The rape conviction rate
June 13th, 2008 at 8:37 am by David FarrarThe Herald reports on the law commission inquiry into sex cases, and the recommendation that an inquiry be held into whether there is a better way to conduct such trials than the adversarial one.
I have no problems with this, and am generally supportive of changes which are less “brutalising and distressing” for complainants.
However I get worried when I read:
Sir Geoffrey said there was also concern at the high number of acquittals in rape cases.
There may be a high number of acquittals because the Police policy now seems to be to prosecute no matter how flimsy the evidence. Any suggestion that people should be more easily convicted despite a lack of evidence is somewhat chilling.
As I said, no problems with changes to make it more complainant or victim friendly. But any move to make it easier to get convictions would be of concern. We should not throw away all principles of guilty beyond reasonable doubt just because most people think Clint Rickards unfairly was found Not Guilty.
Related posts:
- Sex conviction rate drops to 45%
- New sentencing guidelines for rape
- Rape convictions
- Judge throws out rape case
June 13th, 2008 at 8:44 am
So you are also concerned by the high number of acquittals, then?
[DPF: Good point. In theory a perfect system should have a 0% acquittal rate - no one should be charged who is not guilty and they are found guilty. So yes the high acquittal rate is definitely of concern, but the problem may not be a court problem but a Police problem]
Vote:June 13th, 2008 at 8:54 am
A propensity to prosecute more easily should be matched by a commitment to prosecute those who falsify rape claims. Any government interested in ‘fairness’ should see that as being fair. But I’m not holding my breath …
Vote:June 13th, 2008 at 9:22 am
One simple legal change that is far less dramatic than moving to inquiries vs adversarial processes would be to allow the defendants criminal record to be admissable in Court.
I suspect the Louis Nicholas jury might have reached a different verdict if they’d know Shipton & whats-his-name were already in prison for a similar group rape in Mt Maunganui. It might be a long-standing legal convention that previous convictions are not admissable, but surely that is material information that speaks directly to the defendant’s behaviour.
If I’d been on the Louis Nicholas jury I think I’d have been sick to my stomach afterwards when it came out that 2 of the 3 defendants had already been found guilty of a virtually identical episode.
Vote:June 13th, 2008 at 9:29 am
“So you are also concerned by the high number of acquittals, then?”
Yeah, thats what I thought too. Palmers quote could be taken both ways.
Vote:June 13th, 2008 at 9:39 am
Having participated in a number of rape trials, I can say that, in my view, the process is certainly not ‘brutalising’, although it is certainly distressing. But the process is distressing because one is dealing with an inherently distressing matter, one of extreme trauma. There will always be distress about making a complaint of rape and no process short of not requiring the complainant to give evidence in Court will change that.
But perhaps the Law Commission would like to simply accept the complainant’s statement as unassailable evidence of the crime?
The so called ‘low rape conviction rate’ is dealt with very well by Baroness Kennedy QC in her book ‘Just Law’, which is based on the British statistics that are a close mirror to our own. Over in the UK, it is estimated that something like less than 5% of the number of estimated rapes end in a conviction. However, what that doesn’t tell you is that only about 10% of the estimated rapes go to trial, so the actual conviction rate in rape trials is just under 50%. A little worse than usual (although not too much) and entirely in keeping with the normal type of evidence, which is usually a ‘she said, he said’ type situation that juries weigh up very carefully.
You may notice my use of the word ‘estimate’ in the preceding paragraph. That is because the numbers that those who want to make obtaining a rape conviction easier (and I fail to see how that could possibly be done) all include an assumed number of unreported rapes, plus the number of rapes that are not prosecuted, and then add them to the number of rape trials ending in acquittal, to get their figures.
The problem with that, of course, is that you then find yourself dealing with unanswerable estimates when trying to have a discussion about the issue. These unanswerable estimates, however, also happen to be unprovable. But they really do make for the conclusion that we have a crisis.
