There is a scandal about rape in Britain - but it's not the one you keep hearing about

In a rational world, this would be a national scandal says Joan Smith
In a rational world, this would be a national scandal says Joan Smith

More than half a million women are raped or suffer a serious sexual assault each year. So are 138,000 men.

If you’re surprised by those figures – they come from the Government’s own crime survey for England and Wales, by the way – it’s because they don’t fit a narrative in which ‘real’ rape is rare and innocent men live in terror of being wrongly accused.  

That’s the impression you’ll get from the headlines on just about any day when rape is in the news. The latest batch, following an evidence session in front of MPs yesterday, make the eye-catching claim that ‘hundreds of innocent people’ could be in prison for rape and other serious offences because of a failure to disclose crucial evidence. This is based on the revelation that 47 serious sex assault cases have been dropped following a review of disclosure procedures ordered in January.

Hold the front page! If those 47 cases could have ended in wrongful convictions, how many innocent men might already be languishing in jail, serving time for offences they didn’t commit? Defence lawyers seized on the figure, claiming there has been a greater focus on believing complainants than obtaining justice.

Cue hollow laughter from anyone involved in the uphill process of trying to get justice for rape victims.

First, let’s inject a dose of reality into the figure that’s led to all this speculation. The review examined 3,637 cases and identified disclosure issues in 47 – or to put it another way, 1.3 per cent. The Metropolitan Police routinely conducts its own reviews of rape cases, and a senior detective I spoke to yesterday was sure that all 47 would have been discontinued anyway under normal procedures.

That’s a very different picture from the impression you might get from the news reports - but it’s the norm for anything to do with rape.

What about those half million women, and almost 140,000 men, who are raped or sexually assaulted each year? Where is the justice for them? The answer lies in another statistic, which certainly doesn’t support the lurid notion that hundreds of men up and down the country are being pursued for rapes they didn’t commit.

In 2016/17, there were just 5,190 convictions for rape in England and Wales – and that was a record year. Add in the 13,490 convictions for other sexual offences and it’s still under 19,000 in total, meaning that fewer than three per cent of rapes and assaults each year end up in convictions.

In a rational world, that would be a national scandal.

The truth is that we live in a country where the vast majority of sexual predators get away with their crimes. Always have done and always will - as long as the public’s sympathy is so heavily on the side of defendants.

No one wants innocent men to end up in prison, and the police have rightly apologised to defendants in a handful of recent cases which collapsed following late disclosure of evidence.

But the disclosure problem, which has received so much publicity in recent months, is another example of a story that isn’t what it seems. Strict new interpretations of the rules, prompted by a review published last summer, mean that rape complainants now face a total loss of privacy.

Senior officers have told me they are ‘utterly furious’ about having to demand all this material from victims when there is no equivalent on defendants

They have to hand over mobile phones, tablets and work computers containing a mass of personal information – emails, text messages, photographs. Delated material, such as texts exchanged between friends after a drunken night out, will be retrieved and examined.

Nothing is off limits, not even intimate photographs that the complainant may have been coerced into posing for by an abusive partner. Victims also have to grant access to school and medical records, which might include information about abortions, sexually transmitted diseases or depression. Women are already deciding not to go ahead because they are afraid of bruising cross-examination about personal matters that have nothing to do with an alleged rape.

Senior officers have told me they are ‘utterly furious’ about having to demand all this material from victims when there is no equivalent obligation on defendants. Detectives have to obtain consent from a superintendent to access even minimal electronic information about a suspect, such as the phone numbers he called just before and after an alleged attack.

The imbalance is so stark that some lawyers believe that the current disclosure regime may amount to a breach of the victim’s right to a private life, enshrined in article 8 of the European convention on human rights.

There is a scandal about rape in this country, but it isn’t the one you keep reading about. Rape myths have always got in the way of successful prosecutions. The harsh truth is that very few rapists end up in court and that situation is going to get worse, unless something is done urgently to protect complainants.