Juries in England and Wales are more likely to convict than acquit defendants once rape cases reach the courts – and this has been the case for at least the past 15 years.

That’s according to an analysis by UCL’s Professor Cheryl Thomas of tens of thousands of jury verdicts and millions of charges laid in the Crown Court between 2007 and 2021. Similar data on jury conviction rates in New Zealand isn’t readily available. LawNews has submitted a request under the Official Information Act 1982 to the Ministry of Justice, which for the past month has been pulling together jury and judge-alone statistics for sexual violence offending. Those are expected in the next week.

Back in England and Wales, Thomas’ analysis reveals that the jury conviction rate for rape cases has been more than 50% in every year of the research period, except for 2014. The conviction rate in 2007 was 55%; in 2021, it was 75% – an increase of more than a third. Rape offences have the highest not-guilty plea rate of any offence and juries don’t consistently acquit young men for rape more than older men; contrary to popular belief, they are reluctant to convict younger offenders.

“These findings…are important for all rape complainants. Knowing the truth about jury decision-making in rape cases is important for anyone who may be reluctant to continue with a case through to trial because they incorrectly believe that juries are unwilling to convict the accused in rape cases,” Thomas says.

While there are serious problems with how the UK police handle rape complaints and the delays in reaching court, juries are not responsible, Thomas says. “They can only decide the cases put to them and this research shows that if rape complainants can put their evidence to a jury, they have a good likelihood of securing a conviction.”

New Zealand statistics

Under s 128 of the Crimes Act 1961, there are two ways to sexually violate a person – rape or unlawful sexual connection – each without consent and without reasonably believing consent was given.

From the datasets publicly available, it’s clear that conviction rates across several sexual violence offences have increased since 2013. At the same time, fewer charges have been resulting in “not proved” outcomes – either an acquittal, withdrawal or dismissal. Last year, 299 rape charges resulted in convictions – up by nearly a fifth in the past decade – and not-proved charges fell a tenth to 403. Charges of unlawful sexual connection, which resulted in a conviction, have risen 47% to 761 in the same period while not proved charges have fallen 8% to 682 in 2022.

Overall, convictions for sexual violation charges have jumped 38% since 2013. By contrast, fewer s 128 charges have not been proved – a decline of 9% to 1,085 charges in 2022. Accounting for all sexual offences, including attempted sexual violation (s 129), indecent assault and objectionable publication, 3,059 charges were convicted in 2022, up 12%. Charges that were not proved largely fell flat. The highest number of charges for all sexual offences were laid in 2022, reaching nearly 6,400, and their number has risen 9% since 2013, when 5,881 charges were brought in court.

Acquit rather than convict

However, it’s also clear that not-proved outcomes have mostly outweighed convictions when taking each year separately. Continuing a decade-long trend, 2022 saw 55% of rape charges not proved compared to the 41% that resulted in convictions. The closest gap was in 2017, where 53% were not proved versus 41% convicted while 2020 saw the largest difference (70% not proved to 25% convicted). While not-proved outcomes for unlawful sexual connection charges have exceeded convictions for most of the past decade, 2022 was the first year to buck the trend: 50% of charges were convicted compared to the 45% that weren’t proved.

When combined under s 128, the not-proved trend has persisted although the smallest difference occurred last year (48% to 47%). But, when accounting for all sexual offences, convictions exceeded not-proved results in six of the past 10 years, with 2017 having the largest gap (51% convictions to 43%).

Not the same

When compared to last year’s statistics of rape in New Zealand, Thomas’ findings in the English and Welsh courts reveal different situations, says AUT Law School senior lecturer Paulette Benton-Greig. “It tells a simple story that, actually, the conviction rates are under 50%, so that’s different to what she says, which is that juries more often convict for rape than acquit. We do have our judge-alone trials – they’re a very small percentage [so] unlikely to make the difference. “So, it’s not the same here. Of the charges that get to completion – in other words, they’re not discharged before they get to a finding – we more often acquit than convict.” Sitting behind these statistics, however, is the rate of attrition – how often complaints fall away as they progress through the criminal justice system.

And that’s if complaints even enter the system at all: according to Ministry of Justice research, more than 90% of sexual violence is not reported to the police. The ministry’s attrition research found the number of individual sexual violence offences reported has increased by a fifth since 2017 to nearly 10,000 in 2021. The number of victims has increased by 26% to just shy of 6,600 in 2021. Where reports are made, most instances of sexual violence do not see a court outcome. The research reveals that in the two years after complaints were reported to the police, 46% resulted in the identification of perpetrators, 42% were prosecuted, 13% were convicted and 8% were imprisoned.

Prosecutorial discretion

However, the police took no action in 46% of complaints, either because they decided not to progress the matter (31%), the complainant wasn’t in a position to keep going (12%) or no crime had occurred (3%). Where the police did prosecute, charges were dismissed, discharged or withdrawn in 9% of cases, while 2% resulted in acquittals.

Prosecutors consider the complainant’s views in whether to take court action, says Detective Inspector Dave Kirby, manager of the police’s adult sexual assault and child protection unit. Other considerations under the Solicitor-General’s Prosecution Guidelines include the strength of the evidence and whether the public interest requires a prosecution. The commonest reasons for police declining to prosecute are insufficient evidence and a complainant being “not physically, emotionally or psychologically in a strong enough space at the time to go through the emotional drain and stress on their personal wellbeing caused by the investigation and justice process”, Kirby explains.

“The difficulty with all sexual complaints is that there is usually only two people involved (the victim and the person charged). That leads to a high difficulty in proving a case beyond reasonable doubt. Also, the influence that tradition[al] rape misconceptions have on juries when making decisions.”