For those who don’t know, the rape complainant does not have to give evidence at depositions. Then, once they get to trial, they cannot be asked about the previous sexual experience, even with the accused person, without leave of the judge. And that leave is very hard to get. Judges keep a very close eye on defence counsel in rape trials. Not that defence counsel want to cause any further harm to a complainant, but you must remember that a person accused of rape is liable to a sentence of between 8 and 15 years in prison in general. That is pretty damn serious. So we suddenly have two competing interest here, both of great seriousness.
I assure you all, no-one takes this process lightly.
The fact is that a man can be put in prison on the word of one person. No other evidence is required. There needs be nothing whatsoever to confirm her account. I have seen it happen, and seen a man I am convinced is innocent go to prison for it. Talk to my colleagues in chambers and you will get a number of stories of a similar nature, where men we are convinced are innocent have gone to prison.
I was talking to a senior detective about this matter just a few weeks ago, and was surprised to be told that at his station, for every 5 rape complaints they get, the Police find they can prosecute one, one is lying, and of the other three there is one who has had ‘regretted consensual sex’ and the other two they just can’t work out what happened and don’t have enough evidence to charge. Now, before you all flame me, I am fully aware that there are quite a number of rape complainants who don’t go to the cops. I know a couple myself who, despite my urging, have done nothing. I certainly do not justify the crime in any way. However, the sad thing is that some women do lie about being raped. It happens more often than you might think. And that is not to take away from the women who have actually been raped. But the mere fact that we are dealing with a very serious matter that can be followed by a very lengthy prison term means that we must approach this subject with a great deal of caution, rather than the reactionary approach being seen at the moment.
That the Law Commission comes out with such views is of no surprise. Most at the defence bar see the Law Commission as a waste of space. But, in my view, we have no other system, anywhere in the world, that makes it easy to properly try such an issue.
Of course, it might be that I can’t see the wood for the trees. So I would be interested if those who agree with the law commission would be willing to make some suggestions as to what they would change in the current system to make the experience easier for the complainant?
Vote:June 13th, 2008 at 9:51 am
I find this entire thing scary! The Police acknowledge there are a lot of false complaints.. they only take about 30% to court??
Let’s go with the womens refuge policy – if they woman says the man did it… then he did it and they shouldn’t have to testify!
Anyway, heres Dime’s tip of the day.
If ya have a one night stand… the next morning while youre laying in bed talkin and laughing and being all happy.. grab your cell phone and take a pic!!!!! just a head shot lol
then, if you give her the flick and she makes a complaint – you have a pic to produce “but officer, she didn’t look too unhappy the next morning”
feel free to thank me by giving me lots of good karma
Vote:June 13th, 2008 at 10:42 am
This is hugely concerning. Anything that dials back beyond reasonable doubt is very very dangerous and an anathema to a free and democratic society.
“He told us that the nature and impact of the trial in sexual cases on complainants is a brutalising and distressing experience in which the complainant is effectively put on trial,” the report said.
Even if you accept this hypothesis the fact is that the complainant IS putting the accused on trial.
I am concerned about the direction that this country is heading in – indeed the world (patriot act). Citizens in free countries seem to constantly look to the state to fix things that are wrong (or perceived wrong) and are happily chucking away freedom for perceived security. I am miles away from being a civil libertarian (I’m a big fan of warrant phone taps for example) but when the Law Commission starts, effectively, attacking beyond reasonable doubt we have to step up and take notice.
Get staffed – I agree in principle about prosecuting false claims and throwing the book (starting point for sexual violation by rape is about 8 years for memory – starting point for false complaint should be 4 years). The problem is that the majority of the false complaints are by mentally unbalanced people. Lengthy prison sentences start to lose their appeal in that context.
Vote:June 13th, 2008 at 10:44 am
FE Smith,
Over the past couple of years I’ve bookmarked stories on false rape complaints (FRC) both here and in the US. These show the rate of FRC could lie somewhere between 15-80% of all rape complaints.
