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Does rape demand special treatment in the eyes of the law?

Professor Helen Reece| is Reader of Law at LSE. Her main teaching responsibilities and research interests focus on family law.

Is rape different? It’s good to see this question explicitly posed - the answer ‘yes’ is generally assumed.

A stark example is Julie Bindel writing in the Guardian| a few years ago. ‘Why is rape so easy to get away with?’ the headline asked. She surmised that a rapist has a less than 1 per cent chance of being convicted, drawing the conclusion: ‘Today, rape might as well be legal’.

The unstated premise is that there is a particularly glaring justice gap in relation to rape. But the facts and figures don’t bear this out. 

It’s now well accepted that the rape conviction rate – the proportion of rape trials that end in a conviction – has reached an all-time high of 63 per cent, which compares well with conviction rates for other serious crimes.

The rape attrition rate – the proportion of recorded rape complaints that result in a conviction – is infamously low at 7 per cent. But it’s less well known that this is also in line with the attrition rates for some other serious crimes, such as burglary. We may be reaching a tipping point with rape though. 

It was reported recently| that the number of recorded rape complaints increased to just over 17,000 in 2012-13, up from 14,767 the previous year, while the number the police sent to the Crown Prosecution Service slumped to 5404. These latest statistics may further depress the rape attrition rate, depending on how many CPS referrals result in rape convictions this year.

Sexual offences taken as a whole currently have an attrition rate of 36 per cent, slightly higher than the attrition rate for violent offences of 31 per cent.  As you would expect, when rape is considered in isolation, the attrition rate is much lower, because the requirements necessary to prove rape are particularly stringent and because rape defendants are often convicted of lesser sexual offences, just like other defendants. We can point out violent crimes - such as attempted murder – that likewise have a particularly low attrition rate.

Nor has it been shown that rape is particularly unlikely to be acknowledged or reported. The Stern review| found rape reporting rates to be in line with other crimes. And the idea that rapes are less likely to be acknowledged than other crimes is invariably assumed, never evidenced.

Like it or not, across the whole range of criminal offences the proportion of offenders who end up convicted is small. 

Nevertheless, despite the evidence, the idea that rape fares particularly badly is the usual starting point for discussion.  From this false beginning, the next step is to suggest that the reason rape fares badly is that people believe rape myths. According to Jennifer Temkin, rape myths are ‘holding back advances’.

The power that rape myths exert is something that ‘everybody knows’ – it has become ‘common sense’. But if there’s one thing I have learnt in my adult life, it is to be wary of ‘what everybody knows’ - this leads us to suspend our critical faculties. When I started to investigate rape myths, the evidence for them melted away.

Let’s take the supposed prevalence of the victim-blaming rape myth. A Guardian headline| proclaimed a few years ago: ‘One in Three Blames Women for Being Raped’. But the evidence for this was an Amnesty survey| in which the word ‘blame’ was never used. Instead, participants were given a range of scenarios and asked repeatedly whether the woman was ‘responsible’. ‘Responsible’ has a number of meanings, including ‘blameworthy’ but also including ‘causally implicated’. Faced with the options of yes/no/partly, many participants were likely to have been saying no more than that a woman’s behaviour could increase the risk of rape – an obvious truth in respect of any crime.

A small minority does blame rape victims. Once again, there is no evidence that rape is different here. The evidence suggests that some people tend to scrutinise and castigate other crime victims just as much if not more. Witness the vitriol heaped on the McCanns.

Does any of this matter? I think it does. First of all, the supposedly special nature of rape has been used to justify a range of modifications to the criminal justice process that impede the defendant’s right to a fair trial. Secondly, belief in the prevalence of rape myths leads us to lose faith and trust in our friends and neighbours, and sometimes even in ourselves. Thirdly, stigmatising some people’s views as rape myths has made it harder to debate these difficult issues frankly and freely. 

Read the full article: http://ojls.oxfordjournals.org/content/33/3/445.full.pdf+html| which includes all the source material for this comment piece.

Professor Helen Reece is part of a panel debating the topic ‘Is Rape Different? at LSE on Wednesday 30 October 2013. Full details here|