Rape victims can’t get justice because the system is collapsing – and here is the ‘damning’ proof

Daily Telegraph, 17 December 2019

The first duty of government is to protect its citizens – and it is failing women. Every year, thousands of women and girls are raped and subjected to horrendous assaults, with no realistic hope of seeing their attacker held to account. A shocking new report has finally acknowledged this stark truth, admitting that ‘the number of rape allegations lost in the investigative process is damning’.

‘Damning’ is a strong word. It is contained in a report by HM Crown Prosecution Service Inspectorate (HMCPSI), which is about as an official body as you can get. ‘If 58,657 allegations of rape were made in the year ending March 2019 but only 1,925 successful prosecutions for the offence followed, something must be wrong,’ it observes with a degree of under-statement.

The report is the first product of an end-to-end review by a number of government ministries and agencies, announced after a dramatic increase in the number of rape reports and a fall in the number being prosecuted. The report bears out a great deal of what critics of the criminal justice system have been saying for years, highlighting the effect of chronic under-funding; almost 40 per cent of CPS lawyers who were interviewed for the report said that their caseload was ‘heavy and unmanageable’.

It also criticises some CPS lawyers for demanding sensitive personal data, including medical reports and downloads of mobile devices, that weren’t necessary to the investigation. Victims’ lawyers have been saying as much for months, and a complaint about demands for school reports and other historical material is currently being investigated by the Information Commissioner.

But women’s groups have been quick to point out shortcomings in the HMCPSI report, which asked experienced prosecutors to examine decisions in a sample of rape cases. What it didn’t do was talk to victims, their lawyers or women’s organisations, who all insist they have seen a change in the way prosecuting decisions are made. If they had, the report’s authors would have heard a very different story: ‘We are inundated with examples of compelling cases of rape prosecutions being dropped by the CPS or by the police who say there is no point in referring cases to the CPS any more,’ said Harriet Wistrich, director of the Centre for Women’s Justice.

The new report admits that the CPS is charging fewer cases. The number referred by the police has dropped by 22.6 per cent over three years but the fall in cases that proceed to prosecution is even more dramatic – a drop of 52.1 per cent in the same period. The report defends the CPS, claiming this trend ‘is not as straightforward as it may appear’, and it clears the organisation of being ‘risk-averse’ – a claim first made last year, after the Guardian reported that CPS lawyers were being advised to take weaker cases out of the system.

The report asserts that the allegation of weeding out weaker cases ‘is not supported by the findings from this inspection’ – but that isn’t the end of the matter. The issue is due to be aired in court after the End Violence Against Women Coalition (EVAW) launched a legal challenge against the CPS in September.

There’s no doubt that the police, who carry out rape investigations and turn over their findings to the CPS for charging decisions, will be unhappy with the way they’ve been put in the firing line. But the report nevertheless contains the profoundly shocking admission that the police are now so under-resourced that their part of the criminal justice system ‘may have gone beyond’ breaking point.

How can women possibly get justice if the system is collapsing? And why have things been allowed to get this pass, which means that the vast majority of rape victims will never see their attacker in court, let alone convicted? We should never forget that behind each statistic is a human being who has suffered a horrific assault, which may take a lifetime to get over.

And it’s not as though this crisis, which isn’t too strong a word for this unforgiveable situation, has happened out of the blue. Report after report has shown the same trend: many more women listening to the message about reporting rape, only to find themselves enmeshed in a nightmare of delays, intrusive demands for personal information, and shattering disappointment when the case is marked ‘no further action’.

Let’s be frank: if someone had set out to design a criminal justice system whose central concern was the rights of defendants, rather than the victims it is supposed to protect, this is what it would look like. Women are being let down on a massive scale, but the other consequence is that predators are being sent a hugely damaging message. With so few cases ending up in court, thousands of rapists are being left to seek out new victims, with no fear of arrest or prosecution.

  

Dismissing domestic abuse as a ‘toxic relationship’ is only making things worse

Daily Telegraph, 11 December 2019

Something has changed, rather dramatically, in the way we think about domestic abuse. In case after case, lawyers for women convicted of murder are revealing previously unexamined histories of physical harm and psychological control. They argue that the long-term effects of domestic abuse were not considered at the women’s trials.

After decades of treating such women as killers, with no mitigating circumstances, the criminal justice system has finally begun to understand the impact of prolonged abuse. It’s a huge step forward from the days when police called to domestic incidents used to distribute blame equally, talking about ‘six of one and half a dozen of the other’. We now know that women who kill a partner have often had every aspect of their lives controlled for years, inflicting profound psychological damage.

This development has been widely welcomed. The campaigning organisation Justice for Women has a list of women they believe were wrongly convicted because their experience of domestic abuse was not produced in evidence at their trials. They hope to see more murder convictions overturned and replace by manslaughter verdicts, using evidence about the women’s psychological state that wasn’t available to juries.

This shift towards more humane attitudes has not been universally welcomed, however. The old vocabulary about domestic abuse was crude and victim-blaming, evident in cartoon strips where wimpish husbands cowered away from ‘nagging’ wives. Now it’s more subtle, framed in terms such as ‘toxic’ or ‘volatile’ relationships which once again appears to distribute blame between both partners.

Let’s be clear – in most cases of domestic abuse, it’s the perpetrator’s actions that are at the heart of the problem. Abusers know what they are doing, deliberately creating confusion and fear as a means of control. Depersonalising such behaviour obscures reality, placing an additional burden on the victim – if the relationship was ‘volatile’, why didn’t she just leave? The answer is often that every aspect of her life was controlled by her abuser, who undermined her until she didn’t think she could survive without him.

This form of abuse was central to Sally Challen’s successful appeal earlier this year against her conviction for the murder of her husband, Richard, almost a decade earlier. In February, the court of appeal ordered a retrial after her lawyers argued that she had been a victim of coercive control, which was recognised as a criminal offence only in 2015. Four months later, the prosecution accepted her plea of guilty to manslaughter and she was released due to time already served.

This month, two other women supported by Justice for Women have been in court to challenge their murder convictions. Farieissia Martin was only 22 in 2015 when she was convicted of the murder of her boyfriend, Kyle Farrell, but his history of violence towards her was not explored at her trial and no assessment of her mental state was carried out. Last week, a panel of three judges granted leave to appeal and a hearing is due in the new year.

On Tuesday, lawyers for 26-year-old Emma-Jayne Magson, who was found guilty of murdering her boyfriend in 2016, produced new psychiatric evidence that wasn’t heard by the original jury. They said that Ms Magson, who had been exposed to domestic violence and ‘parental neglect’ as a child, was suffering from a personality disorder when she stabbed James Knight. The court was told he had tried to kick down her front door after being ‘violent to her earlier in the evening’.

But if the criminal justice system has moved on, the headlines that followed Ms Magson’s hearing tell a very different story. ‘Mum who stabbed abusive lover to death backed by fellow-killer Sally Challen’, reads one. Another describes Ms Magson as a ‘brutal’ killer who ‘sacrificed’ her boyfriend with a steak knife. The judges reserved their decision to a later date, unlike some elements of the popular press.

Victim-blaming has always been common in court cases but now it’s taken a new and shocking form. Last month, many people were appalled by a murder trial in New Zealand which hinged on the so-called ‘rough sex’ defence. The unnamed defendant, who alleged that his British victim had asked him to choke her during sex, was found guilty òf murder – but only after his unsubstantiated claims made headlines around the world. This defence, which the victim can’t challenge for obvious readons, is being used increasingly often in murder cases, leading to calls for it to be banned.

Attitudes towards violence against women are evolving – but sometimes it feels as though we are going backwards. It’s taken years to persuade the criminal justice system to recognise the impact on women of prolonged abuse. But claims about ‘volatile’ relationships and ‘rough sex’ are diversions from the real problem. Why is it still so hard to name male violence?

 

 

 

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