Last month Britain’s favourite tax barrister, Jolyon Maugham QC, suggested in an article in the New Statesman that juries ought to be abolished for rape trials. I had meant to reply to him much earlier, but did not have the time to do so until now.
As he is in some ways a stickler for accuracy I should quote him:
“These few hundred words are not the place to remake the system by which rape is deterred. But we might start by asking, as Julie Bindel has urged, whether trial by jury serves the public interest in rape cases.”
I don’t think he is quite advocating the abolition of juries for rape cases, but he is certainly suggesting that it is something that should be discussed. Indeed, trial by jury, he says, is the place to start.
He was immediately criticised by some criminal lawyers for stepping outside his area of expertise. Not by me though; not least because my limited expertise as a criminal lawyer has never stopped me offering my thoughts on any number of other subjects, some of which are only vaguely related to the law (I can’t help you with tax avoidance though). Mr Maugham’s insights into what is undoubtedly a thorny area should be entirely welcome.
I hope he won’t object – though I fear he may – if I try to summarise his argument a little further.
Mr Maugham bolsters his arguments with lots of statistics but that is the thrust of his few hundred words. “The status quo,” he thunders, splendidly unafraid of cliché, “is not an option.” One of the few other options that he does hint at is that we should be less squeamish about convicting the innocent:
“It is not good enough for us to repeat the saying that it is better for ten guilty men to escape than one innocent man to suffer.”
Since his argument rests heavily on statistics it is rather unfortunate that he has been careless with them.
“What is the truth?” he asks, before telling us:
“Every year there is a Crime Survey for England and Wales. It gives a “better reflection of the true extent of crime… than police recorded statistics”, according to the Office for National Statistics. The Survey for 2017, published only a week ago, reported almost 51,833 offences of rape and 93,564 other sexual offences in 2017 alone. And these figures exclude the rape or sexual assault of children under the age of 16.”
Except this isn’t the truth. It’s a mish-mash of figures that Mr Maugham hasn’t looked at properly, or at least hasn’t understood. He is certainly right that the Crime Survey is regarded as a better reflection of the true extent of crime than police statistics. Unfortunately, the figures he quotes (including the imprecisely precise “almost 51,833”) are in fact police figures for reported sexual offences, not CSEW figures at all (see Appendix Table A4 in the linked document). Nor are they a reflection of “sexual offences in 2017 alone” for they include a large number of historic cases only reported to the police in 2017. As the rather dry language of the ONS puts it:
For a subset of forces providing data to the Home Office Data Hub, 26% of sexual offences recorded by the police in the year ending December 2017 were non-recent offences (those that took place more than 12 months before being recorded by the police).
Nor, as he asserts, do they exclude figures for the reported rape or sexual assault of children; they include 15,683 such rapes, and at least 36,000 sexual offences against children, and probably many more (although the way the statistics are collated makes it difficult or impossible to be more precise).
Back to Mr Maugham, and what he says is “the truth.”
In 2013, an overview of sexual offending conducted by the Ministry of Justice, the Home Office and the ONS, and using Crime Survey data, concluded that although there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.
This is an extraordinary thing. Based on the above figures, a person who is raped has between a 1.1 and 1.8 per cent prospect of seeing their rapist convicted.
This is, at best, a half truth. The 2013 report was based on figures from 2009 – 2012. Perhaps we shouldn’t worry too much about the somewhat slippery elision between past and present tense. More important is that Mr Maugham has presented the statistics, which are indeed drawn from the report, in the most alarming way without paying any attention to the warning prominently displayed in the 2013 report itself:
“… one method of calculating rape conviction rates often used by commentators shows the number of people convicted of rape as a proportion of all rape crimes recorded. Given the different currencies of the two number[s] and the effect of downgrading of offences through the CJS mentioned above, this method is incorrect and misleading in terms of presenting evidence on convictions for rape.”
Presenting statistics in this way is not “the truth” at all, it is “incorrect and misleading.”
Now it would be fun to continue to scold Mr Maugham for sloppy use of statistics and general carelessness, but that would be to miss the point. He would then probably accuse me, as he regularly accuses people, of “failing to engage with the argument.”
And in a way he would be right. Although he is careless in the figures he cites, had he picked the latest CSEW statistics (as he thought he was doing) his argument might even have been strengthened; the Survey always estimates more offences than the police figures, for any type of offence including sexual offences, because many offences are never reported to the police.
He does make one startling assertion which actually is based on the CSEW figures, although for a different period (y/e March 2017):
“A full fifth of women have been sexually assaulted since turning 16.”
