Jerry Hayes – hero of the hour
Here’s another piece I hadn’t planned to write. I have previously – and probably wisely – avoided the quagmire of false rape allegation statistics. But hot on the heels of #MeToo, we have Liam Allan and Isaac Itiary. Questions are now being asked about the conduct of rape trials, and in particular the role played by the police and the Crown Prosecution Service (CPS).
This prompted me to look at the rape statistics – something I haven’t done for a few years. I thought I knew what I would find. I was wrong. Things have changed.
My intention is to cover the following major topics,
- Guilty Until Proven Innocent – Recent Events
- Rape Statistics
- The Law on Rape – A Gendered Crime
- False Rape Accusation Statistics
- Case Histories of False Rape Accusations
However, to avoid another of my infamously over-long blog pieces, I’ll be covering the above topics in three separate posts. This, the first, covers the first two topics. The rest will follow over the next couple of weeks, assuming my enthusiasm holds.
- Guilty Until Proven Innocent
The debacle du jour concerns the lack of disclosure of exculpatory evidence by the police. To be more precise, in two rape cases which have come to prominence, disclosure was made but only at the last minute and with considerably less than alacrity. Had the disclosures not been made, both these young men, Liam Allan and Isaac Itiary, would probably have gone to prison for a long time and none of us would have ever heard of them. The concern, of course, is that this has been precisely the fate of many young men before them.
The case against Liam Allan collapsed when former conservative MP Jerry Hayes, the prosecution barrister – yes, the prosecution barrister – insisted that the police hand over the evidence from the complainants ‘phone. Some 50,000 messages were finally revealed on the first day of the trial itself. The defence advocate, Julia Smart, should be mentioned in dispatches. She spent the rest of that day – and undoubtedly all night – reviewing the contents of the new disclosure. Among them were messages to Mr Allan pestering him for sex, and fantasising about “rough sex and being raped.” One message read simply “it wasn’t against my will or anything”. The prosecution advised the case be withdrawn. It was.
Jerry Hayes said, “The police have to be independent and they cannot cherry pick evidence. They are not there to build the case for the prosecution.” We can take some comfort from the continued existence of decent people such as Mr Hayes who are still motivated by justice, albeit hamstrung within a broken system.
Liam Allan had been under investigation or awaiting trial on a false allegation for nearly two years. Had he been convicted – and there was a better than 50% chance he would have been – he would very probably have received a sentence of around twelve years imprisonment and he would have been on the sex offenders’ register for the rest of his life. A young man would have had his life ruined by a false allegation. He owes his freedom to the professionalism of the man instructed to prosecute him.
One of the notable aspects of this case – and it isn’t just one case really, it’s a tipping point, a denouement, a purgation – is the number of experienced lawyers who are now being extremely outspoken about the failures of the system.
Solicitor Nick Freeman has called for people who make false rape and sex assault allegations to be stripped of their statutory anonymity and named on a public register. “The time has come for there to be a register where the names of those who make these disgraceful and disgusting allegations are added”, he said, “Sadly, Mr Allan’s case is not a one off. It is one of many – the tip of the iceberg. False allegations are made on a daily basis, and those who make them can hide behind a lifelong veil of anonymity.”
Freeman is not the first lawyer to call for such a false-alleger register. The appeal court judge Lord Lane made a similar suggestion when considering the 3 year sentence received by a false claimant in the 1980s (quoted in Rumney 2006).
In an excellent résumé, Matthew Scott, the Barrister-Blogger, sums it up, “Despite the magnificent performance of Mr Hayes, a case like this ought to shatter any remaining illusions that the English and Welsh criminal justice system is fit for purpose.”
There has been no indication that the false accuser is to be prosecuted. Somewhere out there is a woman without conscience who is being protected by the law, protected by guaranteed anonymity. What is there to deter her from making another false accusation, perhaps next time successfully destroying a young man’s life? Far fetched? Wait until you read the case histories. You will see that serial false accusers are not uncommon.
