In the new edition of the Spectator, Matthew Parris has sounded off about rape in a way that is almost certain to trigger a heated response. Any discussion of sexual offences is tied up with important questions about how we deal with the societal subjugation of women; surprisingly enough in that context, Parris’s piece isn’t all bad. His piece starts well, but soon dissolves into a evidence-free speculation that ought to be, and probably will be, disregarded by everyone in the field. Further, it reveals somewhat troubling assumptions about how criminal justice ought to operate.
I won’t address his opinions on the morality of sexual intercourse where alcohol is involved, because that is not the purpose of this post – that is for other, more authoritative voices than me. I am more interested in his factual assertions, and unlike many commentators Parris correctly identifies that the conviction rates for rape in this country, once it gets to trial, is approximately 60%1.
Where his analysis falls apart is what he says about the other 40%. He places the blame for these charges which fail to result in a conviction on juries, or largely on juries, who he says are uncomfortable with calling many sexual offences “rape”, even if they do actually fall into that category.
It is a bold statement. It is also unverifiable, for reasons I’ll get to below. What is certain from the available statistics is that it really isn’t that simple. That 40% of cases can be subdivided2.
The statistics indicate3 that two-thirds of what the CPS calls “unsuccessful outcomes” (that is, cases where there is no conviction) are down to jury acquittals. Almost all of the remainder occur when the prosecution drops the case. About a third of the cases about which Parris is incensed, then, happen because the CPS, for whatever reason, decides that the prosecution is unlikely to be successful, not because juries think the law on rape is unjust.
So what of the acquittals? Nobody knows exactly what juries think because to talk about what goes on in the jury room is a serious criminal offence, namely contempt of court. If Mr Parris does know what goes on in a jury room, he is either committing an offence or colluding in one. If not, he has absolutely no business speculating on whether or not jury nullification is at play for so many offences. He cannot really have any evidence for his conveniently unverifiable statement without putting himself at risk of a prison sentence.
More to the point, his opinion that all charges should result in a conviction is a very dangerous one. The point of a trial is to test the truth of an allegation, not for a defendant to prove his innocence. I wrote recently about how it is entirely possible for a genuine allegation of rape to fail to meet the fault requirements for convicting, labelling and punishing the offender. For Parris to allege that not guilty verdicts come, not because the defendant is innocent or that the evidence is insufficient to support a complex charge like rape, but because juries don’t think a conviction would be morally acceptable is a dangerous falsehood unsupported by any evidence.
He makes the odd good point about how overextending the definition of rape can, in the end, lead to a devaluation of the term, resulting in injustice down the line, but the current definition of rape is simply not overextended. Having sex with someone without reasonably believing that they consent4 is rape. There is no ambiguity there, and nor should there be – the question is precisely where we draw the line on “reasonable belief”, and there is a healthy and ongoing debate within the feminist movement and more widely in legal and criminological thinking about the importance of that line for future policy.
The problem is not just the philosophy of the piece. The fact of the matter is this: there is absolutely no reason to believe that juries are returning perverse verdicts because they think the complainant deserved it, or because they think the law of rape is overinclusive. If there were, that would be catastrophic. Matthew Parris is wildly speculating on a subject about which he simply doesn’t know enough, and neither victims nor defendants are well-served by such scattergun writing.
3The statistics are a little fiddly to interpret, but to get the chart above I isolated the elements referring to unsuccessful outcomes, and stripped out the subdivision of the prosecutions dropped (for no evidence offered) in the third row of the Rape Prosecution Outcomes data.