By Safeena Rashid

WHY are rape conviction rates low? A question often asked, and a variety of answers are given. Because we have a requirement of corroboration? Because of the not proven verdict? Because complainers are subject to vigorous cross-examination? I suggest the answer is more complex and lies deeply within wider society and our understanding of rape.

Most people think of rape as “a stranger being dragged into a dark alley”. But this is only a very rare situation of rape. More frequently, the allegation is an incident between two adults who might have been socialising and intoxicated to some degree, or who might even have been in a relationship.

Consent is central – did the parties have a shared understanding of what was going to take place between them? This lack of shared understanding, or lack of free agreement, turns what is ordinarily a perfectly normal human interaction into a heinous criminal act.

In court, 15 members of society are randomly selected to form a jury. They are told to put any sympathies, prejudices or moral judgments out of their minds and to judge the case solely on the evidence presented. They are also directed not to think about the consequences of any decision they make.

Regardless, perhaps they wonder what a rapist looks like – not like the respectable-looking young man in the dock, and this is why the question of consent will be given anxious scrutiny as juries seek very compelling independent evidence to “entitle” them to label someone a rapist. That compelling independent evidence, such as a recording of what happened, or evidence of force or injury, is usually absent.

People other than the complainer and accused can ordinarily speak only to circumstances surrounding the incident, such as their behaviour in the lead up to it or her distressed state afterwards. Surrounding circumstances seldom tell us about what actually happened between them, leading to many cases becoming her word against his; does her account of a lack of consent convince the jury beyond reasonable doubt that a rape took place, or does his account of consent raise a reasonable doubt?

Rape conviction rates are low because we as a society struggle to understand what that absence of consent looks like. Take a relationship where domestic violence features, where it has good days and bad days. There will be consensual sex intermingled with instances that are quite the opposite. It is understandable that some people might have difficulty comprehending how one half of this relationship is happy to have occasional, even frequent, consensual sex despite a history of rape within the relationship. Whilst legally, even in the context of a relationship, consent one day does not imply consent on another day, are we as a society ready and willing to accept a complainer’s account that rapes occurred as well as consensual sex?

Another common example is two individuals socialising – flirting, dancing, leaving a venue together. She says she consented to some minor sexual conduct but not to what happened. His position is that everything was with her consent. Legally, consent to one form of conduct does not imply consent to another form, and there requires to be continued consent throughout any sexual act. Are we as a society able to accept this? Are the practicalities easy to comprehend? If progress is to be made, early education of our young people about sexual relationships and consent is required.

Safeena Rashid is an advocate