Low Conviction Rates Research Articles

Expert Witness Evidence in Sexual Assault Trials: Questions, Answers and Law Reform in Australia and England

A review of the psychological literature shows that jury-eligible citizens rely on a range of misconceptions based on victim and gender stereotypes when assessing the credibility of sexual assault complainants and rendering verdicts. Since these misconceptions are likely to account for the high attrition and low conviction rates in sexual assault trials in both England and Australia, this article investigates whether or not educative information ought to be admitted in these trials via an expert witness or a judicial direction. It also investigates the type of expert evidence that would be admissible in an adversarial context and the legislative models for doing so, based on Australian reforms. The article concludes by making four recommendations for reform to the laws of evidence in Australia, England and Wales.

Five Kinds of Perspectives on Legal Institutions

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain.Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4).Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'

On the Receiving End: Women and Stolen Goods in London 1783–1815

If women in London in the late eighteenth and early nineteenth centuries sought the perfect crime in which to participate, selecting receiving stolen goods provided excellent opportunities for profit and little chance of punishment. Low conviction rates, combined with the fact that no behaviour outside of gendered expectations was required in its commission, made dealing in stolen goods relatively easy for women in the metropolis. Although this particular offence has not been deeply analysed by historians of crime, its commission did alarm contemporaries, including members of the legal community and social commentators. This paper explores accusations against females in London for receiving, as well as the important roles that familial relationships and work played in their indictments for the crime.

At What Age Can Females Consent to Sexual Activity? A Survey of Jury-Eligible Australians

One suggested reason for the low conviction rates of alleged child sexual abuse offenders relates to the attitudes and beliefs the public hold about such victims; sexual interactions starting at an earlier age; and because the oversexualisation of children and teenagers portrayed in the media may have affected perceptions as to when females are capable ofgiving consent to sexual interactions. A sample of 580 jury-eligible participants completed six implicit questions via an online survey regarding females' capacity to consent. While participants had similar perceptions in response to the type of question asked, there were some differences due to respondent group. When significant differences were observed, women had significantly lower estimates of the age at which female adolescents can make informed decisions about sexual activity than men, as did respondents who had children and were older. Working with children had little impact. The legal implications of these findings are discussed.

Gender differences in alcohol-related non-consensual sex; cross-sectional analysis of a student population

BackgroundSexual offences are a global public health concern. Recent changes in the law in England and Wales have dramatically altered the legal landscape of sexual offences, but sexual assaults where the victim is voluntarily intoxicated by alcohol continue to have low conviction rates. Worldwide, students are high consumers of alcohol. This research aimed to compare male and female students in relation to their knowledge and attitudes about alcohol and sexual activity and to identify factors associated with being the victim of alcohol-related non-consensual sex.Methods1,110 students completed an online questionnaire. Drinking levels were measured using the Alcohol Use Disorder Identification Test. Non-consensual sexual experiences were measured using the Sexual Experience Survey. Univariate and multivariate analyses were undertaken using chi square and backwards stepwise logistic regression respectively.ResultsA third of respondents had experienced alcohol-related non-consensual sex. Male and female students differed in the importance they gave to cues in deciding if a person wished to have sex with them and their understanding of the law of consent. 82.2% of women who had experienced alcohol-related non-consensual sex were hazardous drinkers compared to 62.9% who drank at lower levels (P < 0.001). Differences existed between men and women, and between those who had and had not experienced alcohol-related non-consensual sex, in relation to assessments of culpability in scenarios depicting alcohol-related intercourse. A third of respondents believed that a significant proportion of rapes were false allegations; significantly more men than women responded in this way.ConclusionsAlcohol-related coerced sexual activity is a significant occurrence among students; attitudinal and knowledge differences between males and females may explain this. Educational messages that focus upon what is deemed acceptable sexual behaviour, the law and rape myths are needed but are set against a backdrop where drunkenness is commonplace.

