Decriminalisation of rape and sexual abuse

Although reporting rape and sexual abuse incidents has increased in past years, the conviction of prosecutors has decreased rapidly. According to the Home Office, rape complaints now have less than a 1 in 70 chance of a complaint resulting in a conviction.

 

.So, what is the problem? The criminal justice system and agencies manage sexual abuse and rape claims on the basis of how credible the victim is. The victim’s credibility – in essence, how believable a woman is, is assessed at every point during the process. Rather than alleviate matters, what this does is actually make the woman re-traumatised, forcing her to re-experience the horrors of her experience. In turn, this only works to demoralise the victim, rather than offer her hope and comfort.

Rape and sexual violence are very personal experiences. The way these women experience such events should be viewed under the different lens of; race, age, sexuality, religion, ethnicity, migrant status and socio-economic status. Then, to understand the real issues at the centre of our criminal justice system, we must better understand the ‘wide-ranging and intersecting structural inequalities’, as Imkaan (2020) claims.

 

Although the law has not decriminalised rape and sexual violence in writing, the low number of prosecutions, let alone convictions has meant that in practice, ‘rape and sexual abuse have been effectively decriminalised’ (Imkaan, 2020). However, this is not to say rape and sexual violence are not common – they are! According to Imkaan’s report, based on ONS 2018 figures, around 6.5% of adult women have at some point been raped. This figure can only grow under the current circumstances, with lockdown and movement restrictions which encourage more time spent at home, often with the perpetrator.

 

Consent becoming a blurred line and social media

The cause of rape can vary, but something which is clear is that the sexual abuse phenomenon is very much to do with the sexualisation of young girls and women, encouraging harmful ideology and behaviour by men. Issues surrounding consent are also becoming blurred, when in reality, consent should only be signalled by the word YES. However, increasingly, the line has become blurred so as to allow; ‘maybe’, ‘no’, silence and absence of a clear yes to also mean YES.

At P.H.O.E.B.E., we want to raise awareness that consent should not be complicated. On social media the hashtags #ibelieveher and #MeToo, the latter of which got the attention of Hollywood celebrities also, caused a huge uproar on the topic of rape and sexual violence worldwide. However, social media, and indeed the way in which our society works, including the justice system, is much more concerned with the potential damage to a man’s reputation. Systemically tackling domestic violence, rape and sexual abuse then takes a backseat. That ought not be the case.

Mental health

At P.H.O.E.B.E., mental health is a priority – there are common experiences of all women who have suffered from rape and sexual violence. These include but are not limited to: 

• Mental health issues such as; depression, anxiety, suicidal thoughts, PTSD, eating disorders etc
• Substance misuse such as; alcohol and drugs.
• Breakdowns in family and personal life, loosing networks with friends and family;
• Disruption on education and employment.

#YouAreNotAlone

In light of the COVID pandemic, the British government raised awareness that victims of domestic abuse would not need to remain in isolation or follow social measures if they were in imminent danger.

#ANI

A new scheme was also recently introduced by the government in association with Boots chemists and some private pharmacies. Women who are in danger or need urgent support, can go into their local pharmacy and use the code phrase, ANI (pronounced Annie). The staff will take them into a safe room and provide assistance. This is a valuable tool introduced by the government, and P.H.O.E.B.E. would like to raise awareness of this.

The law as it stands (statutory and common law understanding)

The modern legal understanding of rape is set out in the Sexual Offences Act (SOA) 2003 at s1:

Rape

(1) A person (A) commits and 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.

(2) 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.

The Sexual Offences Act additionally incorporates other offences including:

• S.2 Assault by Penetration
• S.3 Sexual Assault
• S.4 Causing a person to engage in sexual activity without consent
• Ss.5-8 Offences against a child under 13 21
• Ss 9 – 13 Offences against children under 16

The statutory definition (definition provided by parliament) of rape is found at s74 of SOA 2003 as:

‘… a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’

The statute then complicates matters by providing two additional hurdles – evidential presumptions (when present, the presumption is that there was no consent, but this can be revoked) and conclusive presumptions (when present, the law will assume consent was absent).

S75 SOA Evidential Presumptions

• (a) Violence against the complainant;
• (b) Complainant made to fear violence;
• (c) Complainant falsely imprisoned;
• (d) Complainant asleep or unconscious;
• (e) Complainant has a physical disability affecting communication;
• (f) Complainant stupefied by drugs administered by D or another

S76 SOA Conclusive Presumptions

• (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
• (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
• When it comes to the belief of the defendant (D) (perpetrator), it must be objectively reasonable – in essence, D must have reasonably believed according to the standard of the objective reasonable man, that the victim consented. This new amendment to consent made by the SOA 2003 was seen as trying to protect victims from the previous definition of consent wherein belief did not have to be reasonable, but only honest. This allowed preparators more protection, making it incredibly difficult for victims to achieve justice.

