Kiss by Martino’s Doodles on Flickr

It’s late 2011. Two senior offices from the UK’s largest police force are attempting to explain, in a long and rambling report, why more suspected rapists aren’t being charged.

The officers, part of a specialist sexual offences unit within the Metropolitan Police, London’s police force, had been tasked with exploring why more people in the capital were reporting rape but the number of suspects being charged was falling. The explanation, the officers concluded, lay with the victims and the quality of their evidence.

The problem, they reported, was that most rape allegations were made by people in circumstances that could compromise their evidence in court. Victims were frequently young, had mental-health problems, had histories of domestic violence and had used drugs or alcohol before the attack—and these ‘vulnerabilities’ meant their cases were likely to drop out of the criminal justice system long before they reached court: ‘The number of cases where victims have multiple vulnerabilities in their lives is 87%, making them and their evidence less robust when scrutinised in the light of court processes.’

This claim was reiterated several times in the report. Yet its 10 ‘action plan’ points did not include any on how to address allegations by vulnerable people—perhaps through training or a change in investigative approach. The impression left was of an intractable problem which, by ‘diluting focus’, drew attention away from cases with a better chance of ending in conviction.

One woman’s story

Fast forward 18 months to March 2013. A young woman, ‘Beth’, is deciding what to do about her sister, ‘Ella’, who has just revealed that she was raped the evening before by a man who had befriended her. Distressed and complaining of abdominal pain, she needs help. Not knowing where else to go, Beth drives her sister to the accident-and-emergency (A&E) department at King’s College Hospital in south London.

A&E and the Haven, a specialist unit for victims of rape and sexual assault, are just a few minutes’ walk apart on the sprawling King’s campus. On arrival, Beth and Ella are surrounded by professionals who know the Haven is around the corner. Staff working in the unit are specially trained to carry out forensic examinations and to provide everything else that Ella might need, from emergency contraception to counselling to setting up an informal meeting with a police officer.

But for Ella and Beth it might as well be in Australia. They never get near the place. A&E staff liaise with the Haven but King’s protocols demand they wait for hours. Meantime, a doctor suggests Beth might call the police, which she does. She isn’t told that this will mean that Ella loses the option to refer herself to the Haven.

Ella receives a cursory examination before the pair are taken to a police station, where they have a further long wait. After interview, officers decide that Ella has not been raped and send her home.

After spending some 12 hours with NHS staff and police, Ella has not received an internal examination. No arrangement has been made for sexually-transmitted-disease screening and neither has any specialist support been offered.

Ella is extremely distressed by the rape and washes herself obsessively. ‘The failure to refer had a huge impact on my sister who had already been through an awful ordeal, as well as on her family and myself, because we had to deal with the impact on her,’ said Beth.

The Haven said it could not comment on the details of the case but where police were called referral became their responsibility: ‘When someone who has been raped or sexually assaulted attends our emergency department, our clinical teams must carry out medical assessments to ensure that they do not need ongoing care in the acute hospital. They are triaged as quickly as possible and offered the option to speak to the police. If they do want to talk to the police, the police then take the lead on collection of forensic evidence and referral to the Haven.’

One factor played a crucial role in how Ella was treated: she has learning difficulties and autism. With the help of her sister, Ella managed to give a clear account to the A&E doctor of what had happened, including a detailed account of oral and vaginal rape. But after leaving King’s she was interviewed alone by police, who decided that she had only had oral sex—although even if Ella had only been orally raped, she should still have qualified for a Haven referral.

Beth’s view is that her sister’s difficulty in communicating meant she should have been given a thorough examination as a precaution: ‘Given that she had said something different while in the hospital … the police should not have treated what she said in the interview as set in stone.’ Beth said she had later been told by the police that when the man her sister had accused was interviewed he had admitted to having sex but claimed it had been consensual—so the police had decided to take no further action.

Officers had told her they couldn’t put Ella, as a vulnerable person, through the courts. Yet they had not assessed Ella’s capacity before interviewing her or arranged for her to be supported during the interview. ‘It really does cause me great upset when I look back at the complete faith I had in all services involved,’ Beth said.

The Metropolitan Police refused to discuss the case, although it did contact Beth to discuss her concerns.

Rape of most vulnerable ‘effectively decriminalised’

Despite soaring reports of rape in England and Wales over the past decade, detections, prosecutions and convictions have not kept pace and attrition—the rate at which cases drop out of the system—has gone from bad to worse. Only around 15% of rapes recorded by police as crimes in 2012-13 resulted in rape charges being brought against a suspect. Around 20% were dropped after being sent to the Crown Prosecution Service for a decision on charging. But the highest attrition occurred while cases were still under the control of the police: two-thirds of rape complaints dropped out of the criminal-justice system before they were even sent to prosecutors, even though in most cases the alleged rapist was known.