The stories range from a Christchurch cop saying that two of three complaints lodged over a weekend are withdrawn the following week when the woman cools down and admits to anger as the motivator, Hamilton senior investigators claiming that 60-80% of all complaints being bogus and credible US studies showing FRC being up to 50-60%. Then there’s the DNA investigations on US accused showing that 20% could not be the rapist and 20% of the results were inconclusive.
The cops know the score and occasionally vent to the newspapers on the waste of police resources plus the extent of the problem; but these stories disappear down the “memory hole”, ie, there is no national collective memory of these stories.. instead all that is retained is that FRC are rare, because some feminists and activists have told us so.
JC
Vote:June 13th, 2008 at 10:49 am
FE Smith: Your comment of 9:39 – well presented and well reasoned. Thank you.
Vote:June 13th, 2008 at 10:50 am
Making the complainants’s case easer to make IS making it easier to convict.
If you want to make it easier for the complainant, you also have to make it easier for the defendent to defend themselves.
Anyone who thinks these tinkerings will lead to a “fairer” system is deluded. Justice must remain blind, and cold, not romantic and sentimental.
Vote:June 13th, 2008 at 11:10 am
FE Smith, well said.
Vote:Gary Gotlieb vented on the same subject this mornging with Paul Holmes, but without your measured tones.
June 13th, 2008 at 11:14 am
JC: those are frightening statistics. Anybody who needs more on the US situation should read ‘Actual Innocence’ by the founders of the Innocence Project over in the States. They have now been responsible for the release (quick check of innocenceproject.org) of 218 actually innocent men since they started in 1992. Now, the worrying thing is that they only go on DNA exonerations. There are almost certainly many more innocent men in prison who have been convicted on eyewitness account and with no DNA evidence. Even the most well-meaning person can be very wrong in their identification of an offender.
getstaffed: Thanks. Your idea is a good one, but of course if they cops start to prosecute more regularly for false complaints then you run into the problem of being criticised for scaring complainants away, in which case we start again on the endless loop we are currently on.
GPT1: Good post, alhtough I don’t agree that most false complaints are made by mentally unbalanced people. I think a lot of them know exactly what they are doing. The difficulty is, of course, being able to discern both those who are making a false complaint without having an actual confession of lying. Without that admissoin, the plod tend to just drop the case, in which case the naysayers are able to claim it was an unprosecuted rape. Catch 22.
Vote:June 13th, 2008 at 11:33 am
F E Smith – thanks for the posts. I found them really challenging.
Vote:June 13th, 2008 at 11:35 am
Given the proportion of ‘false’ complainants I’d say this could be a good thing. And before I get accused of being soft of rapists, let me say I think they’re animals. In fact I’d lock ‘em up and throw away the key.
Rape ruins lives, but equally, so do false accusations and false imprisonment. We need balance in the application of justice and I see the Law Commissions’ position on this as moving in the wrong direction. Unless of course one is a radical feminist… and believes that all sex is rape. The extent to which the Law Commission is influenced by such beliefs remains an unanswered question for me.
Vote:June 13th, 2008 at 11:52 am
Can I just thank F E Smith for his continual high quality posts on issues around criminal justice. Might not agree on 100% of the issues but they are greatly appreciated.
Vote:June 13th, 2008 at 12:07 pm
I did note the 3 news story about this issue where Sir Geoffry was being interviewed on this matter. To my dismay I noted that the woman with him was non other than our friend Val Sim.
Regular posters should be familiar with her work, especially surrounding the Civic Creche case, and the Crown Law advice re the EFB and it’s implications with regards to the Human Rights act.
Vote:June 13th, 2008 at 12:17 pm
> One simple legal change that is far less dramatic than moving to inquiries vs adversarial processes would be to allow the defendants criminal record to be admissable in Court.