The judge in the Liam Allan case demanded a review of disclosure of evidence by the Metropolitan Police, Britain’s biggest force, and called for an inquiry at the “very highest level” of the Crown Prosecution Service (CPS). Regular readers of this blog will know I am no fan of Alison Saunders, the Director of Public Prosecutions. But unfortunately cutting the head off the snake is unlikely to be sufficient. Saunders’ predecessor, Keir Starmer, was little better. The rot in the CPS runs deep and will require concerted determination over years or decades to overturn. An institutionalised ideology is not so easily neutralised.
The Metropolitan Police said it would assess whether it was obeying laws on disclosure in hundreds of potential prosecutions following these well publicised failures. But what about the rest of the country?
Part of this cultural expurgation must include a distancing of police ‘training’ from lobbies with partisan politics. In that context it is about time that feminism was recognised as a political opinion, not the definition of loveliness.
There are those who will claim that it is not the job of the police to investigate evidence which might assist a defendant. DefenceBrief.BlogSpot, another lawyer’s blog, refutes such claims thus, “such claims are absurd morally, practically and legally. Morally because such a situation would mean that an investigator who spots material that looks like it could lead to material that would prove innocence would be justified in ignoring it and that will always be morally wrong. It is practically wrong because the police as agents of the state hold powers and have resources to investigate not available to individuals. A prime example, is the power to seize telephones as evidence and interrogate them, which is something no defendant can do lawfully for himself.”
Isaac Itiary, 25, was accused of sex with a minor (described in the news reports as “rape of a child”, which is technically correct). The defence asked for details of the girl’s text messages in September but they were provided only this week. They showed that she routinely posed as a 19-year-old. Again a case collapsed which should never have been brought at all. Mr Itiary spent four months in jail awaiting trial. The investigating police officer was the same man in both the Liam Allen and Isaac Itiary cases. However, this is not about a single police officer.
The knee jerk reaction has been to blame lack of police funding. I am unmoved. I have heard lack of money blamed for organisational incompetence too often to fall for that. What funding is required to hand over ‘phone messages – messages that the defence council was able to review sufficiently over-night?
Senior lawyers are now claiming that these recent cases may be just the tip of the iceberg. I alluded to #MeToo earlier. I do wonder whether lawyers are finally waking up to the pernicious nature of misplaced chivalry in an age of equality.
And this brings me to my point.
Important though the disclosure issue undoubtedly is, there is something even more fundamental being exposed here. It is this: the eradication of the principle of innocence until proven guilty. This has already happened. The reason why the non-disclosure of exculpatory evidence was so crucial in these cases is that men accused of rape are required to prove their innocence. The prosecution case rests on the negative that the accused should be unable to do so. This is the true failure of the system. And it has come about through ideological corruption of the process. That terms like “victim” or “survivor” are routinely used for the complainant, prior to any conviction, is symptomatic of this ideological annexation of the judicial process.
We are teetering over an abyss. Do we pull back from the brink and re-assert genuine justice and equal consideration for all regardless of sex? Or do we further deepen our gendered approach to justice? Whilst there is much agonised hand wringing at present, these things have a habit of being quickly forgotten. And the usual lobbies will soon assert themselves.
Here is a salutary lesson from Canada. The fine print within Canadian Bill C-51 will be to eliminate the automatic disclosure of evidence such as that which played such a key role in the Liam Allen and Isaac Itiary cases – watch this video. There is a very reasonable view that this move in Canada was prompted by the failure to gain a conviction in the celebrated Jian Ghomeshi case – a case that also went against the prosecution when email exchanges showed conclusively that the complainants had colluded and lied. To any sane person this Canadian trial reached the right conclcusion, vindicating the process. But not to the gender ideologues who wanted his blood. That lobbies which are transparently on the side of injustice have gained the ability to mould the law to their liking is about as chilling as life gets. It remains to be seen whether we go the same way. I am not sanguine.
- Rape Statistics
This Section refers to the UK alone. In fact, unless otherwise stated, the data relate to England and Wales only. Both males and females may be victims of rape.
In English law, rape is defined as penetration with a penis without the consent of the penetrated party. Hence, only people who possess a penis can rape. This used to mean males. However, with the law about to be changed to allow biological males to identify as female by personal fiat, it will soon be the case that some females-with-a-penis will be rapists. (I don’t envy the statistical authorities the problem of how to gather gendered data – on anything – in this brave new world. I suspect such data will continue to be collected based on biological sex, so that the relevance of legal gender will be marginalised by sheer practicality).
