Trigger warning: this article discusses rape and sexual assault which some readers may find distressing.
Some argue that rape has virtually been decriminalised as the chance of conviction is frighteningly low. Some 69,184 rapes were reported in the UK in 2024, yet the number charged was just 2,572 and those actually prosecuted a meagre 2,283 – leaving over 66,000 that were dropped at some stage.
The figures for other countries are similar. The trends in countries that report statistics have common themes: that the number of offences is rising; that the reporting level is low; and that conviction rates are low and often falling. And the delays can be exacerbated because alleged rapists are often bailed and the system prioritises prosecuting those remanded in custody.
Why do women not report rape?
The most obvious reason is the shame society has created around being raped. It is not so long since judges commented on the appearance and alcohol intake of victims. Juries may adhere to rape myths, such as that ‘rape will usually cause physical injury and is almost never committed by someone known to the victim’.
Many women fail to report rape because of fear – fear of not being believed, of how the police will respond and of being judged. One of the major complaints is that the prosecution and court process is re-traumatising for victims. Those who do get to court often report that as victims they feel on trial.
This can start with the police demanding access to mobile phones and other information. The law has recently been amended to ensure this is only when the police consider it relevant but it can still feel intrusive and an additional violation. The trial itself often revolves around the victim, their actions and motives, while the defendant, as is their right, remains silent, offering no evidence other than their not guilty plea.
Are we surprised victims are reluctant to undertake this journey?
And what happens when rapes are reported?
Not all rapes are reported at all. The most famous in France, where I live, is the recently concluded trial of Dominique Pelicot, convicted with 50 other men of raping his comatose wife over more than nine years.
His wife, Gisèle Pelicot, never reported the crimes because she was drugged and unaware of them. The crimes were only discovered because the offender was caught taking upskirt photographs in a supermarket and the subsequent search of phone and computer revealed the videos of what had happened.
Mohammed Al Fayed was reported to the police numerous times by women he had allegedly sexually assaulted, but no trial emerged. And we will probably never know whether his power and influence helped that suppression. That is not simply to condemn the police. Their remit is within our judicial system which constantly asks – is there a crime and can it be successfully prosecuted? Too often the answer to that is not a simple yes or no, and without repeated answers of yes the case will fail somewhere along the line.
So where do we go from here?
Suggestions have included scrapping juries altogether and, conversely, getting more cases in front of juries, as I have suggested elsewhere. Changes such as scrapping the three-year limit on victims bringing civil claims of rape as children are welcome but insufficient.
The principle of ‘guilty’ meaning guilty ‘beyond a reasonable doubt’, the 99% test, stands well for most offences. It does mean having to explain to many that ‘not guilty’ does not mean innocent. Changing this to the civil standard of ‘on the balance of probabilities’, the 51% test, feels dangerous given that rape can carry a sentence of life imprisonment.
What alternative procedures might be used?
There are a number of options currently used for civil and commercial disputes, that may or may not be appropriate in cases of rape and sexual assault.
Negotiation, where the parties attempt to find mutual agreement, usually with the assistance of solicitors, is commonly used for commercial disputes (possibly over the terms of a contract) and civil matters such as neighbourly disputes over boundaries. The substance of the negotiations is usually without prejudice so cannot be used in any subsequent court case, and is only binding if an agreement is reached.
Mediation is similar to negotiation but uses the services of an independent and impartial facilitator, who must be agreed by both parties. The mediator will attempt to help the parties understand the positions of each other which is especially difficult when emotions run strong and evidence is of “she said, he said” intensity. The aim is to work to an agreed and non-binding solution.
Neutral evaluation allows an agreed evaluator to assess the available information for strengths and weaknesses and identify the likely outcome and any possible route to resolution.
Expert determination uses the services of an agreed expert in the area, usually commercial, to reach a binding conclusion.
Arbitration is the closest to a court case. Each arbitration or arbitration tribunal is usually limited to specific areas, as in an employment tribunal or a commercial dispute. The results may be confidential but are usually binding.
Could any of these be helpful?
As they stand, each of these has a purpose that does not quite fit the circumstances of a sexual assault or rape. Restorative justice also fails to fit, as it normally follows a conviction and is more about getting a perpetrator to understand the impact they have had on others and repair some of the harm.
And yet is there something in amongst these options that might bring an acceptable level of justice to some of the victims? Do all victims want to see a conviction and ideally a custodial sentence? Or are there some offences, which currently are highly unlikely to be prosecuted, where there might be an alternative? This might be akin to restorative justice provided the accused accepts what they have done wrong, is genuinely remorseful and the victim is content that this, possibly with some agreed penalty, is sufficient.
This might be better than a case languishing and dying in the current system. But my first doubt is whether a victim would accept this. My own experience of an assault, not sexual so not in the same league of invasiveness, prompted a desire for prosecution and conviction. But some level of acknowledgement by the perpetrators would have been better than the nothing that actually happened.
My second doubt is whether this would be seen by an alleged assailant as an easy way out. And thirdly, would the system push victims this way to avoid the complications and costs of courts and prisons?
In conclusion
Changing the trial process is fraught with issues. You could change the burden of proof or require the defendant to face questioning, but they could still remain silent. And if you create a change for charges of rape and serious sexual assault, where do you draw the line?
I think the trial must stay unchanged. There may be some middle ground where a form of restorative justice can address some cases, but this needs to be constructed with enormous care. Both the victim and the accused will still need the right to refuse anything but a trial.
In 2010 there were fewer than 16,000 rapes reported, of which 3,819 were prosecuted. The director of public prosecutions wrote at the time “Those who are raped must be confident that their case will be thoroughly investigated and properly prosecuted”. The man who wrote that in 2010 is now prime minister and the number of prosecutions in England and Wales has collapsed from nearly 25% to less than 3.5%.
This rise in reported rapes suggests that the police and other services are doing a better job supporting victims in coming forward. But the four-fold increase in reported rapes has not seen a commensurate increase in prosecutions. Instead, it has seen a reduction. Trials need to happen more quickly; victims support needs to be improved through that part of the process, and more cases need to go to trial.
The blame for fewer prosecutions lies not with Keir Starmer but with 14 years of Tory cuts. Funding was taken away from the courts, the NHS and many public services. Restoring it should be a priority. And supporting one activity – such as military action in Ukraine – does not require removing funding from elsewhere – such as overseas aid.
Restoring the taxation system to where it was in 2010 will only hurt the richest who have profited from tax cuts as would taxing capital gains at the same level as income and a reasonable wealth tax. The people of the UK, including the victims of rape and sexual assault, are entitled to the public services they reasonably demand.
If you would like to talk to someone about rape or sexual assault, there are support services available. Locally, support is provided via the East Kent Rape Crisis Centre.