Big drop-offs

One of the traditional rape misconceptions, which Thomas’ research explicitly pushes back against, is the belief that English and Welsh juries are unwilling to convict in rape cases. Benton-Greig says Thomas’ claim is problematic because “she’s only talking about those cases that actually make it to an outcome. And what we know, when we look at the attrition research, is that the vast majority of sexual assaults never make it to the police.

“If you look at the most recent crime and victim survey, the rate is about 7% of events that could be crimes get reported to police in the first place. And then from there, there’s a big drop off to charging, and then there’s a big drop-off from charging to outcome,” the law lecturer says. “So it’s a bigger picture than just guilty versus not guilty, at the end of the day…a bigger picture than she’s painting.” Part of that picture are efforts to address the criminal justice system’s flaws. “It tends to not assist the people most in need, to cause high levels of distress and ill-effects from its own processes for those who are complainants or witnesses or victims. And, ultimately, even when you get a conviction, you put people in jail and then does that stop sexual predation?” Benton-Greig says.

“Maybe temporarily, but especially those who offend against adults, there’s very little treatment in jail. They’re put in a system that’s brutalising for years on end and probably come out even more brutal than they went in. There are not many ways you can look at the system and go ‘oh yeah, this is great’ – despite the fact that people are working really hard.”

Sexual Violence Legislation Act

A strong argument for alternative approaches exists, Benton- Greig says. “The trick is how do you do them in a way that is safe, fair and gets good outcomes. We’re still trying to figure that out in some ways because you’ve got to be both safe for victims, but also fair for people who’ve been accused. And you want to end up with a solution where it doesn’t happen again. Almost everybody who goes [through] the justice system wants it to not happen again.”

A recent alternative is the Sexual Violence Legislation Act 2021, which amended trial processes and the rules of evidence to improve complainants’ experiences in court. Among the changes: complainants can give their evidence in other ways, including through pre-recorded cross-examination where appropriate; a complainant’s previous sexual interactions with the defendant are off-limits, unless clearly highly relevant; and judges must instruct juries to dispel any rape myths from their minds when weighing up the evidence.

Proponents welcomed the law change, such as Green MP Jan Logie, who introduced the Bill in 2019 as Parliamentary Under-Secretary to the Minister of Justice. Logie thanked the “courageous people” who spent “12 hard-fought years” to deliver change, saying that “survivors’ growing calls for action, and a system that safeguards victims, have made this Bill a reality”. The Act had its detractors. Some criminal defence lawyers “swore a blood oath” to try to defeat it, as Benton-Greig describes them, over fears the statute would abrogate fair trial rights.

In an opinion piece for The Dominion Post in June 2020, Auckland-based barrister Samira Taghavi, a member of ADLS’ criminal law committee and now a member of the ADLS Council, said “grave” concerns existed that relevant evidence benefiting the defendant – such as their previous sexual interactions with the complainant – is prima facie outlawed by the then Bill, as it could increase the probability of wrongful convictions.

The “nonsensical” heightened relevancy exception would also remove the defendant’s right to submit anything of relevance into evidence. “Details may be the thing that the defendant can successfully rely upon to prove his innocence but which would be choked off from careful examination by juries because of this Bill,” Taghavi said.

‘Strongly disagree’

Another of her opinion pieces argued the Bill would railroad many innocent Māori men into jail as it presumptively prohibited evidence pointing to their innocence and destroyed their right to silence, thus increasing conviction numbers. “The probability of conviction is not racially neutral. So Māori men should worry. Their likelihood of conviction on a sexual violation charge is (on a three-year average) some 14% greater than for European defendants on the same charge,” Taghavi said.

It was a claim with which Professor Elisabeth McDonald and Associate Professor Scott Optican “strongly disagree[d]”. They said the law change neither removed a defendant’s right to silence (at or before trial), nor interfered with the right against self-incrimination. “Whether to give evidence at trial – or make a pre-trial statement to police – always has been, and still will be, the defendant’s exclusive choice.” Moreover, the law change would benefit Māori and their whānau, such as through judges’ directions to juries addressing rape myths, they argued. “Far from leading to the ‘increased imprisonment’ of ‘falsely accused’ Māori men, the Bill will help to ensure the fair and rational presentation of evidence in sexual offence prosecutions, while doing nothing to undermine a defendant’s existing fair trial rights.”

One, then two, now impossible

In an opinion piece from February 2021, criminal defence barrister and former ADLS President Marie Dyhrberg KC wrote that facilitating complainants through the court process was desirable – “but only if the changes are fair to everyone”. “Already solid protections for complainants are in place; they can give evidence by video, for instance, and do not have to be in the courtroom.

They also cannot be asked about their sexual experience with anyone other than the defendant. “These reforms happened years ago,” Dyrhberg said. “Unfortunately, the Bill crosses the line between assisting complainants and preventing accused men from effectively defending themselves.” With the Act now on the statute books, it will take some miscarriages of justice to expose its shortcomings and rectify the damage it might cause, she says. “Our hopes of that happening are zero and if it is going to happen, it’s years down the line and that’s the difficulty: once you’ve got certain legislation in place that is unfair, it will be there for a long time.”

Lawyers who defend sexual offence complaints are telling her their jobs have been made even harder, Dyhrberg says. “We [are] fighting with two hands behind our back. It used to be one, but then it became two, and now it’s just impossible. It is so hard to represent somebody with the current legislation. It’s so prejudicial…The law is adequate as it is. We do not need these changes and no, complainants are getting a fair shot at what’s happening in court.”

Benton-Greig says it’s too early to know what unintended consequences the Act might cause, especially since few, if any, charges to which the law applies have made it to trial yet. And the wait for results will be long too, although some trials might occur by the end of the year.

“We don’t know how it’s going to work in practice. We don’t know what it might mean for victim experience and for the fair trial rights of defendants.” ■