Here we must distinguish between several distinct types of rape statistic,
- Survey based estimates of total victimisation;
- Reports of rape recorded by the police;
- Prosecutions for an initial charge of rape;
- Convictions for rape.
It is also important to distinguish rape data which refer to victims of either sex from data which are specific to one sex (usually females). Similarly, care is needed to distinguish between data referring to victims in a restricted age range (e.g., adults) from that for all ages.
The above are in order of diminishing size of the statistic, largest first – although, as we shall see, items 1 and 2 have recently converged. These four distinct measures of rape prevalence are nicely illustrated by Figure 1.
For convenience the data sources on which this Section is based are collected below,
- Ref.1: An Overview of Sexual Offending in England and Wales, Ministry of Justice, Home Office & the Office for National Statistics, Statistics bulletin, January 2013
- Ref.2: Focus on: Violent Crime and Sexual Offences, year ending March 2015 – Appendix Tables
- Ref.3: Crime in England & Wales, year ending June 2017 – Appendix tables
- Ref.4: Violence Against Women And Girls Crime Report 2016-17, Crown Prosecution Service
- Ref.5: Violence Against Women And Girls Crime Report 2015-16, Crown Prosecution Service
- Ref.6: Violence Against Women And Girls Crime Report 2014-15, Crown Prosecution Service
- Refs.7, 8 and 9 are the similar CPS VAWG reports for 2012-13, 2010-11 and 2008-9
- Ref.10: https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2014
Figure 1: Illustration of the distinct rape measures – taken from Ref.1 (Relates to average of years 2009/10, 2010/11 and 2011/12) – click to enlarge
Survey Estimates of Total Victimisation
Ref.2 Table 4.04 gives the percentage of survey respondents indicating they were raped in the preceding year, for years between 2005 and 2015. (Here year 2005 means the year ending March 2005, etc). Figure 2 plots the data for women victims in histogram form. Note that the survey data refer to females in the age range 16 to 59 only.
These data surprised me. The survey-based estimates of the prevalence of rape of women used to be around 0.9% per year – but in the last three reported years this has fallen dramatically to 0.3%.
The prevalence data can be converted to an estimate of the total number of victims with the help of Figure 1. The average prevalence in years 2009/10, 2010/11, 2011/12 was 0.93% (from Figure 2) and Figure 1 indicates that this corresponds to a central estimate of 78,000 victims, with an error bar of plus/minus 18,000. Hence, in 2014 and 2015 the estimated number of adult women victims would scale to 25,000 plus or minus 18,000.
The error bar is inevitably large. To see why consider year 2015 when the female ‘unweighted base’ (i.e., the number of women contributing to the 0.3% estimate) was 10,363. But 0.3% of 10,363 is just 31 women who stated in their survey response that they had been raped in the previous year – a rather small statistic. Estimating 25,000 victims from just 31 is quite an extrapolation.
[The survey data for completed rape of men are too small to be reliable, perhaps around 5 cases out of typically 5,000 to 10,000 male respondents. However, this is what one would expect for a total number of adult male victims in the order of a few thousand].
Figure 2: Survey based estimate of the prevalence of rape of women aged 16 to 59
Police Reported Rapes
Data are taken from Ref.3 Table A4. This breaks down the reports of rape to the police by both sex and age range. Figure 3 shows the total number (both sexes, all ages) and the number for females alone (all ages). Figure 4 shows the female reports broken down by age range, whilst Figure 5 shows the numbers of reported male victims, also broken down by age.
The bulk of rapes of females relate to adult women. In contrast, most rapes of males relate to the under-13s. There is one under-13 boy raped for every two under-13 girls who are raped. Across all ages, males account for 11% of all reported rapes.
The striking feature of all the police reports (Figures 3-5) is their dramatic upturn since 2013. (I’m sure it can only be coincidence that this aligns with Alison Saunders becoming DPP in November 2013). This is in stark contrast to the emphatic downturn in the survey-based estimates of rapes over the same period (Figure 2). By June 2017 the total reported male victims had climbed to over 4,800, and that of females to over 40,000.
