“What were you wearing?” – How the Criminal Justice System is Failing to Deliver Access to Justice for Women who are Victims of Sexual Assault and Rape

By Sarika Bhatia

 

The European Court of Human Rights recently conducted a study that drew attention to the fact that a very small number of the applications received are filled by women. When analysing this, they pointed out that this reflects the obstacles that women face, including a lack of resources, confidence, awareness, as well as cultural and socioeconomic barriers. What is perhaps the most significant point about this is that such obstacles were noted to be of particular importance in the case of victims of violence and discrimination.

 

Where are women facing issues in gaining access to justice?
Some of the most notable areas in which women struggle to gain access to justice is in sexual assault cases, and the reasons for this are rather clear when examining the process women must go through to report a case of sexual assault.

 

It is key to note here that sexual offences are not limited to rape, but also include any attempts at rape, unwanted touching and being forced to perform other sexual acts. Victims of sexual offences do not only experience physical consequences of the crime, but also emotional and psychological harms that continue to last for long after the event, which unfortunately for women, sends the crimes into a realm where it is much harder to present a case that stands up to the interrogation that female victims are subject to in court.

 

Between 2020-2021, the CPS reported that the Covid-19 pandemic did not lead to a reduction in rape cases, instead, it led to a rise in cases by almost 5%. Furthermore, there were 330 fewer convictions for rape, and Home Office figures show that whilst there were 52,210 rape cases recorded in England and Wales in 2020, only 1.6% of these resulted in a charge or summons, and so it is no wonder that women across the world feel inclined to choose to save themselves the distress of being interrogated and humiliated in court, being asked to prove their trauma and even blamed for it, when there is so little chance that the perpetrator will be put behind bars. We can see the reasons for women’s apprehension to report sexual offences through data published by the Office of National Statistics, wherein it was reported that fewer than 1/6 victims of sexual assault reported their experience to the police, with 40% citing embarrassment for their reason to not report, 38% believing that the police would not help (an idea that is supported through the fact that despite there being 3,539 receipts of rape, only 1,557 prosecutions were completed, and 34% thinking that the process would be humiliating. In a study of a sample of survivors of sexual offences, only 5% ‘strongly agreed’ and only 9% ‘agreed’ that survivors could obtain justice by reporting to the police and a total of only 42% agreed that the police treated them fairly and with respect, further reflecting the issues women face in gaining access to justice.

 

And so, when it is so difficult to convict people for the most serious of the sexual offences under the 2003 act, one can only imagine just how many victims of sexual offences are unable to access any form of justice, or indeed even knowing that what they are going through constitutes sexual assault.

 

The experience of women seeking to obtain justice in the courts is also subject to multiple sources of discrimination. Women are firstly at a disadvantage due to their gender, since women are questioned and interrogated in front of a court (in which only 32% of judges are female) and subject to cross examination by defenders of the perpetrators. Alongside this initial disadvantage, factors such as their ethnicity, socioeconomic status, age, and even the way that a woman dresses, can also be used against women in the court, sometimes not even consciously- we live in a society where the media has built up an image of women: of what a good woman is, what a bad woman is and how women are evil and manipulative, an image that dates back centuries, this rhetoric can be seen in research by End Violence Against Women International where it is pointed out that implicit assumptions and stereotypes ‘define behaviours that are seen as acceptable and appropriate for women, in contrast to those that are acceptable and appropriate for men. For example, why do we so often accept heavy drinking as an excuse for bad (or even criminal) behaviour by men, while heavy drinking by women is viewed as culpability for their own victimisation?, this point draws attention to the fact that society has developed particular expectations of what they think a woman should be, and also that these rules are exclusive to women, with men either applauded or excused for behaviours that women are judged and condemned for.

 

Conclusion
In order to provide women a fairer chance at obtaining justice in cases of rape and sexual assault, we must work within society to change the way that women are perceived, we must challenge how they are portrayed in the media and dealt with in courts, we must stop acting as though a woman must fulfil certain criteria for her experiences of rape and sexual assault to be validated and we must make women more aware of their rights and the ways that they should never be treated, it is only then where society can make a start in giving women a fair shot at access to justice in sexual assault.

 

Ways to do this include making going to trial for sexual offences a less traumatic experience for women, perhaps by letting them testify via a video link, which the covid-19 pandemic has already reflected for us is a perfectly viable method of testifying. It would also be of help to provide extra training and spread awareness to the authorities involved in sexual offence cases about the best ways to approach such sensitive topics, perhaps encouraging them to work alongside therapists and psychologists to make them more effective at dealing with such sensitive matters and help to create an environment wherein women feel safer and more confident in obtaining justice. Such changes in the way we approach sexual offences have been supported by bodies such as UN Women, who published a 16 Steps Policy Agenda based on ‘prevention, protection and provision’ which provides a strategic plan on rape and ending violence against women, such national plans of action that involve spreading awareness, ensuring access to services and engaging the media would have a huge impact in giving women all over the world a significantly improved access to justice. Provisions are already being made around the world, such as in South Africa, where there are specialised Sexual Offence Courts which deal exclusively with rape and sexual violence prosecutions and employ staff that are trained to protect the victim and other provisions such as ensuring the victim does not need to come into contact with the perpetrator, these courts have a conviction rate between 70-95% in comparison to an average conviction rate of around 10%. It could very likely be found that the idea of sexual offences against women not being taken seriously enough to give them access to justice is perhaps one of the reasons for the sheer number of sexual offences that occur, and perhaps by implementing some of these changes, cases of sexual offences would fall, too.

 

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