Now an academic turned senior civil servant, who has been studying rape for a decade inside the Met, is calling for radical change to the way rape is investigated across all UK forces. Professor Betsy Stanko, the Met’s assistant director of planning and portfolio, says detectives’ focus on proving lack of consent means the rape of some women, such as those with learning difficulties, has effectively been decriminalised.

This is because detectives concentrate on the victim’s credibility, which is seen as vital to proving whether there was consent to sex. The professor wants police to focus instead on whether and how suspects exploited their victims’ vulnerability.

Despite the furore over the scale of sex abuses perpetrated by the former BBC presenter Jimmy Savile, which highlighted the tendency of the police to discount complaints of sexual assault when they came from the most vulnerable, Stanko believes police have not fundamentally changed their approach to rape investigation. She contends that it is because policy and legal reforms have focused on consent, rather than exploitation, that such a high proportion of rape cases still drop out of the justice system before trial.

I have obtained a document, An Overview of Sexual Violence, produced by the Met’s evidence and performance unit in 2013, which showed how various factors influenced the chances of police dropping rape cases. Around 13% were dropped because officers initially recorded a rape but then decided no crime had occurred. Shockingly, cases were more likely to be classified as ‘no crimes’ if victims did not understand the concept of consent than if there was evidence casting doubt over whether the offence had taken place at all. And where police accepted a crime had occurred, cases were less likely to be referred to prosecutors if the victim lacked understanding of consent.

The analysis drew on 687 rape allegations made to the Metropolitan police during two months in 2012. Stanko’s team have examined allegations made during April and May each year for more than eight years.

The professor, who is soon to join the London Mayor’s Office for Policing and Crime, is preparing research for publication focusing on the 2012 data. She has shared some early findings.

Her research, which will be discussed at the London School of Economics on March 11, found police were more likely to find that a crime had not occurred when victims had learning difficulties or mental-health problems. Those with learning difficulties were 67% less likely to have their case referred for prosecution than those without and mental illness reduced the chances of referral by 40%. ‘These women face almost unsurmountable obstacles to justice. Their rape is highly unlikely to carry a sanction and, in that sense, it is decriminalised,’ Stanko said.

Alcohol consumption before the attack reduced the chances of referral to prosecutors by 45%, as did a history of consensual sex with the suspect. ‘If a victim has mental-health problems or is in a current relationship with the suspect then the most likely outcome is that the case will be dropped,’ she added. ‘Victim vulnerabilities effectively protect suspects from being perceived as credible rapists.’

Stanko’s findings are similar to those of other studies on police decision-making in the UK and US.

A paper from the University of Bristol, published last year, tracked rape cases in three police forces in the north-east of England. It found only around a third of cases where the victim had mental-health problems resulted in arrest, compared with half of those where no such issues were recorded. And recent research from Arizona State University in the US found that police were less likely to arrest suspects, once they had been identified, if the victims had a history of drug use, particularly in the context of prostitution. ‘The language of officers suggested [these] were not seen as genuine victims,’ the paper says.

More than 80% of victims in Stanko’s sample had characteristics that left them vulnerable to sexual attack. She joined the Met in 2003 from an academic post at Royal Holloway, University of London. Initially at the request of the then commissioner, Sir Ian Blair, she began researching the force’s handling of rape allegations.

Most of this research has not been published. It included a report that was toned down by the former candidate for London Mayor Brian Paddick when he worked at the Met.

‘The profile of victims reporting rape in London hasn’t significantly changed in eight years,’ Stanko said. Around a third were under 18, the vast majority knew the suspect and between a quarter and a fifth were or had been in an intimate relationship with their assailant. Most attacks took place in a private home and the victim had drunk alcohol or taken other drugs in around a third of cases. Around 18% had mental-health problems, she said.

Recognition of exploitation key to reform

Stanko recognises that attempts have been made to change and that more allegations of rape are being investigated, rather than dismissed before they even get recorded as a crime. But she said that they just dropped out further into the process.

There were issues of resources and burn-out in this extremely difficult area of policing, she conceded. But for Stanko the only way to change the statistics fundamentally was to address the issue of vulnerability: ‘The overwhelming majority of rapes still go unreported. But we are not learning from those allegations that do reach the police.’

The note of resignation running through the Met officers’ report of 2011—vulnerable victims do not make good witnesses, so there is nothing to be done—was replicated throughout the criminal justice system, across the country: ‘The debate, policies and law reforms continue to address issues of consent—the legal line separating sex from rape. Exploitation is seldom recognised, though it is critical to how rape happens.’

Recognition of this exploitation had to be at the heart of any reform, Stanko said. Anything else would just be ‘tinkering around the edges’.

This piece was written for OpenDemocracy.net