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Thursday 28 August 2014

‘She had Spanx on’: why one rape case was dropped by prosecution

Wearing the 'wrong' underwear just one of reasons why cases not considered

Melanice Newman and Oliver Wright

Published 02/05/2014 | 12:37

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An alarming fall in the number of rape convictions has led the British Director of Public Prosecutions to express concern that victims are not seeing their cases dealt with properly.

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New figures reveal that 129 fewer rape suspects were convicted in 2013 than the year before and the number of rape cases referred to prosecutors for charging has fallen by more than a third since 2011. This is despite a rise in offences recorded by police.

In one case, a lawyer told a woman who had been raped that they would not be pursuing her case, “particularly bearing in mind the type of underwear that you had on at the time”. The woman, who has asked for anonymity, says she was wearing Spanx – body-shaping hosiery.

In an interview with The Independent, Alison Saunders, the Director of Public Prosecutions, said there were worrying variations in the way rape cases are dealt with across the country. “We have certainly seen some indication that cases which we thought should have gone through [to charge] didn’t,” she said.

She added: “There is best practice out there. It’s just that not everyone is doing it.”

The Crown Prosecution Service and police have already set up an expert panel to assess the problem which is expected to produce new national guidelines for police and prosecutors.

Figures given to the Bureau of Investigative Journalism by the CPS show that last year there were 1,747 fewer rape cases sent to the CPS by the police than in 2010, while the number of rape convictions fell from 2,433 to 2,300.

The fall in convictions raises serious concerns that, despite previous policy reviews and improvements to management of rape cases, police and prosecutors are still not getting to grips with the crime.

In the past few years, the CPS has claimed that it is successfully tackling rape by citing increases in the percentage of cases it prosecutes that result in a conviction – the “conviction rate”.

But some parts of the country that have the highest “conviction rates” have seen some of the largest falls in real terms of successful prosecutions, suggesting that cases that previously would have been prosecuted are being dropped.

East Midlands and the East of England CPS regions, for example, were recently praised for their high conviction rates.

However the raw figures show that East Midlands achieved only 188 convictions in 2012-13 compared with 208 the previous year, while the East of England had 18pc fewer convictions than in the previous year.

Ms Saunders said the improved conviction rates showed the CPS and the police were getting better at building stronger cases.

But the drop in referrals and convictions has been greeted with dismay by academics and charities working with survivors of sexual violence.

Marianne Hester, professor of gender and violence at Bristol University, said it gave a wrong impression that those reporting attacks “are just making it up”. “The number of convictions should be much higher,” she said.

“But most cases do not end up in court, and this is not because the rape did not happen but because the police may not be vigorous enough in pursuing evidence, or because victims may be deemed too fragile to cope in the court setting, or because they are seen as the ‘wrong’ kind of victim if they have been raped before.”

Academic research has shown that only around 12pc of rape offences result in a conviction of any kind – and only around six per cent end in a conviction for rape. These figures have not improved significantly over a decade despite improvements in police and prosecutor training and victim support and the introduction of specialist centres for collecting forensic evidence.

The conviction rate when cases go before a jury is higher than the average for other indictable offences – again suggesting that not enough cases are coming to court.

Mary Mason, director of Solace Women’s Aid, said: “We will not see convictions improve significantly until there is a change to the institutional mindset which blames the victim for being raped.”

The former Director of Public Prosecutions Keir Starmer, who left the CPS in 2013 after five years at the helm, also said the conviction numbers were concerning. He said dramatic falls in referrals of rape cases from police to prosecutors might be to blame.

“We initially thought that the numbers might be plateauing and would then continue the upward trend, but then they started to go down,” he said. “It is not due to rape offences dropping, I am certain about that. But it is very hard to pinpoint a reason. It may be related to the decline in referrals from the police.”

New guidelines brought in around 2011 put more emphasis on police forces identifying and stopping cases where the threshold for charging has not been met than had previously been the case. The CPS insisted that any changes were in language rather than substance.

But the Rape Scrutiny Panel set up by the CPS and police chiefs to examine the reason for the decline has now realised that the guidance has been interpreted differently around the country.

“You have some places where within 24 hours of a rape being reported to the police there is a referral to the CPS. In others [the guidance] has been interpreted as ‘send the file through when we are ready for charging’ – a much later stage,” said Ms Saunders.

The CPS is now working on a new protocol on how rape cases are handled.

Case study: the ‘wrong type of underwear’

After Suzanne (not her real name) was raped in 2012 she was shocked to discover that her tummy-control underwear was partly to blame for the case being dropped by the Crown Prosecution Service. Suzanne had been in a sexual relationship with her partner and was planning for him to stay the night until, she said, his mood changed.

They had a row while in his car outside her house, after which she claimed he followed her into the house and raped her, leaving the house immediately afterwards. But, despite the fact that she was prepared to give evidence, the case was dropped by prosecutors at an early stage.

“I have taken into account all the surrounding circumstances, including the exchange of text messages between you before and after the incident,” a letter she received from a male CPS lawyer said.

“I have also considered your account of the incident, particularly bearing in mind the type of underwear that you had on at the time.”

“I was wearing Spanx control pants,” Suzanne said. “I don’t know what he was thinking.”

She appealed against the decision and a CPS prosecutions manager admitted in a letter that the previous lawyer “made an unnecessary reference to the underwear that you were wearing which on my consideration of the evidence has absolutely no relevance to the issue in this investigation”.

But despite that, he said he considered the original decision not to prosecute had been correct.

Case study: evidence ignored

The Metropolitan Police took no further action against a violent rapist despite having evidence connecting him to the crime.

James Isted, who was jailed for life in February 2014 for two violent rapes, was arrested after his first attack in 2011. But he was released without charge due to a “lack of evidence” after the victim, a teenage girl, was unable to identify him. He went on to commit a second attack.

The Bureau of Investigative Journalism can reveal that Isted stole the teenager’s phone after the first attack. Detectives seized several phones from him after his arrest, but failed to check whether the victim’s phone was amongst them.

Officers eventually realised that Isted did have the victim’s phone, but failed to re-arrest him.

A Metropolitan Police spokeswoman said: “An [internal] investigation is ongoing and it would therefore be inappropriate to discuss further at this time.”

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