It is certainly a very depressing statistic but we need to interpret it with a little caution, and it turns out not to mean quite what it appears.
According to the CSEW estimate (it’s Appendix Table 1 if you follow the link), 20.3% of women aged 16 – 59 have experienced “sexual assault” since they were 16. That was the origin of Mr Maugham’s “a full fifth of women have been sexually assaulted since turning 16.” We can leave on one side the small and rather picky observation that the figure includes “attempted” sexual assaults, which are not, by definition, sexual assaults. The more important point is that the CSEW definition of “sexual assault” includes “indecent exposure and unwanted touching.” Whilst 6.4% of women are estimated to have been victims of “rape or assault by penetration (including attempts)” a much higher proportion (19.2%) had been the victim of “indecent exposure or unwanted touching.” Indecent exposure is not an assault at all (although of course it may often be very frightening). As for “unwanted touching,” the actual question asked by the CSEW is this:
Since you were 16 has anyone ever touched you in a sexual way (eg touching, grabbing, kissing or fondling), when you did not want it?
Being kissed or touched “when you did not want it,” or unwanted touching, is not the same as being sexually assaulted. Sexual assault in law requires the absence of consent, an ingredient which is not required by the CSEW (although confusingly it is required for police recording purposes). Only by using this broad definition of sexual assault and then lumping “sexual assaults” together with indecent exposure do we reach the “full fifth of women have experienced sexual assault.”
Now whether the figure for sexual assaults is 6.00%, or 20%, or somewhere in between, it is, of course, far too high. We can all agree that it needs to be reduced, preferably to zero. But we should at least start with as accurate a picture as we can get.
As I want to stress, Mr Maugham has not deliberately picked the most alarming statistics. He has just got confused amidst the swirl of figures from different sources, and in doing so he has actually missed the CSEW figures which suggest an even higher number of rapes than his “almost 51,833.”
So, what does the CSEW actually say about the level of sex crimes?
There are no figures yet for the whole of 2017. For the latest we have to go back to March 2017.
In the 12 months to March 2017 the CSEW estimate for the number of sexual assaults on women was between 447,000 and 573,000 and for rapes or assault by penetration on women it was between 110,000 and 178,000, with an estimate of 144,000 . These figures do exclude children under 16 (and also adults of 60 or over), and they are hardly reassuring: indeed they suggest a level of rape and serious sexual assault far higher than the police figures Mr Maugham erroneously attributed to the CSEW, although as they do not distinguish between “rape” and “assault by penetration” the estimate of the actual numbers of rapes is rather vague. Are there twice as many assaults by penetration as rapes? Or three times as many rapes as assaults by penetration? Perhaps it doesn’t really matter, and your guess is as good as mine and quite possibly rather better than Mr Maugham’s.
One of the main reasons for the difference in the figures is that most sexual offences are never reported. In fact most crime of all types is never reported (the overall reporting rate is estimated by the CSEW at about 40%). The reporting rate for sexual offences is, however, particularly low: just 17% of respondents to the CSEW who said that they had been the victims of rape or assault by penetration said that they had reported it to the police, against an average reporting rate of 42% for all crime. (Only the reporting of some types of theft are lower. Virtually nobody, it seems, reports street thefts, for example).
The reasons given by the 83% from the CSEW sample who did not report rape or assault by penetration to the police varied enormously. The actual sample of “non-reporters” for 2016/17 was small (just 321 people, almost all women), but the same reasons have consistently been given over the years.
“Embarrassment” was the reason given most often, 47%, followed by nearly 40% who “didn’t think the police could help.”
“Not wanting to go to court” was given as a reason for not reporting by only 21%, only just above a surprising 19% who thought that the matter was “too trivial” to report, and 10% that it was a private matter or “none of the police’s business.” Another 8.8% didn’t want the perpetrator to be punished. Presumably there was some overlap here with the 18% of victims of rape or assault by penetration who believed that what had happened to them was either “wrong, but not a crime” or the 8% who took the phlegmatic attitude that it was “just something that happens;” perhaps Germaine Greer was amongst them.
I’m not quite sure what all this tells us, and as we have seen it’s very easy to over-interpret, or wrongly interpret, the results of a survey like this. Nevertheless, it does not provide particularly strong evidence that having to face a jury is putting people off making complaints of rape.
