Fiona Raitt: If trials are theatre, rape cases must not become tragedies
However, the overall attrition rate is extremely high. We need to understand the many reasons why less than 10 per cent of reported cases are prosecuted. Getting sufficient evidence to prosecute is particularly difficult in rape cases, but are we sure we are investigating and gathering the best evidence available right from the point of reporting?
Police have made huge improvements to the way they respond to rape victims but, as the Met's review of the John Worboys case spectacularly illustrates, sceptical attitudes towards those who report rape, and the negligent approach to the capture and preservation of evidence, are endemic in some forces.
A joint inquiry by HM Inspectorate of Constabulary and the Crown Prosecution Service in England made important findings: first, the scale of false allegations is overestimated; second, subjective judgments are still being made about victim credibility; third, inaccurate decisions to "no crime" remain unacceptably high. But, perhaps most significantly, inaccurate " no criming" results in loss of intelligence about offenders.
Intelligence relating to the manner in which some rapists systematically select and assault victims, being careful to leave no evidence that suggests lack of consent, could play a far greater role in the investigation of rape.
Rapes, especially where alcohol and drugs are involved, are often carried out in a distinctive pattern. Police units involved in the Worboys case had access to sophisticated databases that could have identified him much earlier. Police disbelief of the women reporting rape and a failure to collect, preserve, or pursue evidence rendered that useless. Intelligence should be routinely gathered, stored and accessed, when rape is reported, to establish any possibility of spotting patterns of similar behaviour that might allow "cold" reports to corroborate fresh ones.
Effective prosecutions depend upon effective investigations. Those who report rape fare much better if supported in a manner which is respectful of a victim's rights. In several US states and much of Canada, where victims are prepared for the stress of a rape trial, considerable impact has been made on reducing attrition rates and improving conviction rates. Prosecutors have found providing rape complainers with details of what to expect at various stages of a prosecution, including the rationale behind many intimate questions that women find so distressing and humiliating, increases their confidence as witnesses – and makes it less likely they will seek to withdraw support for a prosecution.
It may seem obvious that a woman who is supported, consulted and informed would be better equipped to withstand cross-examination and other debilitating processes. However, these North American practices have not yet been introduced in this country, due to a concern that these forms of witness "familiarisation" go too far.
It is often said criminal trials are theatre. Rape trials represent the very worst form of theatre. It may be hard for some people to appreciate the terror brought about by even the prospect of facing one's attacker in court, let alone having to recount the assault itself in excruciating detail. There is really no justification for not doing all in our power to counter these legitimate fears that do so much damage to a witness's confidence.
Fiona Raitt is a professor in the School of Law, University of Dundee