Cuts in public sector

With 2010 came drastic cuts in the public sector, ones which continue to have an adverse impact on sexual abuse and rape claims. The adverse impacts of cuts mean:

• Under-resourcing and reduced support for victims;
• Some specialist sexual offences units being closed down by the police to save money;
• Basic police errors and missed steps in investigations;
• Huge delays;
• Cumbersome processes;
• Cases being lost in the system or maladministration taking place with little efforts being made to remedy this.

So what? Well, these impacts all lead to one bigger and overreaching impact – the loss of trust for victims in the justice system and local authorities.

The approach of police authorities

Training has been given to police officers to ensure a ‘pro-belief’ approach is adopted. This means that officers are trained to start from the conclusion that the woman is telling the truth, working with any new evidence which might disprove this. The College of Policing, in 2016, introduced a national policy implementing this, which stated:

‘At the point when someone makes an allegation of crime, the police should believe the account given and a crime report should be completed’.

There is also now a duty on the police to investigate claims of rape and sexual abuse. In 2018, the European Court of Human Rights (ECtHR) held that rape and sexual abuse does amount to ‘torture’ and ‘inhumane treatment’ as per Article 3 ECHR. Therefore, the state has a positive obligation to protect women from such treatment; this includes a duty on police to investigate rape and sexual abuse claims. This is an important step in the right direction, particularly due to the nature of our justice system being adversarial. This means that in court, the jury will only hear the arguments from the prosecution, and the arguments from the defence, forced to base its decision upon the evidence presented. The jury and judge cannot compel further evidence or investigate deeper. This is why, placing a positive duty on police to investigate the case before it reaches trial, can make a big difference for victims.

Currently making its way through parliament, the Domestic Abuse Bill will set in stone a real definition of domestic violence in light with the Istanbul Convention which seeks to protect women from abuse.

Lastly, it is important to raise awareness, so that we may perhaps hope to ratify the way in which police authorities investigate such cases. Very often, they use invasive disclosure practices, which often make victims feel as if they are the ones being investigated. Searching through very personal belongings, such as phones, can make victims as if they are being violated once more (see Imkaan report 2020 for quotes from victims). This intimate searching has proven more dangerous for migrant women with an insecure immigration status, which fear deportation or arrest

Improving the justice system and raising awareness

For some, the criminal justice system does not represent protection, but rather a place filled with inequalities. One example of an inequality, is the attitude of the criminal justice system to perpetrators who are white – they are less likely to be convicted or arrested, especially if their victim is a BAME woman (Hohl and Stanko, 2015).

As it stands, black, minority and migrant women face additional obstacles when it comes to accessing justice. These include but are not limited to; being silenced by their families, community pressures and accessing support from local authorities based on their immigration status.

The jury can also present a hurdle for minoritized women – since rape is an ‘indictable only’ offence, it must be heard and decided by a jury in Crown Court. The judge can only intervene to clarify matters of law for the jury, but has no role in assessing whether a defendant is guilty. The burden lies on the jury – members of the public who get to hear all the evidence and make a decision. This is where stereotypes and myths about rape can get in the way of a truly objective approach, and where BAME and migrant women may suffer even more inequality. If the jury arrives at court with their mind made up, or about how a real victim would behave, the prosecution (victim) will have a tough time trying to correct these stereotypes.

Moreover, as it stands, the burden of proof is on the prosecution (victim). In other words, the prosecution must convince the jury beyond all reasonable doubt, that the man in question is guilty. All twelve members of the jury must be convinced that the man committed the crime. The courts then, is also often a traumatising place for victims. Cross-examination and the constant need to prove the credibility of the victim while proving the guilt of the abuser make things difficult for women. Cross-examination of the victim is the process wherein the defence (perpetrator) gets to question the victim in front of the jury and audience. The whole process seeks to discredit the reliability of the woman’s story, something which puts many victims off, and rightly so (see Imkaan report 2020 for individual case studies at pg93).

The experience of BAME and migrant women in courts are often much worse. Myths surrounding rape and sexual abuse have meant these minority women are often told that being raped is surely part of their culture.