Unexpectedly perhaps, and contrary to the widespread belief amongst the general public and victims of sexual assault, when rapes were reported the police did not demonstrate “a culture of disrespect, disbelief and disregard towards rape victims” as, for example, the feminist commentator Julie Bindel (cited approvingly by Mr Maugham) and others have long argued; indeed the assumption that the police will be sceptical and insensitive is so often asserted that it might almost be considered a rape myth. Yet according to the CSEW, 75% of those who did report the crime to the police found them on first contact either “very” or “fairly” helpful, with only 13% finding them “not at all helpful.” The numbers finding the police helpful “during the investigation” fell a little, but only to 62%.
Moreover, the number of sexual offences reported has been increasing dramatically in recent years. The 2013 report to which Mr Maugham makes reference was written on the basis of figures collated between 2009 and 2012. In October 2012 Operation Yewtree was launched. This is what has happened to reports of sexual offences since.
Anyway, although Mr Maugham is wrong about some of the figures he quotes, and ignores hugely significant changes since 2012, there is still no question that women who have been sexually assaulted are much less likely to report the crime than those who have been the victim of other crimes. What is to be done about that?
I would suggest that before looking at the institution of jury trial it might make sense to look at what the statistics suggest are far more significant issues.
The avoidance of embarrassment is a remarkably strong human motivation. In a different context, embarrassment is the main reason why women do not attend for cervical smear tests, and it is a potent reason why men are sometimes willing to risk an early death rather than undergo embarrassing tests for prostate cancer. Reporting a rape is likely to be of an entirely different order of difficulty. “Embarrassment” doesn’t really do it justice. As Dame Elish Angiolini’s 2015 Review into the investigation and prosecution of rape in London noted:
“There was a perception that the word ‘rape’ carries a stigma that other types of personal violence, such as being mugged, do not share. One victim described society’s attitude towards rape as ‘negative’. She had not reported being a victim for fear of the potentially adverse impact on her life. Others suggested that rape is ‘taboo’, a view expounded upon by a woman who was the victim of an archetypal serial stranger rapist. In a letter to the review she explained,
‘Even some friends and family found it extremely diffcult to deal with me after it happened and I was shocked by the ignorance and insensitivity I encountered. I realised that rape is still a very misunderstood crime and, because it is such a taboo subject that people prefer not to think or talk about, it became and remains my ‘dirty, little secret’. The fact that a victim accepts anonymity – something I did not for myself but to protect other members of my family – just adds to that sense of secrecy and hidden shame.’
And of course these difficulties are massively exacerbated if reporting a rape is going to have an explosive effect on the victim’s personal life, as it well might. Again, Angiolini’s report is worth quoting:
“Complainants who had experienced sexual abuse from their partner or husband described additional barriers to reporting such as feeling unsafe, trapped in the relationship and not having the economic and emotional resources to deal with their situation. … One victim from a minority ethnic background told the review that since reporting rape to the police, she is regarded by her sister as the wrongdoer and of bringing shame on the community, something regarded as worse than the rape. In her family’s opinion she should have forgiven the perpetrator and kept silent. The review also heard that some communities do not recognise the concept of a woman’s right
to withhold consent to sex within marriage.”
“Embarrassment” fails to describe the complex set of reasons why reporting a rape might be perceived by a victim as worse than keeping silent. The law does some important things to alleviate it, and no doubt it could do more: complainants are anonymous, whatever the outcome of their complaint, for example (although that very anonymity rule might also contribute to a more general perception that being raped is something that should be kept as a secret). NHS sexual offence referral centres (“Havens”) in London and other cities have supported rape victims. There is an absolute imperative that police officers should be properly trained, sensitive and non-judgemental. But there is, I am afraid, no way of altogether removing the embarrassment of the intimate examinations, swab taking, photographing and other invasive but essential components of evidence gathering. Nor is there any alternative to telling someone what has happened,which many people are always going to find difficult and others, perhaps, too hideously embarrassing (for want of a better word), to talk about. Nor can there be any guarantee that your account will be believed, because sometimes accounts of rape are false.
I do not have any simple solution to the problem that many women who have been raped feel unable to report it to the police. But there is little evidence that it has to do with rules of evidence or courtroom procedure or trial by jury.
A close second given as the reason for not reporting is the belief that “the police won’t be able to help.” This seems to be a widely held view, indeed it is almost an orthodoxy amongst some. Yet again, it isn’t true. As we have seen a clear majority of those in the CSEW sample who actually complained found that the police did help.
