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Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law

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Abstract

Rape conviction rates have fallen to all-time lows in recent years, prompting governments to explore a range of strategies to improve them. This paper argues that, while the current legal impunity for rape cannot be condoned, increasing conviction rates is not in itself a valid objective of law reform. The paper problematises the measure of rape law that conviction rates provide by developing an account of (some) feminist aims for rape law reform. Three feminist aims and associated measures are explained—all of which look beyond conviction rates to qualitative and victim-centred outcomes of criminal justice processes. Applying these measures, I argue that strategies designed solely to increase conviction rates are more likely to work against, rather than in support of, feminist aims. The paper thus underscores the need for continued feminist engagement with rape law reform, broadly conceived, notwithstanding its acute limitations for feminist anti-violence politics.

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Notes

  1. Not all jurisdictions maintain a specific sexual offence called rape but the term is significant because many victim/survivors use it to describe their experience. It is used in this paper to refer to serious sexual assaults, generally involving penetration. ‘Sexual assault’ is used here interchangeably with rape, unless otherwise specified to include non-penetrative as well as penetrative offences. Female pronouns are used when referring to rape victim/survivors and male pronouns for rape offenders in recognition of the gendered nature of sexual offences.

  2. Of course, this is not a new question in relation to violence against women—see Walklate (2008).

  3. In considering feminist ‘aims’ and ‘measures’ I am participating in (as well as problematising) a bureaucratic and managerial discourse that generally has the effect of sidelining feminist theory and politics (see Adkins 2009). This strategy is not without risks, but its use here is intended to highlight the fact that, despite the significant input of feminist activists to rape law reform processes, the outcomes of rape law reforms are rarely assessed by formal processes and government agents in relation to feminist objectives or aims.

  4. Heath calculates from this statistic that, of the 5,240 rapes committed in South Australia in 2003, only 786 were reported to police, only 100 reached court, and only 12 resulted in a finding of guilty as charged (2007, p. 176). She found that major non-sexual assaults had outcomes of guilty as charged that were 2–10 times higher than the conviction rate for rape and attempted rape (2007, p. 183).

  5. In Victoria, for example, where the Office of Public Prosecutions had suggested that falling conviction rates might be explained in part by the fact that “matters previously ‘filtered out’ by the police are being proceeded with” (VLRC 2001, p. 48), a study of police charging decisions in rape cases reported in Victoria between 2000 and 2003 (SSCRSA 2006) found that “[t]he rape victim most likely to see charges laid against the offender is still one who is injured, who is medically examined and who can demonstrate sobriety around the time of the offences” (2006, p. 25). Similarly, the authors found that “[p]olice confidence to charge continues to be buoyed by offenders who have prior convictions for sexual offences or where other offences are committed against the victim in addition to the rape” (2006, p. 25). Although this was not a longitudinal study, police ‘filtering’ of rape cases is evidently still extremely rigorous—charges were only laid in 15% of reported rapes.

  6. This explanation was offered in the South Australian enquiry: specifically, police attributed low conviction rates to victims requesting that no further action be taken owing to “the trauma of having to sit through trial, embarrassment or a belief that conviction would not succeed” (Heath 2007, p. 187).

  7. The number of defendants pleading guilty dropped from 26% of prosecuted offenders in 1988–1989 to 15% in 1998–1999 (VLRC 2001, p. 47). Similarly, an increase in conviction rates for sexual offences in NSW between 2004 and 2006 was attributed in part to an increase in guilty pleas (NSW Bureau of Crime Statistics and Research 2007, p. 2).

  8. Of course, ironically, these views are maintained despite the evidence of static or falling conviction rates and the empirical research which establishes that legal reforms have generally had little or no effect on the types of cases prosecuted and those in which convictions are secured (Seidman and Vickers 2005; Temkin and Krahé 2008; Kelly et al. 2005; Clay-Warner and Burt 2005).

  9. For example, various reforms introduced in New South Wales were recently trumpeted in a news release as being successful because they were associated with an increase in the rape conviction rate. In a news release titled ‘Increase in the conviction rate for sexual offences in NSW Courts’, data is presented to show that, of those prosecuted for a sex offence in the Higher Courts in 2006, 49% were found guilty, compared with only 35% in 2004 (NSW Bureau of Crime Statistics and Research 2007). Tellingly, this finding was included in Australia’s combined sixth and seventh report on the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women July 2003–2008 (Office for Women 2008, p. 90) following a note that the reforms included “a clear definition of consent, and strategies to reduce the trauma to complainants of giving evidence in court” (Office for Women 2008, p. 90). No other objectives for the reforms were identified or discussed, no outcomes considered other than the increase in convictions.

  10. In this respect the aims of rape law reform are much narrower than those of anti-violence campaigns. Turning to law as a strategy to prevent rape and lead social change has long been understood to be of limited value, at best, in feminist terms (see Armstrong 2004; Munro 2007). However, improving law’s treatment of the victim/survivors who do seek legal redress is a distinct, although clearly related, issue.

  11. A recent study of police charging decisions in Victoria found that the fact of the victim being identified by police as having a mental health or psychiatric disability was the single ‘best predictor’ that an investigation would not proceed. These cases were also identified as “the most likely to generate police disbelief” and “a key area where police treated victims inappropriately” (SSCRSA 2006, p. 45).

  12. For some complainants, the opportunity to testify and have their account publicly validated is extremely important (Herman 2005, p. 585) but, when charges are bargained, the public record does not reflect the complainant’s account and her opportunity for validation may be lost.

  13. For example, Naffine has documented that until the 1980s as many as 50% of reported rapes in Australia were not accepted by police or treated as genuine (1992, p. 752); with changes to police practices, education on rape and its effects, and increasing numbers of female officers involved in statement taking the recorded figure of false complaints has fallen to around 2–8% (Naffine 1992, p. 752; SSCRSA 2006, pp. 20, 32).

  14. Kelly, Lovett and Regan, for example, found that victim/survivors were more likely to report rape to police (than average reporting rates) if they were young, unemployed, had a mental health, psychiatric or intellectual disability, or worked in prostitution (Kelly et al. 2005, pp. 41–42). A Victorian study of reported rapes also found that a disproportionate number of survivors with mental health disabilities reported sexual assaults to police (SSCRSA 2006, p. 16).

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  1. Melbourne Law School, The University of Melbourne, VIC, 3010, Australia

    Wendy Larcombe

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Larcombe, W. Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law. Fem Leg Stud 19, 27–45 (2011). https://doi.org/10.1007/s10691-011-9169-2

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