Rape Survivors And The Criminal Justice System

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Rape survivors and thecriminal justice systemOctoberSubtitle2020Julian MolinaSarah Poppleton0

AcknowledgementsWe would like to thank Rape Crisis England & Wales, End Violence Against Women, Imkaanand Survivors Manchester for their invaluable advice on designing the request forinformation and for helping us to disseminate it. We would also like to thank the otherorganisations that helped with dissemination.This research report was reviewed by a group of academics and analysts who work incriminal justice. We are grateful to Professor Iain R. Brennan, Billy Gazard, Professor AishaK. Gill CBE, Dr Olivia Smith, Dr Jacki Tapley, Dr Dom Willmott for their comments.Most of all, we would like to thank those people who responded to our request forinformation for giving their time and their emotional effort to help us understand theirviews and experiences.1

Executive summaryAbout the research Four hundred and ninety-one survivors of rape responded to our request forinformation about their experience of the criminal justice process, which was open forsix weeks, commencing mid-June 2020. Participants were sought through theVictims’ Commissioner website and social media, with further dissemination byvictims’ service agencies who kindly agreed to support this research. The Victims’ Commissioner said on a video linked to the invitation to participate thatshe would not wish anyone to respond to the request for information if there was arisk of them being re-traumatised or suffering any other personal harm by doing so. We cannot claim that this self-selecting group of respondents is representative ofall rape survivors and we know that some groups were over and underrepresented in our data. In particular, we had a high proportion of respondentswhose cases proceeded to charge and to court, and a low proportion whoactively withdrew from the criminal justice process.The reasons rape survivors do not report Twenty-nine per cent of our sample had not reported the incident to the police andthe most important reason for non-reporting emerged as ‘didn’t think I wouldbe believed’, which 95% of this group considered important in their decision-making.The importance of feeling believed was an overarching theme across this research,and survivors often gave a sense that their credibility was being tested byrepresentatives of the system. Survivors also anticipated that they would not receive procedural justice1 or successin court, so they pre-emptively took the decision to opt out of the process.Being treated fairly and with respect Forty-eight per cent of survivors who reported felt they were treated withsensitivity, fairness and respect by police at the reporting stage. There was anupward trend by date of reporting in the proportion of survivors agreeing the policetreated them with sensitivity, fairness and respect at the reporting stage: 54% ofsurvivors who reported in 2018 and after agreed they were treated in this way. There were many accounts of officers who treated survivors sensitively and madethem feel believed, comfortable and supported. However, there were also manyaccounts of the opposite: officers who were insensitive and made the survivor feeldisbelieved, judged and at fault. Some felt their experience was minimised or thatpolice discouraged them from progressing their complaint.Procedural justice is the degree to which someone perceives people in authority to apply processes or make decisions about them in afair and just way.12

Survivors’ experience of police investigations Survivors were asked their level of agreement about a range of statements on thepolice investigation. Fifty-seven per cent said they were kept informed about allthe actions police took. However, 82% agreed with the statement that there werelong periods when they heard nothing, and 70% agreed that they (or theirrepresentative) had to chase for information. Just 33% agreed that the police clearly explained why any request to accessmobile phone and other personal data were necessary, and 22% that theyexplained how they would ensure that data would only be accessed if relevant andnecessary. Requests for these data were often considered invasive andintrusive, and survivors had serious concerns about this. While just over two thirds of the survivors whose complaints were concluded as ‘nofurther action’ by police recalled being given a reason, only a third felt they were toldthis clearly and promptly. The decision felt devastating to many survivors andsome used language implying re-traumatisation by the system. For example,one wrote of feeling, ‘broken, disgusted and traumatised’.Survivors’ experience of the Crown Prosecution Service There was higher recall of being given a reason for not prosecuting by the CrownProsecution Service (CPS) compared to the police. Those who had subsequentinteractions with the CPS tended to find these insensitive. They were also frustratingin that they made no difference to the outcome not to prosecute. Again, the effecton survivors was often devastating.Survivor attrition Among those who chose to put the offence on record only (for reasons such asprotecting future survivors) and those who actively withdrew from the process, therewas a sense of fearing being disbelieved or judged, as well as anticipatory concernsabout the low chances of success. There were also more personal reasons for notsupporting the process, such as wanting to get on with their lives and fear of theimpact on their mental health.Independent Sexual Violence Advisers There was a promising link between receiving professional support and continuing inthe process: 10% of those who received help from either an Independent SexualViolence Adviser (ISVA) or other support service chose to take no further action orwithdraw support, compared to 20% of those who did not have this. The benefit tosurvivors of receiving such support was a recurrent theme in this research.Survivors’ experience of court Survivors whose cases went to court were asked their level of agreement with arange of statements about their experiences in court. Well over three quarters agreedwith the prompted statement that the cross examination was traumatising, the vastmajority strongly agreeing. Positive statements around communication (informationprovision, explanation of case outcome) received low levels of agreement. Overall,survivor’s ratings and accounts of their experiences emphasised howtraumatic the court process can be.3

