What can we learn from other countries when it comes to rape convictions?

The UK has a problem with convicting perpetrators of rape. From 2016 to 2017 there were 41,150 rapes reported to the police in England and Wales, according to the Crown Prosecution Service. Of those reported, 5,190 cases went to court and 2,991 resulted in a conviction. And that doesn't include the thousands of cases that are said to go unreported each year. 

Now, the Metropolitan police has announced it will review all live rape and sex abuse investigations after two trials collapsed in less than a week following claims that police had failed to disclose relevant evidence. The incident highlighted the complex and uniquely sensitive nature of rape cases. And also shone a light on a criminal justice system that needs to improve how it handles sexual assault. 

But it isn't just the UK that has a problem. Looking internationally, the picture hardly improves. "No country is doing well on rape. It's a really interesting lightning rod in terms of how far gender equality has progressed - or not," says Professor Liz Kelly, director of the Child and Woman Abuse Studies Unit at London Metropolitan University. "But there are certainly some countries that do better in terms of how the investigation happens, the seriousness of how reports are dealt with and conviction rates." 

Here are the different ways other countries approach rape cases - and things our system could look at? 

Rethink the definition of rape

The UK has a narrow definition of rape: penetration by a penis without consent. Rape trials rarely focus on who perpetrated the crime or if the penetration happen. They are more often a discussion of whether the act was consensual. This is problematic, experts say. 

"The legal definitions of what behaviour or actions constitute rape and sexual assault are quite clear, but the definition of consent is less so," says Dr Hannah Bows, senior lecturer in criminology at Teesside University. "There remains a lot of confusion across society about what consent means. We need to rethink our definition of consent to address the current misunderstandings around what consent is." 

The prosecution must prove that consent was absent and that the defendant lacks reasonable belief in the consent. "It's very difficult to prove beyond reasonable doubt that someone knew for certain there was absolutely no consent," says Dr Bows. "Rape myths are a problem here as it is assumed people will very vocally say ‘no’ and / or will physically fight to get away. We know in most cases victims don’t react like that, so it becomes a weapon for the defence to play into the myth that victims will react in particular ways." 

Nick Timothy comment - rape cases

Other countries have a different understanding of the crime and consent, which informs the way it is treated in the criminal justice system. Sweden, for example, has been criticised for having one of the highest rates of reported rape, even though it is often celebrated for having an advanced understanding of gender rights. There, rape includes penetration without consent, as well as other sexual offences.

"The Nordic countries tend to have a higher conviction rate than us, partly because of how they prosecute rape," says Dr Bows. "They have broader definitions or rape." 

Sweden is today voting on a change to its rape law, backed by its prime minister, that will shift the burden of proof to the defendant. The change would require explicit consent to be given before any sexual contact occurs. Alleged attackers will need to prove they obtained this.

Have an investigative legal system, instead of an adversarial one

In the UK's adversarial legal system, the jury is presented with two opposing narratives and asked to choose the one they think is most accurate. This results in the prosecution having to prove the complainant didn’t consent to intercourse and that the defendant lacked reasonable belief in consent. This often sees victims being interrogated during cross examination by the defence which rely on rape myths and stereotypes to malign the victim and discredit them.

"One of the major problems with the adversarial system here is that the telling of the story in rape cases focuses on the credibility of the victim and various myths are used to malign them," says Dr Bows. "Sexual history is still used a lot even though law changes say it should only be introduced in limited circumstances and with prior agreement by the Judge." 

Investigative legal systems, in which a judge directs the proceedings and decides guilt, are used across Europe and are less likely to result in victims being attacked and their story questioned. "Institutional practices should treat victims properly and believe them rather than have them under suspicion," says Dr Bows. "We have a culture of disbelief within our criminal justice system, which becomes one of the key tactics by the defence."

Prof Kelly found in a 2010 study of EU member states that investigative legal systems have a higher success when it comes to convicting people in rape cases. This is because of the judge's more nuanced investigation and an institutional shift towards analysis rather than right or wrong.

"More cases are prosecuted and more result in a conviction, because the way the investigation happens is different," she says. 

Shift power from the police to the judiciary 

The majority of rape cases reported to police in England and Wales are given a "no action", which means the police don't investigate or charge an alleged attacker. 

"One of the biggest problems with getting a conviction is that so many cases drop out at the first stage, when police decide to no further action it," says Dr Bows. "The police will sometimes make an initial judgement about the case and no further action it based on perceptions of the victim’s credibility and/or the way they explain what happened to them. This leads back to stereotypes that victims will remember details and report immediately."

The rape conviction rate has halved in six years

Research has shown that victims do not behave in a stereotypical manner and rape cases do not all conform to presupposed notions of the "stranger-in-the-night attacker". But police practices haven't updated to reflect this changed understanding, Dr Bows says. 

In France and Germany all cases that are reported to the police must be passed to the prosecuting authority, or the equivalent of the Crown Prosecution Service. The police do not have the power to prevent an investigation into a case, unlike in the UK. This means that all reports of rape are given due process and time. 

Challenge 'rape-myths'

Sexual history often feeds into jurors' prejudices in the UK, as does whether the victim has been drinking or messaging the alleged perpetrator. But most rape occurs in familiar situations and victims are more likely to know their attacker than not. This means it is not unheard of for them to have been drinking or to have spoken with the perpetrator before. 

"Rape cases pretty much everywhere reflect the level of sexism and misogyny in that society," says Prof Kelly. "Any woman who is sexually active or has been drinking beforehand is deemed suspect. Those facts are seen to make her account less credible.

"If these facts of everyday life are invalidations of a complaint of rape then we’re not investigating a crime, we’re investigating whether someone fits the stereotype of a good victim." 

6 rape myths which need busting. Badly

Nordic countries have been praised for having forward-thinking ideas about gender and what rape means. Australia has also been lauded for its national action plan to address sexual and gender-based violence, as well as perceptions of women within society. 

Open discussions about gender stereotypes and rape myths have helped these countries inform the way sexual violence is policed and understood in society. 

Offer free legal assistance

The UK provides alleged rape victims with access to an advocate who can help guide them through the process of reporting a case and going to trial. But these advocates aren't always legally trained. Across Europe, those who have reported a rape are provided with free help from a qualified lawyer. 

"In a number of European countries, victims have a right to legal advice and are allocated a lawyer who moves through the process with them," says Prof Kelly. "We have independent sexual violence advocates, but they're not legally trained and they can't do what these lawyers in Finland, Norway and Germany can." 

In these countries, the legal advocates help victims claim compensation at the end of proceedings, which are paid by the perpetrator as reparations and recognition of harm.