Monday, January 14, 2008 

Prosecuting rape correctly.

As high-principled and well-meaning as the Guardian's sort of campaign for an increase in rape convictions is, you can't help that feel with their highlighting of the plight of Beth Ellis (a pseudonym) they haven't exactly chosen one of the easiest cases to prosecute.

Whether you can even really put it down as rape or not is one matter, as most would consider it continuous child molestation within the family. As harrowing as Ellis's account of her time after making the complaint to the police is, you have to look at it from the other point of view. They're being asked to investigate crimes that took place the best part of 10 to 20 years ago in a family setting, with Ellis and her mother's accounts of what happened on the one side, with her sister detailing physical instead of sexual abuse, with the denials and countering argument of the her stepfather (the accused) and his son that they had a happy family. There's no forensic evidence; just the testimony of Ellis, and she had the added help of being provided with a QC by the Guardian and a criminologist who said that her flashbacks and panic attacks were consistent with the aftereffects of being abused as a child.

The article itself goes into the details of how the prosecutor didn't speak to her, didn't take evidence on her trauma symptoms and also dismissed the evidence of her mother, who had an affair whilst married to the man in question, because of her "sexual history", out of hand, but even if the case had gone to court, would a jury have convicted the man under such circumstances? Usually when teachers or others in positions of power have been prosecuted for molesting children years after the fact, there's been a number of those who were abused whose testimony was overwhelming as a result. Here it was just Ellis's word and that of her mother's against the man: would it have been enough on its own to prove the case beyond reasonable doubt?

The possibility of introducing evidence obtained by the women themselves via text messages or phone calls, potentially entrapping the perpetrator into incriminating himself looks attractive, but it also runs the risk of being too vague and being used maliciously, even if it's a minor concern. That has to be considered when the figures themselves show that 8% of cases which don't result in a charge are a result of false allegations. The Guardian leader is circumspect enough, suggesting an introduction of a two-tier offence of "aggravated" rape, so that juries could convict without the possibility of the offender being given a life sentence, but that also risks suggesting that some rapes are somehow less serious than others, which when battling misconceptions and prejudice about rape is hardly the message to be sending. All options do have to be looked at, but the starting point has to be changing attitudes in the CPS, especially those highlighted by the case of Beth Ellis.

Reading her diary it's impossible for your heart not to bleed at the pain and suffering she's lived with after a childhood destroyed by abuse. Would she have gained closure though from a successful prosecution? The very last thing you want is for women not to come forward with accusations, but was she perhaps naive in thinking that almost any system would have not delivered the same crushing blow as that when the CPS decided not to prosecute? Would failure in court have hurt even more? It is of course incredibly easy for me to sit here in judgment and ask glib questions, especially when, as a young man, I'm probably the least likely demographic to be the victim of sexual assault and also probably the most likely to commit one, and I don't want to seem in any way cold-hearted, but in a case as difficult as hers, is there any way we can make conviction or even trial more likely without also opening up major possibilities for miscarriages of justice? Once again, it's a question we're not likely to find an answer to.

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