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4 May 2018updated 09 Jun 2021 10:17am

No, the legal system isn’t biased against men – it allows them to rape with near impunity

Someone who is raped has between a 1.1 and 1.8 per cent prospect of seeing their rapist convicted.

By jolyon Maugham

The Sunday Times recently published an article entitled “Falsely accused of rape: is the justice system biased against men?” Meanwhile, the Criminal Bar Association, which “exists to represent the views and interests of the practising members of the criminal bar in England and Wales”, tweeted out a number of comments in support of the article. 

But what is the truth?

Every year there is a Crime Survey for England and Wales. It gives a “better reflection of the true extent of crime… than police recorded statistics”, according to the Office for National Statistics. The Survey for 2017, published only a week ago, reported almost 51,833 offences of rape and 93,564 other sexual offences in 2017 alone. And these figures exclude the rape or sexual assault of children under the age 16.

In 2013, an overview of sexual offending conducted by the Ministry of Justice, the Home Office and the ONS, and using Crime Survey data, concluded that although there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.

This is an extraordinary thing. Based on the above figures, a person who is raped has between a 1.1 and 1.8 per cent prospect of seeing their rapist convicted. Only between one in 56 and 91 rapists are convicted. We have a system that allows men to rape almost with impunity.

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This is an epidemic. A full fifth of women have been sexually assaulted since turning 16. Well over a million have been raped or “assaulted by penetration” (including attempts).

And the tragedy that is rape does not end when the crime is done. The physical act merely fires the starting gun. Two thirds of women who are raped suffer mental or emotional problems as a result. Half having difficulty trusting people or in relationships. One in ten attempt suicide. But these, although large, are only numbers. And each of those numbers is a woman.

Lawyers – men and women like me – are the guardians of the criminal justice system. We must take as our starting point that this cannot continue, that a system that produces these results is failing, and requires fundamental reform. And we should design that reform and lobby for that design.

Instead, all too often, we look for others to blame. We lobby against changes to the status quo. We assert a unique expertise that excludes other voices. But we do not use that expertise to design positive change.

Yes, there can be poor evidence gathering by the police, weak decision making by the Crown Prosecution Service, ignorant and prejudiced juries, a poorly resourced system. But the system is a pyramid – and at its apex sits criminal trials. The consequence of a criminal law that operates to convict only in cases with very particular features is entirely predictable. The infrastructure around that law will bend itself only to the task of finding cases with those features.

The solution can only be to change the law.

It is not good enough for us to repeat the saying that it is better for ten guilty men to escape than one innocent man to suffer. That is not a sufficient answer. It is better, of course, for the guilty men. But it is worse for the women whose lives are destroyed by rapes that only happen because a system that convicts in one in 56 or fewer. We must weigh on the scales both the tragedy endured by a tiny number of men wrongly convicted of rape, but also the tragedy of the huge numbers of women whose rapes would be prevented if our system more effectively deterred rape. We must engage with that balance.

These few hundred words are not the place to remake the system by which rape is deterred. But we might start by asking, as Julie Bindel has urged, whether trial by jury serves the public interest in rape cases. The outcome of trials must follow from the evidence rather than preconceived ideas of how women “should” behave or the “correct” response to sexual threat.

For the one in 15 women in the United Kingdom who will be raped as an adult, many of whose lives will be destroyed by that event, the status quo is not an option.