual exploitation. Thanks to her hard work, all references to “child prostitute” were removed from legislation and the victims are properly recognised.
Rape is an extremely serious criminal offence that can lead to lifelong trauma for victims and their families. I take extremely seriously the great courage, support and perseverance it can take for victims to go through the criminal justice system in pursuit of justice—the bravery it takes to report the crime to the police, and the emotional strain and trauma of having to recount details of the incident to the police and then the CPS during the investigative stages. We know that the court process is often intrusive, uncomfortable and intimidating. It is vital that our court process should not aggravate and compound the victim’s experience.
In responding to this important debate, I will highlight the importance of evidence in this area, say what the Government are doing to protect rape victims, and finally look to the future. The hon. Lady, who began her speech with the facts she obtained in response to an FOI request, is aware of the importance of evidence and rightly highlighted a number of important statistics. She is right to underscore that more people are coming forward to report rape, which is very much to be welcomed, and to recognise that that huge social change followed much work by campaigners and a change in attitude towards women. She also highlighted that, despite that rise in reporting, the number of prosecutions has fallen. That is disappointing and worrying.
The hon. Lady said that convictions are falling. Although that is true for the period 2017-18, it is interesting to note that in June 2018 the conviction rate for sexual offences was at its highest in a decade, at 68%. It is therefore possible that, when cases reach court, they are more likely to result in a conviction. She also rightly pointed out that there are fewer convictions in cases where the complainant and the accused are known to each other and aged between 18 and 24.
In those circumstances, this is an important debate. We need to look into these issues to ensure that reports of rape are taken seriously at every stage of the process. At the heart of the debate are the questions why convictions are not being secured and why juries are not convicting. The hon. Lady said she believes there is reluctance on the part of juries to find young men guilty of rape because of rape myths in our culture. There is a fear that some believe that women who have drunk have only themselves to blame, and that juries acquit on the basis of their prejudices and attitudes to rape, rather than the facts and issues before them.
If that were right, it would be appalling. Women who come forward should have confidence that they will get justice. They should be judged on the facts presented to the court. It is important when we consider changing policy that those changes are driven by evidence, so I am pleased that we are currently analysing this important issue and looking at the reasons why juries come to their conclusions in rape cases. As the hon. Lady mentioned, Professor Cheryl Thomas, the leading academic expert on juries and jury research, is currently considering these issues. She has been commissioned by the president of the Queen’s bench division to conduct empirical research with jurors to help inform our understanding of the impact of rape myths and the development of future training and guidance for jurors.
Professor Thomas will be considering two things that are pertinent to this debate: first, to what extent jurors who have served on real trials believe myths and stereotypes about rape, and secondly to what extent further guidance to jurors, in the form of educational materials, might be helpful in ensuring that myths and stereotypes are not applied in cases of rape or sexual offence. That evidence will help us to understand the bias of juries and help to inform policy in that critical area. Once we have the evidence base, we can consider the matters identified by the hon. Lady, who raised interesting and important questions.
Protecting women—particularly young women—when they go through the criminal justice system is vital to ensuring justice, and across Government we are taking a number of steps in that area at every stage of a woman’s journey. During the initial stages of a complaint the Metropolitan police has trained officers and frontline staff to deal with victims of rape when they first come forward, to ensure accurate recording. All CPS prosecutors who work on rape cases have specialist training on stereotypes, rape myths and consent. The CPS has almost doubled the number of specialist prosecutors in its dedicated rape and serious sexual offences unit, and it has enhanced training and improved the support that it offers to victims through criminal proceedings.
When a victim goes through court, we must ensure that they are protected and get justice. We are committed to rolling out pre-recorded cross-examination of vulnerable witnesses in Crown court centres in England and Wales. The review of disclosure by the Attorney General’s Office, published on 15 November, referred to the importance of ensuring that complainants are not subjected to unwarranted intrusion into their privacy, or deterred from reporting offences or participating in the criminal process. The 2018 “Crown Court Compendium” builds on existing guidance, giving more examples of possible directions and listing situations in which jury directions may be needed in a rape case. Judges can sit on sexual offences cases only if they have undertaken specialist training from the Judicial College. More broadly, we have protected funding of more than £6.4 million for 85 rape support centres across England and Wales, and we have committed to continuing investment—£4 million a year until 2020-21—in sexual assault referral centres.
Let me turn to the questions that the hon. Lady raised about solutions to this problem. She highlighted a number of important questions, and we are thinking carefully about how we can educate jurors in this area. As I mentioned, however, it is important that we approach this issue on the basis of evidence. The judiciary rightly maintain that any course of action should be well considered and informed by empirical evidence, and therefore we will await the outcome of the review by Professor Thomas before taking any steps.
The hon. Lady mentioned a number of important statistics, but it is worth pointing out that there is conflicting evidence on the behaviour of juries in rape cases. In the year ending December 2017, approximately 44% of 5,784 not guilty pleas for sexual offences resulted in a conviction—a higher figure than for robbery and offences of violence against the person. In the same year, the sexual offences acquittal rate was close to the average acquittal rate for all offences at 56%, and that was lower than the acquittal rate for offences such as the possession of weapons and theft, which were both at 60%.
I am conscious that gender stereotypes unfortunately exist in our society, and I am aware of concerns that they can create an environment that enables violence against women and girls. As jurors are picked from society as a whole, it is possible that rape myths sometimes have an impact on juror decision making, but more research is needed firmly to establish that link. For that reason, I ask for the House’s patience while we await the results of research that is due to report in the new year. I will keep the hon. Lady updated on any developments, and I will be happy to meet her when that evidence is produced.