Survivors’ attitudes to the criminal justice system To gauge overall levels of confidence, we asked survivors’ level of agreement with arange of statements about how well rape and sexual offence survivors are treated bythe system. Just 5% strongly agreed and a further 9% agreed that survivorscould obtain justice by reporting to the police. Agreement that the police, CPSand courts were fully supportive of survivors was also low. The only statement thatachieved more widespread agreement was that survivors of rape and sexualoffences are fully supported by victims’ services, at 45%. Recency of reporting and exposure to the system were both associated withhigher confidence in support from criminal justice agencies, although theyremained at low levels. Those reporting more recently tended to be more likely toagree that survivors are fully supported by the police, the courts, the CPS andvictims’ services. Those whose cases were charged were more likely to agree inrelation to the support of the police and victims’ services. However, there were nodifferences by recency of reporting, or whether or not their case was charged, inlevels of agreement that survivors can get justice by reporting to police.What rape survivors want from the criminal justice system Overall, we conclude that survivors want to be treated sensitively, fairly, respectfully,and to be believed. They also want criminal justice system professionals to betterunderstand trauma and provide clear and timely information. They need to be offeredthe best possible access to ISVAs and support services. Please turn to section 9 fora fuller discussion of our overarching research findings.4

ContentsAcknowledgements . 1Executive Summary . 21. Introduction by Dame Vera Baird QC . 62. Overview of the research and the report . 83. Reporting rape to the police . 114. Police investigations of rape complaints . 205. Crown Prosecution Service decisions not to prosecute rape complaints . 326. Rape survivor attrition: not taking further action and withdrawal . 377. Courts and rape trials . 448. Rape survivors’ attitudes to the criminal justice system . 519. Key research findings. 57Annexes . 621.Respondents to our request for information . 622.Methodology . 653.Rape survivors’ entitlements under the Victims’ Code . 685

1. Introduction by Dame Vera Baird QCReports to police about rape have increased hugely in the pastfew years but the CPS prosecute fewer of them and police arenow referring fewer on to them for charge. In 2019/20 therewere 55,000 reports of rape to the police, but only 1,867 casescharged.2 In 2019/20 only 1.4% of reported cases werecharged.3 In addition, the proportion of victims who withdrewtheir support for their case steadily increased (from 25% in2015/16 to 41% in 2019/20). In 2019/20 rape convictions werethe lowest on record.So, early in 2019, the Government launched an End-to-EndReview of how the criminal justice system deals with rape. Much work has been done, but theReview team took the surprising decision to seek very little direct input at all from rape survivors.My view as Victims’ Commissioner for England and Wales is that it is imperative that the victim’svoice is heard.Consequently, our own researchers took on the task of asking rape survivors for their experiencesof the criminal justice system. They drew up a questionnaire in consultation with the Review teamand sexual violence charities and we put it up on our website for six weeks this summer.Four hundred and ninety-one rape survivors responded. I want personally to thank them all for theirbravery and public spirit in contributing their valuable experience. It is a self-selecting group ofrespondents - not a representative sample - but it is a sizeable group and the unity of their views iscompelling.Ninety-five per cent of survivors who didn’t make a report to the police told us that a key reasonwas fear of being disbelieved.The second most frequent reason for not reporting was belief that the case would not beinvestigated or prosecuted successfully ‘because of my gender, sexuality or lifestyle’ (88% ofnon-reporters).Crucially, this suggests that survivors fear the impact of societal rape myths on their credibility such as that police regard a high number of rape complaints as false and that only a ‘perfect’model victim will be believed. Other research4 shows that there are no more false complaints ofrape than of any other crime; it is common sense that few of us would be a perfect model victim. Ifrape is to be tried fairly and fear of prejudice is deterring complaints, this is a major challenge forthe criminal justice system.And these were not merely views held by non-reporters. Only about half of survivors agreed thatpolice officers treated them with sensitivity, respect and fairness at the reporting stage(48% of earlier complainants improving to 54% for the most recent).Others felt that they were disbelieved, judged or treated as if they were at fault. They reportedthat their credibility was repeatedly tested and they felt that they were under investigation.In 2018/19, 55,771 rapes were recorded by police, and in 2019/20, 55,130. These figures are the highest since records began. See: SummaryTable 3: Police recorded crimes – rate, number and percentage change for year ending March 2020. Crime in England and Wales Year EndingMarch 2020.3 Home Office, Crime Outcomes in England and Wales 2019 to 2020.4For example, Kelly, L. (2001). Routes to (in)justice: a research review of the reporting, investigation and prosecution of rape cases.26

