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Rape and other sexual allegations: The law explained

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Big stories in the news recently: Savile, Hall, Le Vell, Harris all give rise to questions about the law in relation to rape and other sexual allegations. The Sexual Offences Handbook contains all the law, practice and procedure from 1957 in relation to alleged sexual offending by and against men, women and children. You can buy the book here. Now read the blog:

Rape

According to one police officer, in one force area in the UK there are roughly 19 rape complaints a week. It is often said that only 6% of reported rapes result in conviction although CPS figures are that about 60% of rape trials are successful prosecutions, see here . What do these figures mean? Obviously there can’t be that many false complaints. Equally, there can’t be that many incorrect decisions not to charge a suspect. Victims feel violated whatever the law. It is important that they complain so that an investigation can be launched. It is just as important that the investigation is conducted properly and fairly looking at the evidence from both sides. A person complaining of rape should be taken seriously but so should someone who denies they are a rapist. In any subsequent trial the stakes are high on both sides. In the end, it all depends on the evidence. Some cases will turn on the accuracy of the main witness. In others there will be evidence to support or undermine the complaint. Some suspects have a case to answer. Some do not. Some cases are emotional, some are horrific, some are hopeless and some are lies. It follows that not all accusations of rape will be prosecuted and, of those that are, not all will result in a conviction.

Generally sex takes place between 2 people. Rape trials involve an analysis of a private sexual event. Many victims believe they have been raped when they did not consent. Many suspects say they believed the victim was consenting. The current law on rape is that it is only rape if there was penetration of the mouth, vagina or anus, when the victim was not consenting AND the perpetrator did not reasonably believe there was consent. No one should be labeled a rapist if they genuinely believed this was a mutually consensual experience. The consequence is that even where a victim does not consent, a perpetrator may not be guilty of rape because of what was going on in his head at the time. We use “his” to make the sentence easier but, as you will see from this blog, a rape victim can be of any age, male or female. Cases range from violent penetration of a disabled child to a momentary encounter between adults in a dark alley outside a nightclub. Real lives are never more exposed that when examining sexual matters in a criminal court……blogs on consent and other topical issues online soon.  You can sign up to receive notifications of this blog on the right.

Historic rape of a female child

Sexual offending is not new. Numerous cases of historic sexual offending have been uncovered across the world and statistics on child abuse are appalling. Commonly perpetrators are found in positions of trust or authority – parents, priests, teachers etc. In the past it seems that there was little effort to investigate such matters properly, children were disbelieved and the law required more than just a complaint (known as corroboration) so cases were not pursued. In England and Wales, the requirement for corroboration was abolished in England and Wales in respect of children in 1988 and in all cases in 1994. The issue is currently being hotly debated in Scotland. Nowadays, people feel much more able to complain and allegations of historic abuse are coming regularly before the courts in the UK, although some countries time bar prosecutions. Anyone who is the victim of past abuse can still go to the police. This may not lead to a successful prosecution but, without a complaint, there is nothing to investigate.

What is the law?

Take an adult woman who complains of rape when she was a child 30 years ago. The law in relation to sexual offences changed on the 1st of May 2004. Before that date, the Sexual Offences Act 1956 applies. Back then it was rape to penetrate the vagina of a child who was too young to consent (usually taken as about the age of 10). The maximum sentence on conviction would be life imprisonment. If the offending continued, consensual sexual intercourse with a child under 13 carried a maximum of 5 years but any allegation by a girl over 13, could only be prosecuted if the complaint was made within 12 months (sections 6 and 37 SOA 1956) . So, the law remains that sexual intercourse with a child can be prosecuted as rape but the later consensual sex cannot as it is too long ago. Recent cases have tried to distinguish between consent and corruption (which is not a free choice) but such legal distinctions are hard to describe by an adult thinking back decades. Grooming often results in consent. Other sexual touching could be charged as an indecent assault which, before the 16th of September 1985 only carried a maximum of a 2 year sentence for offences against girls although it has always been 10 years if the victim was a boy. Already you can see that any prosecution will be limited.

What is the evidence?

The evidence of any criminal offence comes from witnesses. In a sex crime trial, that witness is the alleged victim, known as the complainant. Criminal prosecutions can only succeed if a jury is sure that an accused person is guilty. That is the legal test. Can a jury be sure that the complainant is telling the truth?

