HMCPSI has just published its 2019 “Rape Inspection” report. This is a document which looks at how well the system is currently working. In its own words

If 58,657 allegations of rape were made in the year ending March 2019 but only 1,925 successful prosecutions for the offence followed, something must be wrong. The National Criminal Justice Board has commissioned work to determine where exactly the justice system is failing victims.

Consternation arises on Reddit and Twitter over whether the CPS are starting from a fundamental failure to recognise the context of Violence Against Women and Girls (VAWG) in which sexual offending arises. A rather clunky paragraph in the foreword states that

Rape is a crime that is committed primarily by men against women. However, it is also perpetrated against men and boys, so in this report we refer to the complainant and the suspect as ‘them’ or ‘they’, because penetrative offences are gender neutral. I recognise that there have been discussions over the use of ‘complainant’, ‘victim’ and ‘survivor’ and of ‘suspect’, ‘accused’ and ‘defendant’. We have used ‘complainant’ and ‘suspect’ throughout. If we have erred, it is not through disrespect.

If you isolate the words “penetrative offences are gender neutral,'“ then this seems baffling. Penetrative offences are what, now? Self evidently rape is not a “gender neutral” offence: the offence of rape in the UK requires penetration by a penis. Nor are victims gender neutral, they are overwhelmingly women.

However, the document does accept that this is the case; even in that one paragraph the writer acknowledges at the outset that rape is committed primarily by men against women. Much further down the document it is made clear that the word “rape” was used for the full file of sample cases, of which only 86.4% related to charges of rape or attempted rape, with the remainder being other RASSO (“rape and serious sexual offending”) offences. It is also correct to say that victims are also men and boys.

Under the header of characteristics, we get clarity on quite how non-neutral the suspects in RASSO offences are, if it wasn’t clear:

Suspect characteristics
3.16. The suspect was an adult (when the offending was alleged to have taken place) in 82% of our 450 cases and a child in 16.2%. The allegations spanned their 18th birthday in the remaining 1.8%. All but six of the suspects were male, with the remaining suspects either female (five) or non-binary (one).

Complainant characteristics
3.17. The complainant was an adult (when the offending was alleged to have taken place) in 60.9% of our 450 cases and a child in 38.7%. The offence spanned their 18th birthday in the remaining 0.4%. 3.18. A total of 214 complainants in our file sample were vulnerable at the point when we considered the case: 52.8% were children, 27.1% had mental health issues, 11.2% were vulnerable in another way (such as being elderly or disabled), 5.1% had learning difficulties, and the rest (3.7%) had more than one vulnerability.

As a positive, the document doesn’t shy away from placing RASSO offences into the framework of a “cross departmental strategy on VAWG.” In Spring 2020, there is to be a review, with recommendations to be cleared by the VAWG inter-ministerial group.

It doesn’t seem, therefore, that the report has failed to contextualise RASSO offences as male violence against women and girls. It has.

Does that mean that all is rosy in the land of RASSO prosecution? Sadly not.

One issue is that of targets. Targets, the report concludes, do not increase sound prosecutions but rather encourage poor behaviour on the part of the authorities, and were therefore abandoned, and replaced:

By 2010–11, specific targets for casework had ceased, and performance in Areas was measured over time and against the national average. This continued until 2013–14, when the CPS set levels of ambition for various priority aspects of performance: the high weighted measures. The levels of ambition for outcomes included one for convictions in all cases of VAWG: that is, domestic abuse, rape, and sexual offences. In 2015–16, the level of ambition for VAWG was split into separate levels for rape and domestic abuse.

Sounds good! But wait; last year these levels of ambition for VAWG offences were quietly dropped:

2.24. In 2018–19, the CPS removed the levels of ambition for rape, domestic abuse, hate crime and other conviction rates, but retained high weighted measures for some aspects of delivery. The CPS continues to monitor and assess Area and national performance against its high weighted measures

Despite the assurance of continued monitoring, it is a real pity that this has been dropped.

The report flags a number of obstacles to successful charge and prosecution. These are: delay, “admin finalisation,” and risk aversion.

Delay is sometimes attributable to the police, CPS or other resources (the time taken for forensic results is one such issue), and sometimes to the complainant.

“Admin finalisation” as the report acknowledges is a misleading term, suggesting conclusion when it actually means that the file has been returned to the police for further action. An astonishing 28.6% of cases were marked “admin finalised” in 2018/19 as an alternative to charge or NFA (no further action). Reading between the lines, it seems that there is a certain amount of buck-passing: the police pass the file to the CPS, who pass it back to the police with an action plan, which doesn’t happen and the case is marked as admin finalised. Lack of resources is likely to be a bigger problem than lack of interest.

The Inspectorate exonerates the CPS from allegations of risk aversion in RASSO cases, saying that this is not easy to measure and emphasising how hard it is to make the decision to prosecute or not, and that the inspectors would have made in most cases the same decision of the CPS. However, on the two “blunt measures” - whether post-trial convictions rise and whether an increased number of cases are admin finalised - both suggest a marked rise. Post trial convictions (where a defendant does not plead guilty but is found guilty after a trial) rising may suggest that the more obvious cases are being charged in preference to the less clear cut, and the increase in admin finalisation suggest more and more information being requested pre-charge from the police.

One feature of the report is a tendency to blame failure on the inherent difficulty of rape to prosecute, and thereby frame it as impossible or near impossible to change. It can be summed up in this sentence: there is a “growing narrative of failure that does not always take into account the difficulties of investigating and prosecuting the most emotive and finely balanced cases that can come into the criminal justice system.” Yes, rape cases are emotive and difficult. That does not mean that failure is inevitable or that nothing can be done about it.

Reviewers and future reporters must engage more with why, as a society, we find these cases so hard - and what can be done to address this. FiLiA would welcome the involvement of victims and women’s groups, not just lawyers and managers, in any follow up. Given that nearly half of the complainants in the sample were targeted when they were vulnerable, improving our legal responses to RASSO offending is now an emergency.