Requests to access their mobile phone data made this worse, a majority feeling that this was notsufficiently justified or explained, and that it felt intrusive.Clearly, being believed and taken seriously by police is a critical factor when survivors considerreporting rape or sustaining a report they have already made.Survivors’ accounts were peppered with language which expressed that the system re-victimisedthem. The police decision to take no further action and the CPS decision not to prosecute werefrequently devastating. For some, this also seemed procedurally unjust: for example, evidence wasnot considered, avenues not pursued, or reasons for discontinuance not justified. Those who hadsubsequent interactions with CPS tended to find them insensitive and were frustrated as, inno case, did it make any difference to the outcome.Amongst those who got to court, a majority felt they were treated fairly and with respect by judgesbut over three quarters found cross examination traumatising. The Criminal Bar trains itsmembers how to cross examine without re-traumatising people but only a handful of thesesurvivors said that defence lawyers treated them fairly. Shockingly, more than 20 years after crossexamination on previous sexual history was restricted by law, nearly two thirds reported that theywere questioned about it.The only bright spot of the research was the praise for Independent Sexual Violence Advisers(ISVAs) who, with other support services, are highly valued. The research shows them makinga real contribution to the criminal justice system overall; only 10% of those who had an ISVA orsupport service chose not to pursue their case, compared with 20% of victims who had neither.Overall, just 14% of these respondents agreed that ‘survivors of rape and sexual offencescan get justice by reporting an incident to the police’. A full 75% actively disagreed and mostrespondents (71%) had had experience of the system before expressing that view. This is adepressing summary.Three quarters of these rape survivors did not think that they could get justice. Many did not evenreport to police since they expected to be disbelieved or sidelined because of their sexuality orlifestyle. It is very disappointing that those who did report, to some extent, proved thosereservations correct: many indeed felt disbelieved, cases were dropped with devastating impact oncomplainants, little empathy from the prosecution service and clear concerns that decisions not tocharge were made despite good evidence. The few who got to court were traumatised by crossexamination which often included questions precisely about lifestyle and sexuality which haddeterred others from reporting in the first place.When launching the Government’s Victims Strategy in 2018, the previous Prime Ministeremphasised that the trauma of being a victim of crime:‘Must never be compounded by an individual’s experience of the criminal justice system.’‘All victims of crime have a right to know that the state is on their side.’On this evidence, these laudable intentions have not begun to be realised for rape survivors. Tothem the criminal justice system is bound to fail and, worse still, to do so in a way that re-victimisesthem. If survivors of this deeply damaging and highly prevalent crime are to feel that ‘the state is ontheir side’, the Government’s End-to-End Rape Review must produce radical culturaltransformation across the criminal justice system.Dame Vera Baird QCVictims’ Commissioner – England and Wales7

2. Overview of the research and the reportIt is vitally important that survivors’ experiences are considered by any review of the handlingof rape. We need to listen to what matters to survivors and understand what support they arereceiving from criminal justice agencies and how well their needs are being addressed. TheVictims’ Commissioner started this research to better understand survivors’ views andexperiences of each stage of the criminal justice system: from reporting an incident toattending court to give evidence.Throughout the report we refer to survivors of rape, rather than victims. Some of thesesurvivors did not report incidents to the police and some saw the process all the way throughto completed prosecutions. As the research focused on survivors’ experience of the criminaljustice system, we have used the terms perpetrator and defendant as it is appropriate indifferent stages of process. For example, we refer to the defendant when referring to courtand rape trials, rather than suspect, alleged perpetrator or offender.This report draws from 491 responses from rape survivors to a request for informationconducted between June and July 2020. The request was structured to give all rapesurvivors an opportunity to share their experience. We asked survivors to tell us about theirbackground, the sources of support that they received, their experience of reporting anincident or incidents, about the police investigation, police decisions to take no further action,the Crown Prosecution Service’s decision-making, court processes, their reasons forwithdrawing complaints, and their attitudes to the criminal justice system.The report is structured to follow a survivor’s journey through the criminal justice system,from reporting to court. Each section presents a mixture of quantitative findings and athematic analysis of survivors’ accounts (further details about the methodology can be foundin Annex 2). Throughout the report we highlight how survivors were treated and the impactsof this treatment.Respondents to our request for informationBecause the sample was self-selecting, we cannot say that this group is representative of allrape survivors. Of those responding, we had a good spread by most demographic factors,5but there were dimensions which were over and under-represented: most notably, a highproportion of survivors came from London, so when thinking about the police response, aparticularly high number were referring to the Metropolitan Police. We also had a highnumber of respondents proceeding to charge (70 survivors, 14% of the total), which isbeneficial for understanding their view of the court process, but means that this group’sviews may be over-represented elsewhere in the data. Similarly, relatively few survivorswithdrew (17 cases, 3.5%), limiting how much we can conclude about this group. A highproportion had received professional support from, for example, professional counsellors,victim support services and ISVAs. This support emerged as particularly important to ourgroup of survivors and may have contributed to their ability to tell their stories to us.5See Annex 1 for a more detailed demographic breakdown of respondents.8

How far our respondents’ cases had progressed in the

Review of how the criminal justice system deals with rape. Much work has been done, but the Review team took the surprising decision to seek very little direct input at all from rape survivors. My view as Victims’ Commissioner for England and Wales is that it is imperative that the victim’s voice is heard.

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