Even after the passage of time, there is some evidence the police can collect

  • She can give her police statement on video. This can be played to a jury but she will need to be available for cross examination if the allegation is denied. This can be in court, with or without a screen, or by TV link
  • She will need to give reliable evidence. This does not mean she has to remember every date and time, that would be impossible. However, significant events can trigger a memory, so questioning should elicit the best of her recollection of what went on and when.  Consideration should be given to the fact that traumatic memories are laid down differently to non-traumatic ones.  For example, the order of events may be jumbled, the complainant may remember a smell very clearly but not the décor in the room. Sometimes, the passage of time itself makes the evidence unreliable.
  • That she delayed complaining is not, of itself, a problem as a jury will be directed that experience shows people commonly delay complaining due to a number of reasons. It is only when there is some suggestion of collusion or unreliability or motive to fabricate that the delay can become significant. For more information about the judiciary and judicial directions, click here 
  • If she has told other people over the years, such statements can be admissible. Is what she said properly noted down? Does it look inconsistent? If it is inconsistent, is that a result of trauma or who she was speaking to, or because she is incorrect?
  • Can the police locate the suspect? How old is he? Is he still alive? Is he fit to be tried?
  • Has he done something similar to someone else? Evidence of a propensity to commit rape is admissible in a criminal trial in certain circumstances. Often victims think they are the only one but it turns out that the suspect has criminal convictions for sexual offences and/ or an investigation uncovers other victims.
  • Are school and medical records still available? This might help with dates for particular events so, for example, if she missed a school trip to go on a secret holiday with the defendant, is the date of that trip known?
  • Can it be shown when she had sex education? Is that a good date to take for when she started consenting?
  • Also, in the records is there past misbehavior at school so bad that it would be possible to suggest she would be an unreliable witness? Does that mean that she is unreliable now? Is the bad behaviour in fact attributable to the abuse and corroborative of it? Much depends on the contents of the records. She will also need to know that, if her confidential records are relevant to any case, the suspect would be allowed access to them in preparing his defence.

In historic cases, some evidence is always lost by the delay in complaining

  • There is no medical evidence as it is a long time ago and she has probably had sex with others since.
  • Witnesses and records may be lost to the point that it becomes impossible for there to be a fair trial. This will only become apparent once an investigation is launched.
  • Her own memories might be vague. This is quite common in historic cases as victims spend so long trying to block out the thoughts. In England and Wales there is no requirement that her evidence is corroborated. She may be the only witness. Many witnesses are utterly compelling and cases are proved on the evidence of one witness. However, the passage of time and her own understandable conduct over the years may mean a jury can’t be sure.

What should she do?

She should tell the police. To take this formal step demonstrates to others that she is serious. An informal complaint to family members is quite often met with disbelief in historic cases. Victims get on with their lives and where abuse has not been mentioned ordinary people find it hard to accept especially where the victim has a big personality (often a feature of someone trying to hide a brutal history).

It is certainly worth an investigation. What if he has gone on to commit a similar offence against another girl in a new family? What if she finds out that, at the time, he was convicted of a sexual offence? What if he admits the current allegation and pleads guilty? If he is living with children, social services will be notified about the complaint. Her complaint could protect others even if her own matters cannot be brought to court. For the complainant, it may enable her to deal with what has happened to her and put it behind her.

Will he be prosecuted?

It is only once the evidence has been collected that it can be decided whether to prosecute the suspect or not. A lawyer will make a decision on whether to charge the suspect with an offence, based on all the available evidence. Guidance on charging is here . She is entitled to a proper explanation if a decision is taken not to take her complaint to trial. Sometimes victims are keen to give evidence. Sometimes they are pleased not to go to court but grateful to have been taken seriously. If a complainant is very unhappy with a Crown Prosecution Service decision not to prosecute, there is now a right to seek a review of that decision. For more details about the CPS in the UK click here.

After so much time, such cases are difficult but not impossible to prosecute. It all depends on who or what is available to give evidence and what the suspect says about the allegation. A child rapist, even when the offences were committed 30 years ago, would go to prison for years. If convicted, perhaps these would be his final years. He would also be on the sex offenders’ register, his contact with children would be restricted by licence conditions, people living near him could apply to find out about his offending. The court also has the power to impose conditions by way of  a Sexual Offences Prevention Order if necessary to protect the public.

How does he defend himself?

Most complaints of rape are met with a denial by the suspect. Whatever incentives are created to make offenders plead guilty, where the allegation is rape most accused people plead not guilty thus effectively requiring the prosecution to prove the allegation, some they do and some they don’t.

Imagine an elderly man of good character where the complaint comes out of the blue. The stress will make him feel ill. His work and family life will suffer. There will be local gossip and media attention and there is always the potential for hysteria on social networking sites. He has no control over whether he will be charged or not. That will be decided by a lawyer.

As a man with no criminal history, the jury will hear evidence of his good character and be directed that this makes it less likely that he would commit a sexual offence and more likely that he would tell the truth although there is a first time for everything.

Many historic cases are never charged as there is just not enough available evidence. If he has criminal convictions, these may be relevant. Many people keep their history secret. There is often nothing to alert others as past offences were not subject to notification on the sex offenders register. An investigation sometimes leads to other people complaining.

Assuming he has no criminal convictions, he can call witnesses as to his good character; his honesty and his conduct towards children generally. He may have examples of the bad character or dishonesty of the complainant, whether this is admissible in court would depend on what she has said and done. There are significant restrictions on what she can be asked.

If he is convicted he will go to prison for years and, with health difficulties may die in prison. He would also be on the sex offenders’ register. Sentencing guidelines are set out here.  If you would like to have a go at being a judge and deciding a sentence click here.

If acquitted, he has to try and rebuild his life. He will consider moving away from the area to avoid the gossip. In every case, he will need specialist help from a lawyer. He may need to pay for this depending on his means . If he is acquitted he might not get all of his money back and he will struggle to restore his reputation. These issues are commonly discussed when debating anonymity for sex crime suspects.

These cases are never easy. The law is complex and the evidence varies. To understand sex crime trials better, read The Sexual Offences Handbook and follow this blog by subscribing in the box on the right.

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