This is a sad day. I belong to a national coalition of women’s organisations which have finally been forced to launch a legal challenge against the Crown Prosecution Service for its failure to prosecute rape.
We believe the CPS has altered its approach in how it makes decisions on whether to charge or drop rape cases. For almost a decade, the CPS used a “merits-based” approach to building rape cases. This means working from a thorough consideration of the law on rape (the seeking as well as the giving of consent, and being in a fit state to do so) and building a case that assumes the jury will make a decision without relying on “rape myth” prejudices.
We believe the CPS has reverted to permitting the second-guessing of jury prejudices, which is a disaster for justice for a crime that is already a terrible fit in our adversarial system. We believe this change has been made covertly, possibly with a view to performance-managing CPS outcome statistics on rape.
The change in approach has had a huge impact on the number of cases reaching court. Figures shared in the 2018 CPS annual report on crimes of violence against women show there was a 23.1% drop in the number of rape cases charged in the previous year, despite a 16% increase in police recorded rape over the same period.
Figures not yet published (but shared by the government with stakeholders) show rapes reported to the police are up by 173% over the past four years, but the number of cases charged and sent to court is actually down by a shocking 44%.
Behind the numbers are thousands of women who are being denied justice. If #MeToo was a global scream for the world to wake up to the scale and impact of sexual violence, the CPS is covering its ears and looking the other way. We have been driven to this legal action after monitoring these drastic changes – and after hearing from our member organisations and from many women about appalling and unfathomable decisions by prosecutors to drop their cases.
Rebecca (not her real name) says she was raped at knifepoint and held prisoner for two days by a man she had been dating. Despite lots of evidence that Rebecca had been subjected to violence, and the fact that her attacker was known to the police for being violent, the CPS prosecutor dropped the case, saying WhatsApp messages she had sent to placate her attacker could be misinterpreted by the jury. Rebecca’s experience is included in a dossier of women’s cases that will be submitted as supporting evidence in our legal case. These women reported what happened because they knew the men who attacked them were dangerous – and are free to reoffend.
This covert and frankly reckless shift in CPS process comes, tragically, after almost a decade of strong progress. The CPS was actually a pioneering government agency in that, since 2007, it had adopted a proactive strategy to try to improve rape justice outcomes. Intensive, painstaking work, including the development of the merits-based approach and training specialist prosecutors, led to results which previously would have been impossible.
In practice, this meant cases like those against the “grooming” gang in Rotherham made it to trial because prosecutors worried less about how they thought the jury might react to the young victims, who could be induced to “admit” a defendant was their “boyfriend”, and instead focused hard on building a case against their abusers. Perpetrators who would never have been charged – because they were expert at targeting vulnerable victims who they knew wouldn’t be believed – were now being charged and convicted.
A Guardian investigation last September began documenting the changes at the CPS and their impact, including speaking to anonymous sources in the criminal justice system who said the CPS is now encouraging prosecutors to drop “weak” cases. At the End Violence Against Women Coalition we fear that assessments of victims’ characters and implied sexual history – and their presumed credibility for a jury – are being used to inform decisions about whether or not to bring rape cases to court. We want the CPS to show some professional curiosity about its own performance, and then to immediately reinstate the merits approach to building rape cases. Women and men whose cases were dropped during this period should have them reviewed.
The legal challenge we are bringing against the CPS is human rights based, because the serious harm done by rape has a discriminatory impact on women, who make up the large majority of victims.
We have launched a CrowdJustice appeal to fund it. The supreme court has already upheld a comparable claim against the police for failing to respond effectively to rape. If change does not come soon, we will see the CPS in court.
• Rachel Krys is co-director of End Violence Against Women Coalition