A comparison of expert evidence and judicial directions to counter misconceptions in child sexual abuse trials

Studies on the influence of expert evidence and judicial instructions in child sexual abuse (CSA) cases have produced mixed outcomes. Using repeated measures, we tested the effectiveness of expert evidence and judicial directions in challenging common misconceptions about children’s memory and responses to sexual abuse. A CSA Misconceptions Questionnaire was administered to 118 psychology undergraduates who later served as virtual jurors in a simulated criminal trial. Specialized CSA knowledge was provided by a psychologist or via judicial directions. Expert evidence had two levels: clinical versus scientific testimony. Timing of judicial instructions had two levels: directions presented before the child testified versus during the judge’s summing up. In a fifth control condition, no specialized CSA information was included. After reading a trial transcript, mock-jurors assessed witness credibility, rendered verdicts and again completed the CSA Misconceptions Questionnaire. All four interventions significantly increased jurors’ CSA knowledge. The more they knew, the more likely they were to convict. Perceived victim credibility fully mediated the effect of CSA knowledge on verdict: information presented via expert testimony or judicial directions enhanced perceptions of victim credibility, which in turn increased convictions. Conviction rates were significantly higher in response to expert testimony from a clinical psychologist and a judicial instruction provided in the trial summation. These results are promising for courts and policy-makers grappling with low conviction rates in CSA jury trials.

“Too Drunk To Say No”

In recent years, both the media and the government in the UK have been increasingly preoccupied with the problem of rape involving alcohol. For example, in order to increase low conviction rates, the government proposed, yet eventually rejected, reforms equating drunkenness with incapacity to consent to sexual intercourse. Research evidence, for example studies by Benedict (1992) or Finch and Munro (2005, 2007), suggests that conviction rates are influenced by an interplay of cultural discourses and legal arrangements. This article uses discourse analysis to identify and critically examine the major discourses which are produced around rape involving alcohol in one major daily newspaper, the Daily Mail. This conservative paper disapproves of women's binge drinking and is unsympathetic to victims of rape involving alcohol. The analysis indicates that its discourses deprecate and delegitimise victims by a) reinvigorating and refashioning old rape myths, b) re-gendering rape involving alcohol as a problem of female drinking rather than male sexual violence, and c) masquerading women's responsibilities and risks as rights. These findings open up the possibility for research into the popularity of these discourses across contemporary culture and their impact on cultural consumers, including those involved in legal decision-making processes.

Convinctions in sexual assault cases

Beata Cybulska (JRSM 2007;100;321-324) has given a valuable insight into aspects of sexual assault, especially with respect to the low conviction rate for rape. I am frequently called on to assess the validity of DNA data and analytical evidence for alcohol and drugs in such cases. Regrettably, it is clear that the low conviction rate occurs for a variety of reasons, not least the delay in the victim making a complaint to the police. But even with fairly rapid responses, cases fail for the following reasons: The victim has washed or destroyed items of clothing or bed linen; The victim has bathed or showered following the assault; The victim was too intoxicated to remember many significant details of the events that occurred. A very important point that must be considered is that after being sexually assaulted and/or raped the victim often feels traumatized, debased, contaminated and unclean and may develop a pathological desire to remove and wash away the effects and feelings from the sexual encounter. In many respects any significant increase in convictions for sexual assaults and rapes will only come about if it is possible to get the message across and widely accepted that women and men who are subjected to such offences should: complain quickly to the police, not wash or bathe before being medically examined, retain all items of clothing and bed linen, and try to provide as much fine detail about the assailant, the venue and the circumstances as possible. That is asking a great deal from a person who has undergone such an indignity, but the greater the information available the better the chance of a conviction being possible.

