Is the justice system failing rape victims?

Written by Luna Webster

“I saw someone yesterday who was given a date for this week for a trial from something she reported three years ago and it’s now been put off until September.”  Mairi McAllister has been a support worker at the Fife Rape and Sexual Assault Centre for 11 years now. In this time she’s had a magnified view of the justice system’s complexities when it comes to sexual offences, standing by her clients through success, failure and all round confusion.

“I don’t think people have any understanding of how complex it is before they report,” Mairi contemplates, “They find out the reality is very different and a lot of people have said ‘I wish I hadn’t reported it. If I had known it would be like this I wouldn’t have reported it.’”

Rape is a crime that’s aftermath demands a full and attentive support group around the victim in order to ensure they don’t feel isolated or become depressed. So why does the justice system appear to offer anything but that? The legal process requires victims do all they can to prove that they were raped. This involves standing as witness in trial, being exposed to intense cross examination from the defence and constantly repeating the most intimate details of their attack. The pressure put upon victims to relive their worst nightmare over and over can have an incredibly negative effect on them, according to Mairi.

“I think it takes a heavy toll on them,” she states solemnly, “The effect of the waiting, the not knowing if it’s going to court, when it’s going to court…there is no way to go into counselling effectively and begin your life again, because everything’s on hold really. It just stops until the legal process is finished.

“When women are going into court they’re expected to prove that they were raped, it’s one of the crimes where the victim is actually on trial.”

“Chloe” was raped by an older boy at the age of 14 and agrees that the law’s requirements can make life difficult for victims. “I will be standing as witness and I am terrified. I feel it is all too easy for people to call me a liar, which nothing can be done about.”

“Chloe” has been encouraged to change the charge against her rapist in order to simplify proceedings. “Instead of charging him with rape, I can charge him with having sex with someone underage, as [the police] have solid evidence that he did have sex with me. Although they assured me that they believe it was rape, they told me it is extremely hard to prove and that the other option would still put him on the sex offenders list.” She believes this choice has a higher chance of protecting girls from him in the future, but it isn’t the outcome she originally wanted.  Rape is just too difficult to prove in the current system and so rarely results in conviction.

In Scotland, the conviction rate for reported rapes is a mere 7%. This means that last year, out of the 1690 rapes that were reported to the police, only around 120 ended with the perpetrator being sentenced.  So why is getting a conviction so hard? Mairi McAllister thinks it has a lot to do with something known as “corroboration”. In Scots Law, statements must be backed up with sufficient evidence – this is corroboration.

Scott McKenzie, solicitor at Martin Johnston and Socha, explained to me why the requirement is so controversial. “There were recent proposals for them to abolish corroboration and certainly it was argued on quite a lot of bases that that would lead to a likely increase in the number of rape trials that actually do continue to court.” However, Mr McKenzie felt that the justice system found the pros outweighed the cons in the need for corroboration. “It’s always been felt quite strongly by the majority of defence agents that corroboration is still very important in law to prevent any miscarriage of justice or wrongful convictions.”

So, if corroboration isn’t going to be abolished any time soon, what else can the justice system do to improve its current conviction rate for rape? With rape actually increasing – by 23% since 2013 despite general crime levels going down – it seems like now more than ever, victims should feel confident in the law.

Of course, the vast majority of rape trials use a jury, so societal views do affect the legal process too. Mairi is concerned that current attitudes and misconceptions towards women and sexual offences could play a large part in keeping that conviction rate so low. “If someone can get through the justice system and meet all the criteria necessary to get into court, then it’s do with society’s attitudes, people’s attitudes.

“What they may see might not match what their perception could be of what they think victims should look like, behave like, and I think there’s still an awful lot of problems around the perception of how women behave.”

Unfortunately, sometimes those with significant authoritative power can have views like these. Back in February of this year, British judge Justice Males called a victim of rape “extremely foolish” for drinking too much prior to her brutal attack outside a of nightclub in North Yorkshire. In the same month, barrister David Osborne made a blog post titled “She Was Gagging for It” in which he stated “If the complainant…was under the influence of alcohol or drugs, or both, when she was ‘raped’, this provides the accused with a complete defence.” Surely this nature of pinning blame on the victim rather than focusing on the attacker puts society in danger of not taking rape seriously – which could prevent real justice from being made in courts up and down the country.

Recently in the media there has been a lot of discussion surrounding false allegations leading on from both the controversial Ched Evans trial and the huge surge in reports of historic sexual offences following the exposure of Jimmy Saville’s crimes in 2011. However, despite public and media speculation over who is and isn’t lying, statistics show that for every 161 prosecutions for rape, only one person is charged with making a false allegation.

Mairi thinks that extensive reporting of false allegations harms the way victims are perceived. “The numbers of false allegations [of rape] are exactly the same as they are for any other crime; it’s about 2%. There are not lots of innocent men in prison.”

I conducted a survey to see how the public feels about the way the justice system treats victims of serious sexual offences. The results showed that overwhelmingly 97.8% of people believed the legal process failed victims of rape – and the respondents had a lot to say about it.

One anonymous respondent was a survivor of a sexual offence and claimed the media was equally as guilty as the law in the sense of putting responsibility for the crime on victims. “There is a ‘blame the victim’ thing happening in the media. Girls are blamed for clothing choices or alcohol consumption…With gay men – I have been a victim – it can be seen as ‘well, you’re both male and gay. You must have known what would happen’ etc. It’s not about that. It’s choice. Choice to wear what you want, drink how much you want, hang with other gay males…Without the ‘well, you’ve brought it on yourself’ line coming out.”

As a victim of rape herself, “Chloe” believes that education could be the key to changing attitudes and therefore improving the justice system. The nature of her assault was different to what she had been taught about rape in school as she knew her attacker well. “Being young and naive I never fully understood what had happened at the time.

“At first I thought rape was a guy jumping out from the bushes in the middle of the night to have sex with you, and it was over a year before I realised truly that what had happened to me was rape.”

Because so much time passed between “Chloe’s” attack and her reporting it, the police had very little physical evidence to work with, which therefore made the rape more difficult to prove. Had “Chloe’s” sex education covered rape in a more full and detailed manner, she may have been able to contact police sooner. “I feel there is barely any education about what rape really is and what you can do, especially in schools, considering they spent a lot of time teaching you about how to have sex. I would like to see a lot more education on rape in the future, so people who have been raped understand what their options are.”

It is undoubtedly a very difficult and laborious process to go from reporting a rape to actually seeing your attacker convicted. Some improvements are being made to the system that will help victims go through the procedure with confidence though, for example, if victims are deemed unfit to stand trial by the Procurator Fiscal they could be able to give evidence via a video link. Though this still forces them to explain upsetting details to a room full of people, it takes away the pressures of physically facing their abuser, which could be a huge barrier to them being able to speak coherently.

For “Chloe”, her ordeal is not yet over and it won’t be until a decision is made by a judge later this year. Until then she will have to wait patiently and hope that justice will be served. “It may have happened a long time ago, but it haunts me every day and it completely changed my life. Knowing there are so many others out there suffering like me, who cannot get the justice they deserve really concerns me. Although the police have helped me along the way as best they can, I feel there has to be a lot more education on the subject for children and young people if it is ever going to improve.”

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