We need to talk about sex offences. Again.

Sex offences, and in particular the way rape charges are dealt with from start to finish, are due yet another serious conversation. There are no easy answers. It is clear that, aside from a few rotten apples, many hard-working police and prosecutors are between a rock and hard place.

No-one sensible would argue against due process, a fair trial, and the presumption of innocence.

Earlier this year, police and prosecution teams were severely criticised for not disclosing key evidence in rape prosecutions, sometimes material of such obvious importance that their motives in withholding it must be questioned. (see for instance news reports here).

A few months months on and, perhaps in a sign of over-reaction, certain police forces are routinely requesting access to a complainant's phone records, social media, even health and social services records before agreeing to bring a prosecution. This practice is decried by Vera Baird QC, victims lead of the Association of Police and Crime Commissioners:-

“The (rule book) requires that only reasonable lines of investigation are pursued and anything found that may undermine the prosecution or support the defence as disclosed. There is no excuse for a trawl through everything in their life for something the defence can throw at the victim in court to dent their confidence or question their reputation”

The CPS is now also conducting a drive to drop what it perceives as ‘weak’ rape allegations. According to unnamed CPS sources, a recent workshop was designed to improve overall conviction rates by dropping those weaker cases. One prosecutor claims to be quoting a trainer who said “If we took 350 weak cases out of the system , our conviction rate goes up to 61%”

Indeed, last week the CPS’ annual Violence Against Women and Girls report revealed a 23% drop in the number of rape cases being charged. They say rape prosecutions are now at the lowest level in a decade. It must be safe to assume that a proportion of genuine rape victims are not even having their cases prosecuted – because the alternative is to assume that all these people are either lying, or grossly mistaken.

Indeed, lawyers for these rape complainants are preparing to launch a legal challenge against the Crown Prosecution Service’s refusal to prosecute, presumably by way of judicial review/human rights challenge. In this regard, certain victims of the infamous John Worboys were perhaps unwilling trailblazers. (Click here for media reports).

At the same time, we can also assume that a proportion of genuine victims are not being ‘believed’ to the criminal standard at trial. This simply means that sometimes the jury aren’t sure that the defendant is guilty, even though in fact he is. The alternative is to assume that everyone acquitted is in fact innocent. In fact, less than one third of young men charged with rape are convicted after a trial. Are the other two thirds all in fact innocent? It appears that younger women appear to be bearing the brunt of not only the jury’s doubt, but also that of the CPS’ caution. Why is this? What on earth is going on?

Is it simply the standard of proof in criminal matters being too difficult for a 'He-said-she-said' trial?

The criminal standard of proof is high, and some think it makes sex offences too difficult to prosecute. The problem with this theory is that the criminal standard of proof doesn’t cause such a problem in so-called ‘domestic violence’ matters where there is no sexual element. Many of these cases are also ‘one person’s word against the other’ with no objective evidence and no witnesses. But evidence shows that this great credibility contest can, and is, being won by the prosecution (provided the complainant turns up to Court). Conviction rates are much higher. In 2016-2017, out of 91,000 such ‘domestic’ prosecutions, 74,000 ended in conviction.

Is 'the system' institutionally biased against victims of sexual assault, particularly young women?

Many will blame ‘the system’, concluding it must be at fault. Indeed, it is easy to blame 'the system' until one starts actually watching the trials. It then becomes clear that ‘the system’ is actually individual people all doing their jobs extremely well. The truth is that very few judges are insensitive or misogynistic. Very few prosecution advocates are incompetent, or falling asleep. And very few defence lawyers are especially clever (sorry folks). And, despite the occasional anecdote, juries are absolutely not stupid. They are very well-equipped to judge the truth of sexual allegations. Juries can usually assess when someone is telling the truth, and the whole truth. They are able to weigh up evidence fairly and to follow judicial instructions. In the vast majority of trials, it is not as though the jury’s verdict comes 'out of the blue' causing a huge shock to the phalanx of genteel, educated lawyers.

A possible factor - Getting caught in silly lies

So - what is going wrong for truthful victims of sex offences, most of whom happen to be young women?

Perhaps, and this is just one theory, it is the complainant getting caught in what can only be described as silly or peripheral lies. The irony is most of these lies are really subconscious fibs stemming from precisely the apprehension of being adversely judged.

Most people tell small lies every day about a lot of things, i.e. how often they go to the gym, what their new shoes cost, whether they will call you back, whether they have read a particular book, whether they are feeling fine etc etc. It becomes second nature to us all.

David Simon, the Author of ‘The Wire’ which was based on extensive shadowing of Baltimore police department, claimed that everybody, without exception, lies to the police. This includes victims, witness, suspects and even people who have absolutely nothing to do with the case and no discernible reason for lying.

But these lies, however small or peripheral, have got to stop when it comes to a police report of a sex offence. It should be the police’s job to cut through this habit that we all have.

Suppose A contacts police and claims to have been raped by B, the police priority should be to build a realistic and robust case. First, A must be made to understand the importance of gathering forensic evidence. Second, A needs to understand the importance of telling the whole, unvarnished truth. A needs to understand that, where forensic links are very likely, B may well raise ‘consent’ as a defence. So it will be A’s word against B’s. B will be fighting to avoid prison and save their reputation and livelihood. B will be desperate to portray A, in any way possible, as a liar. A needs to properly understand this from the moment the police are contacted.

In this way, the full unvarnished truth is needed from A, as opposed to what might sound more socially acceptable, or what A’s mother might have expected. Getting caught in any silly little lies could lead to a jury doubting everything else A says. All too often, that leads to acquittal. In the great credibility contest, if A makes one silly lie then suddenly B has some ammunition.

In this way, truthful complainants need to understand that the jury are not morally ‘judging’ A’s behaviour:- they are simply judging A’s credibility. The vast majority of jurors determining the right verdict will not be ignorant or chauvinistic (and even if they are, they will probably pretend not to be when surrounded by 11 more sensible colleagues). Jurors will generally be able to judge the difference between A flirting a little, and A consenting to sex. They will understand the difference between A fancying B a little, and A deciding to have sex with him within two hours of meeting. They will not allow B to ‘get away’ with rape simply because A accepts that she wanted to go back to his flat, or that she kissed him in the taxi home.

But a huge problem arises if A tells lies by playing down any of these facts. Such ‘socially acceptable’ lies are music to the defence lawyers’ ears because they can be rebutted with other evidence, and then used to chip away at A’s credibility.

Many who decry the low rate of rape convictions fear that ‘the system’ is judgmental about female victims and insensitive to their rights. Superficially, the recent statistics tend to support this. But on the other hand, maybe the ‘system’ is just decent people on all sides working hard to run a fair process? Perhaps the great irony is that, precisely because of this fear of being ‘judged’, genuine victims are being less than candid from the very start. Defence lawyers then do their job: they expose the lies and blow them up into the life raft known as ‘doubt’.

Click here to see how Brett Wilson LLP's specialist defence lawyers can assist you if you are being investigated or prosecuted for a sex offence.