Felix | Even alleged rapists must be treated justly

The new year has been dominated by the subject of rape. Along with child abuse, rape attracts the fiercest of debates and soul searching. In most other crimes, including the most serious of murder, there is an acceptance of the fact that the accuser and the accused do not present a foregone conclusion that should result in one verdict. There are outcries at acquittals in other crimes, but no other seems to attract the fierce scrutiny that ?rape does.

For some, it would seem, every allegation is a true allegation. It is a crime on its own. In the papers recently there have been statistics reporting the very low conviction rate for rape, based on complaints. In fact the conviction rate for rape when measured against charges brought to trial is no better or worse than many other criminal charges.

Cab rank

Then in India there is such an outcry and anger at the alleged gang rapists and murderers that only one lawyer appears to be prepared to defend two of the suspects. It is considered acceptable and professional for the local criminal lawyers to refuse en masse to represent any of the accused. We should pause for a moment and be grateful for the cab rank rule here which means such a situation cannot arise. There is no justice without justice being seen to be done; the horrific crime in India is not made better by lawyers refusing to act. The victim will not have received justice if that justice is rough, poor and nothing but justice in name.

Why do sections of our society seem to become so upset that not every reported rape results in a conviction? It is a sad fact that there are false complaints of rape. Some defendants have been acquitted not just because the jury could not be sure that they were guilty, but because they were sure the defendant was innocent. There are convictions for attempting to pervert the course of justice by making false allegations of rape. If we were somehow to deny the right to a fair trial in rape allegations by assuming every complaint is a true complaint and every arrested man is a guilty man '“ as is effectively what has ?been going on in India '“ then those people who were the victims in the perverting ?trials would all be doing minimum ?five-year terms.

And there are people who withdraw allegations. Perhaps they have had second thoughts on exactly what went on; perhaps they were pressurised to complain, or felt they had to through shame or embarrassment.

The balance has shifted more away from the defendant, banishing the bad old days when the defence could humiliate the complainant by prurient questioning; that now needs judicial leave to be allowed to ask specific, relevant questions about a complainant's sexual history. There are statutory presumptions against consent based on incapacitation through alcohol, sleep, violence and so on. There is no need for corroboration. Recent complaint evidence and evidence of distress are admissible as of right. Many of the obstacles to conviction have gone; the scales have shifted '“ fairly '“ against the defendant.

Not the same thing

The real problem may lie in the nature of rape in the criminal law. Unlike violence, or homicide, it allows for no shades of seriousness. I am not saying that there are rapes that are not serious; it is a unique crime of violation and violence in itself. But for juries confronted with a rape trial in the sense of a stranger attacking a woman walking home late at night, compared with two young people who have been drinking or are otherwise intoxicated, start something consensually which goes too far in the heat of the moment '“ delivering the same verdict for the same crime for not the same thing may be a problem. If there were statutory degrees of rape there may be more convictions. Juries may be reluctant to convict (and so be sure of guilt) about a matter where everyone was drunk and things go wrong at the last. If ?that crime was charged as a less serious category of crime compared to the stranger rape, they may be less reluctant to rely on the evidence of the complainant when everyone was drunk.

The most sensible thing I have heard recently about the whole vexed question of sexual abuse and sexual crimes, was in the context of children and allegations of abuse. Dame Helena Kennedy QC spoke on the radio about the reporting and investigation of child abuse. Her point was that we should begin with every child being believable '“ as opposed to either not being taken seriously or being assumed to be wholly truthful ?and accurate from the outset. Some children do fabricate, or embellish, or recount confused events that may not have been as they have become to be seen; most no doubt are truthful.

We should start off with every complainant as believable, but based within a system that acknowledges openly and proudly that it is better that nine guilty go free than that one innocent person is convicted. We do pay a price for that, but it is a price worth paying. It may be less steep if we were more imaginative about how we prosecute such a difficult crime as rape.