Well, yes, that is possible but only if it is relevant. In the Shipton et al cases, the prior record of Shipton and Schollum could have been admitted because it was similar fact evidence. However, because Rickards was tried in the same trials as the other two, admitting this evidence would’ve prejudiced a fair trial for Rickards. This begs the question: why wasn’t Rickards tried separately? The law wasn’t as fault there – it was the prosecution’s decision to try all three guys together that was the fly in the ointment. Maybe the prosecutor thought the case against Rickards was weak and thought it should be bolstered by prosecuting the other two convicted rapists?
Anyway, in the majority of sex abuse trials, the accused does not have a prior criminal record for sex offences (Source: Suzanne Blackwell, submission to Law Commission, Feb 2008). So even if the prior record of an accused was admitted as evidence, and even if the accused was subsequently convicted, the increase in the overall conviction rate would be small.
Vote:June 13th, 2008 at 12:47 pm
FE Smith,
I actually deliberately understated the report I was alluding to because I still can’t quite believe the mind blowing proportions of it.
The study 10,000 DNA examinations of prime suspects. 2000 were shown to not be semen depositors, 2000 were inconclusive and 6000 matched the accused or *included* the accused.
“They stated, “Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect.”
The authors continued, “these percentages have remained constant for 7 years, and the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate.”
If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources”
http://www.foxnews.com/story/0,2933,194032,00.html
Now, once you get to the stage of a DNA investigation you are well past the “accused in a fit of anger” stage and well into a serious investigation where the woman has maintained her complaint for days or even weeks… so the scary bits are it’s a huge study over 7 years with results consistent over time and in line with private laboratories.
JC
Vote:June 13th, 2008 at 12:57 pm
cheers David.
Vote:June 13th, 2008 at 1:15 pm
Yeah fair enough F E. My mind had turned to the Chch woman who made the false complaint about being attacked in a suburban park a year or two back. Sexual complaints, particularly those that involve questions of consent (as distinct from “strict liability” under 12, under 16) will always be contentious. Police are obliged to take every complaint seriously and yet there are a huge number of false complaints.
(As an aside I was talking to a Detective about this issue and he said that you have to take them seriously. He gave an example of a situation where the situation was such that no-one really believed the story because it sounded so ridiculous but they followed procedure, did their job and it turned out that she was indeed a bona fide victim – and the bad guy was locked up. For memory he denied all knowledge but had, erm, left DNA.)
As you say an over active pursuit of false complaints can have negative impacts in that they can discourage genuine complaints and, quite possibly, discourage recanting of false complaints.
Any charge that comes down to he said, she said is fraught. To make it even easier to convict we risk even more innocent people being locked up. Sexual violation is one of the toughest areas to get convictions but the flip side is that it is also an area that is easy to stigmatise and, in my view, most likely to result in miscarriages of justice (ie: innocent people binned).
Vote:June 13th, 2008 at 2:58 pm
Got it in one, DPF. The Police are not obligated to prosecute on every complaint. If I showed up at the local cop shop and complained that you’d nicked my wallet, they’d want more evidence than the merely circumstantial – that we were seen together having a drink and I was clearly tipsy. In fact they’d probably say that because of that, my memory was unreliable.
The high rate of acquitals actually suggests – much to my surprise, I admit – that the courts may actually be working.
F E Smith says:
Been there. Almost done that. Fortunately the person concerned developed a conscience since several years had been allowed to intervene. Had the Plod decided to ditch speed camera duty for a bit of crime “solving” any earlier, the result may have been very different. When you’ve stared into that particular void you realise how thin is the thread on which “justice” hangs.
There has to be ways of improving this situation – being wrongfully charged with a crime is just as “brutalising and distressing” as being the victim of one, I assure you.
It’s something people would do well to consider when voicing support for the “Sensible” Sentencing Trust and the rest of the “hang ‘em high” brigade.