There is no need for the police to be ordered to believe every complaint. All that is required is that every complaint leads to a fair, sensitive and open-minded investigation. We are unlikely ever to reach a situation where every complainant will find every police investigation “helpful,” and nor should we expect that outcome. sometimes the police will bungle it, sometimes the complainant may have unduly high expectations of what the police are able to do, and sometimes the complaint may turn out not to be true. But it is entirely counter-productive to make the lazy assumption that the police who investigate sex complaints are necessarily going to be “Life on Mars” sexist Neanderthals, or indeed credulous fools. My own experience (for what little it is worth) is that most officers investigating serious sexual offences are sympathetic, fair, and determined to try to do their jobs properly.
What of the 21% who gave “not wanting to go to court” as a reason for not reporting? We don’t actually know what it is about the prospect of going to court that deters them. There are lots of reasons for not wanting to go to court: speaking in public, inconvenience, further embarrassment, spinning out a horrible experience over months or years, fear of being disbelieved, fear of cross-examination. All these are inherent in an adversarial (or even an inquisitorial) legal system. We can mitigate them, and have done a great deal to do so in recent years: complainants in sex cases are almost always interviewed in a calm and relatively informal way on video by police officers, and those interviews are almost always used as the primary evidence at trial. Although some choose to go into the witness box, they are entitled to be cross-examined by video link, avoiding the need to go into the court room at all. Evidence about “sexual history” is only allowed in a small minority of cases where to exclude it would make the trial unfair; a generalised inquisition on a complainant’s sex life is completely forbidden. Witnesses considered vulnerable (perhaps because of learning difficulties or mental health problems) may be given “intermediaries” to help them communicate better. If these facts were better known, it might be that fewer than 21% would find the prospect of court a deterrent.
What about the “attrition” rate after a complaint is made?
It is another huge subject, largely beyond the scope of this blog, but there are innumerable reasons why a complaint to the police does not result in an arrest, a charge or a conviction. 22 of them were set out by Professor Phil Rumney, a Bristol criminologist specialising in the study of sexual offending. I can’t do better than the repeat them here. His point is that attrition “is not all about criminal justice system failure.”
Prof Rumney’s list was not contained in an academic article and he certainly does not claim that it is comprehensive. 21 and 22 are really the same, and he misses out (for example) the situation in which the judge stops the trial at the end of the prosecution case because the evidence, even if accepted in full, fails to prove an essential element of the offence. The point is that there are innumerable, often good, reasons why a rape allegation may not lead to a conviction. In some cases the complainant may not “get justice” but in others “justice” means that the suspect is not charged or is acquitted.
But let’s go back to Mr Maugham’s article. It is a cry of rage against a justice system that he says “allows men to rape with impunity.” Towards the end of it he hints at some solutions, none of which actually directly address the biggest issue which is “why are women are generally reluctant to report sexual assaults?” His focus zooms in on the legal system in general and trial by jury in particular.
“… the system is a pyramid – and at its apex sits criminal trials. The consequence of a criminal law that operates to convict only in cases with very particular features is entirely predictable. The infrastructure around that law will bend itself only to the task of finding cases with those features.”
Mr Maugham is very good on denunciations, he is less sound on evidence to back them up. He produces no evidence that the outcome of trials follows from “preconceived ideas of how women should behave or the correct response to sexual threat.” He seems to be blaming the criminal law, but how exactly? It is all rather mysterious. What does he mean by a law that “operates to convict only in cases with very particular features”? What these “very particular features” might be we can only guess at. A recent complaint? Certainly not; many, many cases are not reported until decades later and they often end in conviction. Corroboration? No, that requirement (which was in fact never an absolute legal necessity) was abolished more than 20 years ago. Does he mean that juries won’t convict unless the complainant was sober, or a “stranger,” or attacked in the street, or suffered physical injuries? If so he is talking nonsense, as a week spent in any Crown Court would make clear. Hardly any cases conform to that stereotype, yet juries convict quite readily anyway.
Should the burden of proof be shifted, so that an absence of consent is presumed unless the defendant can prove the contrary? Such a radical idea is not as unthinkable as it may sound and has been made for example, by the New Zealand Labour Party’s sexual violence spokesperson Poto Williams; but if Mr Maugham supports the idea he has not articulated it. A more subtle, but still very fundamental, change in the law has been floated by Simon Myerson QC who has suggested a new and less serious offence of “taking sexual advantage” where actual consent would no longer be relevant and a defendant could be guilty where he failed to take reasonable steps to ensure that consent was voluntary and informed. We don’t know whether that is something Mr Maugham would support.
