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Even a video of a woman being raped isn't 'enough' to get a prosecution now

Official figures show that the vast majority of rapists get away with their crimes despite the evidence against them, writes Joan Smith

Why do so few rape cases get to court? The scandal of collapsing prosecution and conviction rates is well known, but extraordinary new evidence has exposed the barriers victims come up against in their quest for justice. It includes eye-opening case studies compiled by lawyers for women’s organisations seeking a judicial review of decision-making by the Crown Prosecution Service (CPS).

The organisations, which include the End Violence Against Women Coalition, are appealing against a decision earlier this year to refuse a judicial review. They’ve now sent the evidence collected for the case to the Justice Secretary, Robert Buckland. He is currently overseeing an ‘end to end’ review – yes, another one – of how rape cases are handled in the criminal justice system.

The dire state of affairs is confirmed by official figures, which show that the vast majority of rapists get away with their crimes. Last year almost 60,000 rapes were reported to the police in England and Wales but fewer than 1,800 resulted in charges – and only 833 defendants were convicted.

Earlier this month, the Information Commissioner’s Office published a report highly critical of the way police and the CPS use data from victims’ phones. The case studies compiled for the judicial review confirm complainants’ anxieties, suggesting that medical evidence and witness statements are given less weight than prosecutors’ negative interpretations of WhatsApp messages.

One woman told the police she had been raped three times over the course of four days in 2017 by a man she’d had a short relationship with. One of the rapes took place at knifepoint and her alleged attacker subsequently sent her WhatsApp messages apologising for "what he had done". She was able to provide other evidence, including slashed clothes, photographs of bruising to her thighs, and a witness statement from a friend who said she’d been told about the second and third attacks on the day they happened.

Her alleged attacker was charged with three counts of rape, assault by beating, false imprisonment and criminal damage – but she was later told by the CPS that the prosecution had been dropped because there wasn’t a "realistic prospect of conviction". A senior prosecutor said the credibility of her account had been undermined by, among other things, WhatsApp messages that might be interpreted as "encouraging sex".  

Another woman's case was discontinued by the CPS in 2017 for similar reasons. She told the police she had been forced to have oral and vaginal sex without a condom by a man she met via a dating app. A medical examination on the day of the alleged attacks revealed injuries to her mouth consistent with oral rape, but the CPS said WhatsApp messages between the woman and the perpetrator mentioned "role play", and suggested she "would be a willing participant in this scenario".

You might think that actual video footage of the rape of an intoxicated woman would be powerful evidence in the victim’s favour, but even that doesn’t seem to be the case.

Take the woman who went to the police in April 2017, reporting a rape that she said had taken place while she was drunk. She was told that the CPS had decided there was insufficient evidence to bring charges, even though police made the devastating disclosure that videos of the alleged attack had been found on phones belonging to the suspect, who had initially lied about having sex with her, and one of his friends. The CPS claimed the case had been undermined by the fact that the woman was drunk and had an imperfect recollection of events, despite the fact that it had been filmed.

These rare insights into the way the charging process appears to work against complainants are not the only evidence that’s been sent to the Justice Secretary. A CPS whistle-blower’s statement seems to back up claims that prosecutors have been encouraged to meet conviction targets by taking hundreds of "weak" cases out of the system, adopting what is described as a "bookmaker’s approach" to charging. This explosive allegation has repeatedly been denied by the CPS, but the whistle-blower claims to have witnessed a new "risk-averse" attitude among prosecutors.

Harriet Wistrich, Director of the Centre for Women’s Justice, insists that the evidence assembled for the judicial review shows that the CPS has changed its approach. "We continue to be inundated with inquiries from rape victims who have been told that their cases will not be prosecuted, despite compelling evidence that dangerous men will feel free to offend again", she says.

No one, not even Government ministers, would deny that women are not getting justice. The usual response is to order yet another review, with no appreciable effect on the criminal justice system. This will continue until the experts acknowledge the central problem, which is a corrosive suspicion of what women say about rape.

If bruises, videos and admissions from the perpetrator aren’t enough to bring charges, what does a determined rapist have to fear?