5 December 2011

A 62% rape conviction rate, but why?

The detail available is scanty, but last week, the Lord Advocate announced that Scotland's rape conviction rate appears to have rocketed under the new Sexual Offences (Scotland) Act 2009. The headline figures are stark. Since the 2009 Act came into force in December last, 62% of rape cases reaching court have seen the accused convicted, as compared to the annual rates of 44.5% in 2009-10 and 30.6% in 2008-09.  Encouraging surface signs, but is it convincing to claim, as the SNP press release has it, that the "new rape laws increase conviction rates" and are "twice as effective at securing a conviction than older laws"? I think not. And here's why. 

Delve into the detail a little more, such as it is available. The headline figure suggests an increase in the conviction rate of 17.5% in those cases that come to court. If you ditch the percentages, and look at the actual numbers of cases involved, your enthusiasm for the proposition that the new laws have clearly done the trick might justifiable wane.  As the Lord Advocate makes clear, that 62% refers to achieving convictions in just eight of thirteen cases prosecuted in total under the new laws.  Comparable to the past? Not really. If you look at the figures for 2009-10 and 2008-9, the total figures were as follows...

Rapes recorded by the police
Number of rapes prosecuted
Number of convictions

As you'll see, the overall conviction rates given for the past two years are based on a much, much larger pool of prosecutions. So why the difference? It's very likely a matter of Law's Delays.  While the newly defined offence of rape came into force in December 2010, those committing such acts before that time would have to be prosecuted under the old common laws, and such cases will have taken some time to filter through the system. At present, we've only got a tiny clutch of prosecuted cases in hand compared to the past - less than 15% of rape prosecutions undertaken in 2009-10 - and it seems decidedly unwise to take such a wee slice of that total, and credit the new laws with increasing conviction rates.

After all, there are plenty of other perfectly plausible reasons, apart from the new law's novel virtues, to explain why eight of thirteen cases under the new legislation resulted in convictions. Perhaps the cases selected for prosecution happened to be particularly strong, the circumstantial evidence compelling, the complainers credible and reliable, and the accused persons particularly implausible. Given the tiny body of data, achieving convictions in eight out of thirteen cases could be equally compatible with the overall thesis that these new laws will actually decrease annual conviction rates, or change little the conviction rates seen under the unreformed common law definitions, a blip. On such a scanty body of data, to start talking-up the efficacy of the new legal regime seems unwise, harum-scarum.

Inflated claims based on the limited data begins to look even more problematic when you remember that rape, as defined in the new laws, is a much more encompassing offence than that which I've given the data for in 2008-10. Commenting, SNP MSP Christina McKelvie connects the idea of the apparently increased rate of conviction, seeming to credit the law's new breadth...

“These first statistics are extremely encouraging and show Scotland is moving in the right direction. The new laws broadened the definitions of rape as previously Scotland had one of the narrowest terms in the world.”

The law's being broader is responsible for an increased rate of conviction. Respectfully, surely this is precisely the wrong conclusion to draw.  For delicacy sake, I won't go into too much detail at this hour of the morning, but sufficeth to say that the new legislation shifts crimes previously categorised as sexual assaults into the domain of rape. One of the significant additions to this data are men. All of the 2008-10 data I've quoted concerned only female complainers. Under the new Act, men too can be the victims of "rape" in Scots law. That is not to say that analogous sexual violence against men wasn't prosecuted or prosecutable in the past. It was, however, such incidents disappeared into the general statistics on sexual assaults.  The crucial point is this. We would strongly expect to find an increase in the number of rape prosecutions under the 2009 Act, with conduct previously criminalised as sexual assaults shifting columns and being recorded as rapes.  The laws having been broadened substantially, the very, very limited number of cases which generate the 62% conviction rate claims and associated excitement becomes even more problematic.

For the sake of argument, bracket all of that skepticism. Say this 62% is suggestive of a general trend that is confirmed when meaningful whole-year data is generated (hopefully with gender disaggregation). Say McKelvie's hunch is vindicated and the Sexual Offences (Scotland) Act 2009 seems generally to have increased rates of conviction for rape-labelled offences. The really perplexing question is then, why? Consider the following facts. Firstly, while the new Act broadened definitions of rape, this was primarily a relabelling exercise, expanding the range of conduct characterised by the laden, weighty terminology of rape. To have done so seems to contribute little to achieving convictions in cases where previously, the accused person would have been acquitted. Alternatively, could it be the clarity afforded by statutory definitions of consent has made the radical difference? Something else? If so, what?

Secondly, these new laws are operating within the old system of trials, with their familiar limitations and difficulties for rape complainers and the proving of cases.  There has been no change to the decision-making structure (no elimination of juries, for example; no dedicated rape courts, another), no abolition of corroboration (yet), no additional constrictions on the adversarialness of proceedings, no movement away from the charged language of rape, which some have argued make juries less likely to convict accused persons who they might be less reluctant to convict of sexual assaults. All of the familiar problems, and brutalisations, and decision-making structures operate under the new laws as the old.

Certainly, when they were passing the new sexual offences law, a number of Holyrood politicians alluded to the idea that in so doing they thought to increase conviction rates, particularly when a charge of rape is indicted. But there was very little in the reform, it seems to me, actually likely to increase rates and numbers of convictions. While the 2009 Act was certainly a big reform, by no means was it driven by any attempt to identify and eliminate impediments to conviction in rape cases.  More radical alternative approaches to the prosecution of sexual offences were not explored, the parliament's activity focussing almost exclusively on the idea of updating old-fashioned definitions of offences, better to reflect contemporary understandings. Improving rates of conviction was at most an ancillary hope, without much basis for hope.  If by some eccentric and unanticipated chance, the Act has achieved precisely that - and at this stage, whatever attractive percentages are available to us, we really have no meaningful basis for that conclusion - it will be a fascinating oddity.

1 comment :

  1. By way of addendum, Ian Smart has raised a valuable point on Twitter. The Crown Office have introduced specialised prosecutors relatively recently, who focus on the investigation and prosecution of sexual crime. As Ian suggests, it will be exceedingly challenging to distinguish the impact of the 2009 Act from those driven by this practical specialisation in the COPFS.