Vote:June 13th, 2008 at 4:36 pm
Here is an interesting Christchurch example that highlights the difficulty of she said, he said.
http://www.courtnews.co.nz/story.php?id=699
Vote:June 13th, 2008 at 8:18 pm
Are a high acquittal rates is probably reflective of New Zealand as a society that condones violence towards women, particularly in certain subgroups. We share this with Australia to some extent.
Women in New Zealand have easily the highest rate of feeling they have been raped out of industrialised countries.
http://www.nationmaster.com/graph/cri_rap_vic-crime-rape-victims
Note: these are not reported rapes or convicted rapes but survey of female population.
The fact that are conviction rate is so low is simply an indication of structural anti-women attitudes that permeate our society and culture. And there more than enough recent high profile acquittals that illustrate this problem.
Vote:June 13th, 2008 at 8:33 pm
And in other news, gravity is declared mythical and Trotter joins Act
Vote:June 13th, 2008 at 8:34 pm
NPOG: meh. Don’t agree. One could equally argue that a thread here a few months ago in which Nome tried to argue that any form of unwanted sexual attention was rape is indicative of the problem – NZ women see rape where it doesn’t exist. Those surveys are notoriously unreliable, and I don’t believe that NZ as a society condones violence towards women.
The conviction rate is so low because of the nature of the crime, and the fact that evidence often comes down to one person’s word against another. I see no evidence that there is some bias in the police or the judiciary that results in convictions not being made where they should be – in fact I see evidence to the contrary, where people are convicted for whom I would have thought there was reasonable doubt.
Vote:June 13th, 2008 at 8:39 pm
Paul, the methodology of the survey used was exactly the same for all countries. It is a fact that when this same standardised survey was used more women in New Zealand believed they have been raped than in any other country.
Your response is that this is a problem of New Zealand women, I suspect that this is more likely a problem with an unacceptable high number of New Zealand men and the general refusal of New Zealand society to confront the issue.
Vote:June 13th, 2008 at 8:55 pm
Perhaps. But you have to agree that either are possible, and that you have no idea which. The real answer is probably a bit of both. But you speak with such conviction, and that level of conviction always worries me. Reminds me of Nome, who on the thread I mention spoke with the same level of conviction, but when he showed us his links, they were fruitcake stuff.
Vote:June 14th, 2008 at 12:14 am
As usual, it is often the easy targets, who are not the real problem, that get caught when people like NPOG go on their crusade to change society.
Vote:June 14th, 2008 at 1:22 am
So who are the easy targets and who the real problem?
Vote:October 11th, 2008 at 11:49 pm
“GPT1 (569)
Here is an interesting Christchurch example that highlights the difficulty of she said, he said.
http://www.courtnews.co.nz/story.php?id=699”
It seems we have to re-teach everyone the parametres of rape.
A verbal ‘yes’ that has not been coerced from a person of sound mental state (this means people on alcohol and drugs are to be avoided) is LEGALLY needed for it to be consentual sex. This means, threat of violence, apparent threat of violence, intimidation, threat of alienation are all coercive techniques. Pestering a person til they give in and have sex with you, telling a person they’d have sex with you if they really loved you, or saying things like you won’t love them if they don’t, all constitute coercive acts to obtain sex. Not hearing a ‘no’ does not mean it is consent. Changing the agreed upon sex act without asking your partner, not stopping if they ask you to = rape.
Thinking that a 16 year old girl can reasonably give consent for three police officers to put an inanimate object inside her vagina, and then referring to the rape case as ‘the police sex scandal’ is evidence of how much this country normalises and condones abuse of women. The fact that the majority of you do not understand what constitutes rape does not mean the acquittal was made through sound reasoning.
As for the rate of PROVEN false rape reports – it’s about 2% which is no different from the percentage of other false crime reports. You cannot count retractions, lack of conviction or lack of push for criminal proceedings as ‘evidence’ of a false report.
Vote: