A brief history of how we lost our way on rape

Daily Telegraph, Sunday 2 February 2020


Many people have been outraged by the recent case of a 19-year-old British women in Cyprus – and it has illuminated our attitudes to rape victims, says Joan Smith


It seemed, for a moment, as though things had changed. Back in 2017, when a series of well-known women publicly accused the Hollywood producer Harvey Weinstein of sexual assault, the #MeToo movement was born. Thousands of women across the world talked about their own harrowing experiences, encouraging many more victims to go to the police.


Weinstein is currently on trial in New York, where he has denied five charges of rape and sexual assault involving two women. But the expectations raised by #MeToo, in this country and the US, are in danger of being dashed. And while rape remains in the headlines, it is often for entirely the wrong reasons.


Many people have been outraged by the treatment of a 19-year-old British women in Cyprus. Last July, she told local police she had been gang-raped, only to find herself tried and convicted of making a ‘false’ allegation. The case is undeniably shocking, but the outlook for victims in this country is nothing to shout about.

Newly-published figures show that rape convictions fell by 21 per cent in the year to September 2019. Prosecutions are down by 26 per cent, while police are sending a third fewer cases to the Crown Prosecution Service (CPS) for charging decisions.

There is no doubt that this situation represents a crisis in the criminal justice system. Almost 60,000 individuals who report a rape each year are being let down on a grand scale, prompting the Victims’ Commissioner for England and Wales, Dame Vera Baird, to call for an inquiry into the quality of decision-making at the CPS.

In a world that really cared about the rights or women, MPs and ministers would be losing sleep over the way victims have been let down – and the fact that thousands of rapists are being allowed to get away with their crimes every year.

But while inquiries into institutional failures are necessary, none of them has ever got to the heart of why so many rape cases end badly for the victim.

The harsh truth is that this is what happens when a criminal justice system fails to eradicate centuries of prejudice about rape victims. From the dawn of time, people in power have worried more about how to protect men from rare instances of false allegations – and less about getting justice for bruised, brutalised and traumatised women.


How we got here: a quick history lesson


This anxiety, not always acknowledged but ever-present, can be traced back centuries. For Sir Matthew Hale, the seventeenth-century judge whose pronouncements had such a malign influence on English rape trials, the danger to men was clear.

‘It must be remembered…that [rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent’, he wrote. I doubt whether many women, then or now, would think that making an accusation of rape is anything other than fraught with anxiety.

Hale’s ideas about women can be inferred by the fact that in 1662 he sentenced two elderly widows in Bury St Edmonds to death by hanging for witchcraft, which doesn’t perhaps make him an ideal modern authority on sexual violence. Yet his assertion that married men could not be found guilty of raping their wives remained the law in England and Wales until 1991.

In October that year, the law lords upheld the conviction of a husband for attempting to rape his estranged wife, finally acknowledging that Hale’s ruling was an ‘anachronistic and offensive’ fiction.

The ever-popular category of ‘women who can’t be raped’ appeared to have been reduced at a stroke. As late as the 1980s, however, some British police forces were reluctant to bring charges in cases where the woman making the accusation sold sex for a living. It wasn’t formally the case that a man who raped a prostitute couldn’t be prosecuted, but the pernicious idea that some women have forfeited protection through their status or behaviour stretches back to Roman times.

Some categories of women – slaves, prostitutes and women who weren’t Roman citizens – could not legally be victims of rape. In a reversal familiar to anyone who has followed the Cyprus gang-rape case, a victim who made an accusation against a man who was later acquitted could find herself charged with calumnia, the Roman equivalent of making a false allegation.

The English word rape derives from the Latin raptus, which means abducted or seized – rather than referring directly to sexual violence. It reflects its origin in property laws, where kidnapping a young woman for sex or indeed marriage was regarded as an offence against her father or guardian. In 320 CE, under the emperor Constantine, raptus became a capital crime but the victim was punished as well, on the ground that she could have avoided the attack by shouting for help or staying at home until she was married.

It may not be much comfort to 21st century women, but the obligation of rape victims to act in certain ways or fight off their attackers – and have the injuries to prove it – has a very long history.


The search for the ‘perfect’ victim


We know how rape victims are supposed to behave. They should have an impeccable sexual history, dress modestly, drink in moderation, avoid sending jokey texts to friends about sex – and never, ever go back to a man’s hotel room. A sizeable section of the public, from which juries are drawn, blames women who do any of these things, scrutinising their behaviour with the lofty moral certainty of a Roman philosopher.

Until very recently, such attitudes were encouraged by the law, which allowed the defence to introduce evidence about the complainant’s sexual history to discredit her. Since 1991, there have been restrictions on such evidence in rape trials but the act includes several exceptions, one of which relates to supposedly ‘similar’ behaviour by the complainant with other sexual partners. It was used in the 2016 retrial of the footballer Ched Evans, who was cleared of rape after male witnesses were allowed to tell the jury about their past sexual encounters with the woman who had accused him.

Two years ago, Dame Vera Baird and the Labour MP Harriet Harman, both former solicitors general, criticised the use of such evidence in the Evans trial as ‘prejudicial’ and ‘irrelevant’. Since then, the risks facing complainants have become even greater, with demands to hand over mobile phones and computers being condemned by campaigners as a ‘digital strip-search’.

At the same time, as many of us predicted, defendants have even less reason to fear being prosecuted and convicted. In the year ending March 2019, a total of 58,657 rapes were reported to the police. They resulted in just 1,925 successful prosecutions.

Do we really believe that just over 96 per cent of these complainants were lying? It seems much more likely that they were they deemed not-good-enough witnesses for one reason or another. After all, the search for the ‘perfect’ rape victim has never been called off.

Even when a victim has a seemingly ‘perfect’ case, things don’t get any easier. You only have to read about Chanel Miller to know that; she was the woman raped by Stanford University student Brock Turner in 2015 but she still had to fight tooth and nail to get justice, despite the existence of eyewitnesses, physical evidence – and the fact that Turner fled the scene. (If you can call three months in prison justice, that is.)

What hope is there, then, for the rest of us? Last year, thousands of victims failed the cut. Their cases were discontinued, never sent to the CPS or returned with a decision not to prosecute. For each of those women, it must have felt like slap in the face.

Two thousand years ago, some women didn’t have any legal right not to be raped. These days, we’re all entitled to the same protection from the law – and the #MeToo movement seemed to be a symbol of how much attitudes had changed.

But the figures tell a different story. We no longer have a formal category in this country of women who ‘can’t’ be raped – but there appears to be no limit on the number of victims who can’t expect protection from the law.