What we have seen in recent years and figures is a decline of cases going to court, coupled with the decline of convictions, showing just how much the justice system is failing women. In 2019, only 1% of cases recorded were convicted (Imkaan report, 2020). But the even bigger problem, is that a lot of victims never get to access the criminal justice service. Many BAME and migrant women do not even engage with authorities and report the abuse.

The accessibility of the justice system is a much bigger problem for BAME and migrant women, and women who come from a poor background. Lengthy trials and overwhelming amount of information can mean these women are often not fully aware of their rights, or have difficulty understanding the justice system. In turn, this will make them more vulnerable during the trial – remember, the jury must be convinced the victim is telling the truth and the perpetrator is guilty. Imkaan found that having to ‘disclose events to a new interpreter each time’ is very traumatic. To improve the justice system, access to reliable interpreting and appropriate arrangements should be made. For the changes to be truly effective, they must be made with these BAME and migrant women in mind, and with the collaboration of specialist sexual abuse and domestic violence services.

A focus on mental health should also be priorities so that women feel safe during the process. As discussed in detail above, cross-examination can be traumatising for women; the right kind of mental health support should be available throughout. More action needs to be taken by our legislators, authorities and by us, to ensure that we start believing these women, rather than doubting them. A touching story from a victim is included in Imkaan’s 2020 report:

‘…I’ve been struggling a lot with PTSD. Bad anxiety, I can’t sleep, I get flashbacks. I don’t get in taxis, ever. And I don’t go to that part of town. But it’s actually the trial I think about more than what he did to me. At every stage of everything I said, there was evidence…there’s the CCTV showing me not able to stand, the barmaid, my friends, my neighbours, the man who heard my screams, all witnesses. My torn dress, the fact that his story kept on changing. All the forensics, the injuries…I don’t know how you can see all of that and think ‘yeah, she was up for it’’– (Victim/ survivor in BBC, 2020)

Similarly, action needs to be taken to remove institutional racism. For example, black women should not be seen as ‘the angry black woman’ who has nothing meaningful to say. BAME and migrant women often feel like they are perceived differently by the jury because of their race, religion or immigration status. More resources should be invested in specialist services ‘by and for’ BAME and migrant women which often go a long way in supporting victims of violence and rape.

More needs to be done so that the criminal justice system is actually perceived as a route to justice for BAME and migrant victims. The over-policing of migrant women who seek to report abuse or rape but end up being arrested themselves has left many women having to make a dire choice between reporting and facing deportation or remaining at the hands of their abusers, silent. The global #BLM protests of 2020 highlight the fear, distrust and disappointment in the justice service.

Summary

This blog post has sought to raise awareness on some of the key issues surrounding sexual violence and rape in the UK. An emphasis has been placed on BAME and migrant women, since this is the main focus at P.H.O.E.B.E. However, these issues are not newly found, they have been around for some time.

Since the beginning of lockdown in March 2020, cases of domestic violence have risen in the UK. The government has seemingly tried to raise awareness, with the Prime Minister starting #YouAreNotAlone, a nationwide campaign. Although this has raised some awareness, more needs to be done to help individual women, particularly those from a BAME and migrant background, who may not have unfettered access to such a scheme. The newly introduced #ANI code phrase to be used in pharmacies may prove critical in urgent situations – this remains to be seen.

The mental health of victims should also be prioritised, as often, the experience of trial can be just as traumatising as the rape or abuse which originally took place. The added pressure of a biased jury, or one with misconceptions and prejudices can only make the process for BAME and migrant women harder. Police authorities should also be better instructed as to how they carry out investigations, so as to not make victims feel like they are the ones being prosecuted. More protection for migrant women should also be offered – women should be seen as victims first; their immigration status should not have to prevent them from seeking support and safety which the justice system ought to offer them.

More money and resources need to be invested in sexual abuse and rape specialist services dedicated to BAME and migrant women, such as P.H.O.E.B.E. These women can often suffer additional barriers to the justice system, meaning they will need further support tailored to their needs.

This report has set out the current legislative authority for definitions of rape. Domestic abuse is yet to gain statutory meaning, but the Domestic Abuse Bill currently in parliament should help matters. This report has also raised problems surrounding common misconceptions of rape and sexual violence – such as consent, and the way in which victims are often perceived. What P.H.O.E.B.E. hopes to do is raise awareness of these issues so that they can one day, be remedied. The blame should never rest on victims, and they should never feel ashamed or afraid to come forward. Society should instead instil a fear in perpetrators, making them feel ashamed, rather than understood and dignified.