by Dr Alice King, Senior Researcher, Legal Services Research Centre
In England and Wales, much like here in Australia, concerted effort has been made over the last several decades to improve rape investigation and prosecution. At the same time, criticisms from scholars, policymakers and victim-survivors alike have not waned.
An initiative aimed at improving rape prosecutions
‘Operation Soteria’ – an initiative aimed at improving rape prosecutions - was launched in 2023 in England and Wales, with discrete Crown Prosecution Service (CPS) and policing focus areas. I, along with Vanessa Munro and Lotte Young Andre at Warwick University, worked on the independent academic evaluation of the CPS ‘Operation Soteria’ – which explored the possibilities and pitfalls of various initiatives being piloted across the country.
Our findings have recently been published in the Modern Law Review. They show that despite persistent efforts, the possibility of rape justice remains entrenched within patriarchal understandings of ‘reasonableness’ – a legal concept that is central to criminal justice.
Credit: artisteer
Problems with rape justice
Problems with rape justice can be illustrated by the concept of ‘reasonable lines of inquiry’. When considering what ‘reasonable lines of inquiry’ means within investigations, the data showed how lawyers continue to ask for more evidence than is necessary. This led to ‘fishing exercises’ under the guise of reliability and credibility, which were disproportionately aimed at complainants.
When considering ‘reasonableness of belief in consent’, it was clear that long-standing rape myths around pre-existing sexual relationships, sexual promiscuity and alcohol consumption remained persistent within police and prosecutorial decision-making.
Dating apps and non-conventional forms of sexual activity have shored up new ways in which the presence of consent might be presumed. Concerningly, lawyers persistently failed to identify coercive or controlling behaviour.
In one case which did not make it past police investigation, several references were made to the possibility that the complainant had ‘catfished’ the suspect online and made a false allegation of rape when they met up to engage in casual sex because he had rejected her.
References were made to the fact she was notably larger and older than the suspect to support this line of thinking.
Potential for change
More positively, there was improved internal review and scrutiny of cases that were marked “no-further actioned” – meaning that a decision not to charge was made by either the CPS or police – demonstrating reflection and an appetite for learning within the CPS.
Overall, initiatives under Operation Soteria showed potential for positive change. However, at the same time, it was clear they – at present – fall short of the systemic interventions, cultural and procedural shifts needed to eradicate ‘rape injustice’ within England and Wales.