The greatest surprise, though, is to compare the survey based estimate of adult female victimisation with the corresponding police report data – Figure 6. Up until 2012 the survey based estimates of total rapes (of women) were substantially larger than the recorded police rape data. But the rapid fall in the former together with the rapid increase of the latter has led to the number of police recorded rapes of women to become comparable with the survey estimates in 2016 and 2017.
For years we have been told that rape is massively under-reported. But Figure 6 would suggest that,
- Either, rape of women is now being well reported;
- Or, if rape is still being under-reported, there must be a compensating “over-reporting”, i.e., widespread false accusations.
Of course, the error-bar on the survey estimate is very large, so care must be exercised to avoid too definitive a conclusion. Nevertheless, Figure 6 is revealing. And, if the police reported rape data should continue to climb over the next few years and ultimately exceed even the survey upper bound, suspicion will become justified.
Figure 3: Police Reports of Rape (all ages)
Figure 4: Police reports of rape of females broken down by age range
Figure 5: Police reports of rape of males broken down by age range
Figure 6: Comparison of Survey Estimates of Adult Women Rape Victims with Police Report Data
Prosecutions and Convictions for Rape
Data on rape prosecutions and convictions have been taken from the CPS VAWG reports, Refs.4-9. However, great caution is needed in using these sources for this purpose. Since Alison Saunders took up the position of DPP in November 2013, the main text of these VAWG reports became very misleading as regards what is ostensibly reported as a “rape conviction”. What the CPS have reported recently is the number of convictions resulting from an initial charge of rape. However, in a large proportion of cases (around half) the data actually refer to a conviction for a lesser offence – not a conviction for rape. However, the correct data, from Ministry of Justice sources, is included in Annex 2 to the VAWG reports in these cases. We find the data is as given in Table 1 and presented graphically in Figure 7.
Table 1: Prosecutions and Convictions for Rape (England and Wales) – includes victims of both sexes
Figure 7: Rape Prosecutions and Convictions Per Year (both sexes)
The number of convictions for rape does not reflect the huge increase in police reports of rape. In fact there appears to have been a significant reduction in convictions after 2009.
One thing which irritates me on reading CPS reports is that an acquittal is referred to as an “unsuccessful outcome”. Whilst I understand the CPS’s business is prosecution, it makes me uneasy that influential parties in the criminal justice process should regard as a success anything other than a just outcome. One feels that they perceive acquittals as “the jury screwed up”. Thank God for juries, I say.
In passing I note that the 2015/16 VAWG report indicates that, where ethnicity was recorded, 48% of rape crime defendants were not “White British”.
As regards the sex of the rape victim in cases prosecuted, this was generally 12% male over the period 2006 to 2016, occasionally dropping to 10% but not lower. This aligns well with the gender ratio in police reports. However, it seems that conviction rates are lower for cases involving male victims. For example, in 2014, of cases resulting in a conviction only 7% related to male victims. A detailed break-down for that year, from Ref.10, is given in Table 2.
Table 2: Rape Convictions by Age and Sex of Victim
|Convictions in 2014
|Rape of person > 16
|Rape of person < 16
|Rape of person < 13
Famously, the ‘attrition rate’ for rape of females is very large. By ‘attrition’ is meant the reduction in numbers through the criminal justice process, from initial reports to the police to eventual conviction. In 2014 only 6% of police recorded rapes of females led to a conviction. What is not generally appreciated is that the attrition rate for male rape is worse, as Table 3 indicates.
Table 3: Attrition Rate for Male Rape
|Sexual offences against males
|Rape of male > 16
|Rape of male < 16
|Rape of male < 13
The number of police recorded rapes has increased very markedly since 2013 (Figures 3 to 5).
This has not been accompanied by a similar dramatic increase in rape convictions (Figure 7).
Survey-based estimates of rape prevalence decreased dramatically in 2013 and are now compatible with the volume of police recorded rapes (Figure 6).
Alison Saunders became DPP in November 2013.
Just minutes after publishing this piece another UK rape case hit the press – that of Danny Kay whose conviction has just been quashed. Better late than never – but very, very late – four years into a four-and-a-half year sentence. Yet again this case was reversed upon the discovery of social media messages which told a different story from the complainant’s….
…and the same day, yet another case of last minute disclosure, crucial to exoneration – Samuel Armstrong.