The only actual suggestion he comes up with is to take a leaf out of Julie Bindel’s book, or rather her Guardian article:
“… we might start by asking, as Julie Bindel has urged, whether trial by jury serves the public interest in rape cases. The outcome of trials must follow from the evidence rather than preconceived ideas of how women “should” behave or the “correct” response to sexual threat.”
Ms Bindel approaches the problem from a very radical angle indeed. In 2006, writing about a case in which a young woman who had complained of rape was instead cautioned for perverting the course of justice, she said that if more such cases occurred:
“… we may as well forget about the criminal justice system and train groups of vigilantes to exact revenge and, hopefully, deter attacks.”
It’s unlikely that Mr Maugham, a respected Queen’s Counsel, is supporting special training for revenge-exacting vigilantes. I suppose if we are to have such a reform it would be as well for the vigilantes to be trained to be free of all prejudices. But it is more likely that he has in mind Ms Bindel’s more “moderate” suggestion that juries should be replaced by “specially trained judges.”
It is still an appalling idea, and one that does not even address (or as Mr Maugham would put it “engage with”) the problem that he has himself outlined. If he really does support it – he has been rather coy and can be hard to pin down – it would confirm the suspicions of some that his egalitarianism conceals an unattractive elitism.
It would mean a dagger to the heart of trial by jury. If juries were no longer trusted for rape cases, then it would make no sense for them to be trusted in any sex cases. Although there do not seem to be any reliable statistics for what proportion of jury trials concern sexual allegations, my guess is that it is well over 30%. Once juries go in sex cases, it would make no sense to keep them in large fraud cases: after all if untrained people are not trusted to make judgements on matters of sexual behaviour, why should they be trusted to make judgements on accountancy or business practice? And many homicide cases depend on complex scientific or medical evidence; in fact expert evidence is a regular feature of cases of every kind, why should we trust the uneducated to decide such questions? At the other end of the scale governments of both colours have been keen to chip away at the right to jury trial for minor thefts and assaults, largely on the grounds that it is an unnecessary and extravagant luxury.
The usual case against juries in sex cases – merely hinted at in Mr Maugham’s short piece – is that they apply “rape myths” to return over-lenient verdicts; in other words that they apply pro-male prejudices to acquit men of rape. Yet prejudice works both ways: one study on mock jurors, for example, showed that while being poor, male and politically conservative were all associated with being more likely to acquit in rape cases, being rich, having “low empathy” for the defendant and having “positive attitudes towards rape victims in general” were all associated with being more likely to convict.
There is something horribly condescending about the idea that only those with the approved prejudices should be permitted to decide guilt in sex cases. It is just as wrong to convict because you have “positive attitudes towards rape victims in general” as it is to acquit because you think women often lie about rape. Mr Maugham’s assertion that “men are able to rape women with impunity” is itself an absurd prejudice.
The fact that a jury (usually) has 12 members, the need for jury near unanimity and the fact that in a real trial a jury is well aware of the solemnity of its task and is given clear instructions of law ought to mean that prejudices are as far as possible put to one side. Of course that does not always happen. But the best study we have of the workings of real juries in actual cases (Cheryl Thomas’s 2010 Are Juries Fair?) suggested that it usually does. Conviction rates for rape in jury trials were about 55% (CPS figures suggest that they now hover around 58%), which was higher than for many other serious offences, including manslaughter, GBH and attempted murder. The study also, to use its expression “challenges the view that failure to convict in rape cases is due to juror bias against female complainants.” Juries were, if anything, harsher on male complainants than on female ones.
I am quite sure that if Mr Maugham were on a jury he would never judge an individual more harshly because of his belief that the law generally is harsh to women, but if he did so he would in all probability find his prejudice counter-balanced by someone who thought that, on the contrary it is too harsh towards men.
Juries are not perfect. They consist of human beings and as a result they can be stupid, prejudiced and unfair, as some “specially trained judges” would also be. Juries provide no absolute guarantee against miscarriages of justice, both in acquitting the guilty and in convicting the innocent. The effect of social media on juries is a huge problem that we have hardly begun to address, as recent events involving Tommy Robinson have demonstrated. There are many ways in which juries could be made more just: one suggestion which in my view deserves consideration is that they could be asked to give at least an outline of reasons for their verdicts, as they sometimes are at inquests.
What we certainly should not to is to enlist prejudice, misunderstanding and myth with a view to undermining one of our fundamental protections against injustice and tyranny. That is the danger of pieces like Mr Maugham’s.