Diary of a Lawyer: How rape is being decriminalised
In recent years, a disturbing trend has emerged where rape is becoming effectively decriminalised, writes Dr Charlotte Proudman
Rapists already avoid convictions and receive sentence reductions – charge and conviction rates have plummeted over the last eight years – but now abusers may be released early. The disheartening nature of the justice system’s handling of rape cases is a source of profound concern and has led to a in the very institution designed to deliver justice. Victims of rape and abuse face a daunting and emotionally taxing legal process, in which they encounter scepticism through victim blaming and systemic barriers. Currently, rape cases are severely under-reported – likely exacerbated by the fear of re-victimisation during legal proceedings, as survivors grapple with the prospect of having their credibility and past scrutinised.
The term “decriminalisation of rape” refers to a context where rape may still be illegal but is under-reported, under-investigated and rarely results in prosecution or conviction. In such a scenario, legal prohibitions against rape often exist on paper alone, as the enforcement and implementation mechanisms are either so weak or flawed that perpetrators escape consequences. This escape is often showcased by perpetrator impunity due to systemic failures within the criminal justice system as outlined in Claire Waxman’s 2017 review. While rape remains nominally illegal, the lack of meaningful consequences means the law fails to provide a deterrent effect. The result is discouraging survivors from reporting – the London victims’ commissioner survey revealed about a third of women do not report rapes to police – and erodes public trust in the country’s ability to address rape.
In October justice secretary Alex Chalk announced certain prisoners will be released 18 days early, and low-level offenders will do community service instead of serving jail time. This follows Lord Edis’s order that those on bail should have their sentencing delayed. Offenders will be on the receiving end of these changes if their sentence is 12-months or less. Sentences could include those convicted of abuse directed at women, such as stalking, harassment, revenge porn and other domestic abuses. The release of individuals convicted of male violence against women contributes significantly to the pervasive sentiment that perpetrators are not held accountable for their actions. When those found guilty are released prematurely or receive suspended sentences, it sends a troubling message that victims’ safety and well-being is not prioritised. These decisions undermine the justice system and deepen the mistrust that survivors and the public harbour toward institutions meant to protect them.
A case that demonstrated the problems in our current system was that of Zara Aleena who was murdered and sexually assaulted by Jordan McSweeney last June a mere nine days after his release from prison. He pled guilty to his crimes and received life imprisonment. But recently, he was granted a reduction of five years on appeal. In the decision, chief justice Lady Carr stated, “Having correctly found that Ms Aleena must have been rendered unconscious at an early stage in the attack, the judge had lacked a sufficient evidential basis on which to be sure that there had been additional mental or physical suffering such as to justify an increase in the 30-year starting point.”
Whilst this decision is in the parameters of the law, the message it sends out is deeply concerning. Women’s rights organisations have argued that reducing the sentence of a murderer minimised the severity of the trauma, pain and suffering Zara experienced, undermined the gravity of the crime, and sent a distressing message to survivors and society.
This alarming trend towards the decriminalisation of rape has far-reaching consequences for survivors, society and our understanding of justice. There is a critical need not just for reformed and implemented legal statutes but also for effective enforcement and commitment to holding perpetrators accountable to ensure the true criminalisation of rape, not only in theory but in practice.