Review: Peace at Any Price

PEACE AT ANY PRICE How the World Failed Kosovo Iain King and Whit Mason Ithaca: Cornell University Press, 2006. 328pp. US$27.95, cloth (978-0-8014-4539-2).The United Nations interim administration mission in Kosovo (UNMIK) recently entered its ninth and possibly final year as the primary governing authority in Kosovo. Since June 1999, the UN administration has overseen economic, social and political development in the disputed territory, and sought to promote a transformation of the former zone of conflict into a peaceful and multi-ethnic society. Iain King's and Whit Mason's book assesses the performance of the international community in achieving this aim, and presents a comprehensive, illuminating, and often scathing account of the UN's efforts to date.Both authors have close connections to Kosovo, each having held senior political roles within UNMIK, and their insider experience informs the text throughout and adds credibility to their account. From the title of the book onwards, it is clear that this is not a defence of UNMIK, but rather a critique. The authors charge the UN administration, and the international community behind it, with many failings-failing to understand the nature of the conflict between Kosovo Serbs and Albanians, failing to identify the correct solutions, and ultimately failing to fulfil its aim of transforming Kosovo into a multi-ethnic, law-abiding democracy. In particular, the authors allege that UNMIK lost an opportunity to change Kosovo's political culture by neglecting the available levers of soft power, especially in the spheres of education and the media. UNMIK, the authors allege, not only failed to transform and it never even properly tried.Most of this compact but thorough book is taken up with a review of the administration of Kosovo, structured both chronologically and thematically. The four central chapters deal with four separate phases in the administration from 1999 to 2006. Each examines progress in a range of areas, including law and order, security, political developments, hearts and minds, and the economy. The authors locate the roots of many of the ongoing problems in contemporary Kosovo in the first phase of administration, between June 1999 and October 2000. During this period, international authorities displayed a reluctance to clamp down on hardliners, and in particular on the Kosovo Albanian nationalists that reacted to the withdrawal of Serb troops from the territory by initiating a prolonged campaign of revenge violence on the minority Serb community within Kosovo. Much of this revenge violence went unpunished due to international preferences for stability rather than justice, and the low conviction rates contributed to a sense of impunity that the authors suggest was never eradicated in subsequent years. Furthermore, the departure of large sections of the Serb community at the time served to set back the project of a multi-ethnic Kosovo. The second consolidation phase entailed a shift from humanitarian concerns to political development, and included Kosovo's first elections under UNMIK, as well as the establishment of new institutions of self-government. But it was also a period in which many of the physical challenges had been overcome, and the political challenges that remained required changes in local behaviour that UNMIK was unable to achieve. This gave way to a third phase of confrontation and stagnation, where the gap between expectations and the reality on the ground led to local frustration with the international mission. Despite a range of UNMIK initiatives, there was little progress towards resolving Kosovo's political status due to continued divisions within the international community. The dire state of the economy further fuelled local dissatisfaction. This stage culminated in the infamous March riots of 2004, when Albanians turned on Serbs and the international authorities were unable to assert control during two days of violence and looting that left 19 dead, hundreds of Serb homes burnt, and thousands of Serbs displaced. …

Sexual assault: key issues

Sexual assault is both a common and a very serious crime which is investigated by the police with an intensity second only to that of murder. In total, 62 081 sexual offences were recorded by police in England and Wales in 2005/2006, of which 14 449 were offences of rape1—representing a significant increase in reporting compared with the 1842 such reports in 1985.2 In 2006 a 3% increase in women reporting rape (12 903 to 13 331) was noted, compared to a 2% decrease among men (1139 to 1118). In spite of the overall increase in reporting over the years, the conviction rate for rape remains persistently low: under 6% in England and Wales and only 4% in Scotland.3 Many blame an ambivalent public attitude to rape, as suggested by the Amnesty International report of November 2005,4 which showed that a third of people believe that a woman may be partially or completely responsible for being raped if she has behaved flirtatiously, and that 25% of the 1000 people surveyed believed a woman is at least partially to blame if she has worn revealing clothing or been intoxicated. Most people surveyed had no idea how many women were raped every year in the UK. The true reasons for low conviction rates in rape cases are complex and cannot be explained by this ‘rape myth’ alone. The real problem lies in the high attrition rate, with only 14% of reported cases resulting in trial proceedings. About 9% of cases are classified as false allegations, the majority of which are reports from within the 16-25 age group. One third of reported cases fail to proceed past the investigation stage due to ‘evidence issues’ or ‘victim credibility’. Another third are lost when the victim later withdraws from a case for fear either of being disbelieved or of the criminal justice system or court process. The fact that majority of assailants are known to the victims and that a large numbers of cases are associated with drinking alcohol completes the picture.3,5-7

Sexual assault: key issues

Sexual assault is both a common and a very serious crime which is investigated by the police with an intensity second only to that of murder. In total, 62 081 sexual offences were recorded by police in England and Wales in 2005/2006, of which 14 449 were offences of rape1—representing a significant increase in reporting compared with the 1842 such reports in 1985.2 In 2006 a 3% increase in women reporting rape (12 903 to 13 331) was noted, compared to a 2% decrease among men (1139 to 1118). In spite of the overall increase in reporting over the years, the conviction rate for rape remains persistently low: under 6% in England and Wales and only 4% in Scotland.3 Many blame an ambivalent public attitude to rape, as suggested by the Amnesty International report of November 2005,4 which showed that a third of people believe that a woman may be partially or completely responsible for being raped if she has behaved flirtatiously, and that 25% of the 1000 people surveyed believed a woman is at least partially to blame if she has worn revealing clothing or been intoxicated. Most people surveyed had no idea how many women were raped every year in the UK. The true reasons for low conviction rates in rape cases are complex and cannot be explained by this ‘rape myth’ alone. The real problem lies in the high attrition rate, with only 14% of reported cases resulting in trial proceedings. About 9% of cases are classified as false allegations, the majority of which are reports from within the 16-25 age group. One third of reported cases fail to proceed past the investigation stage due to ‘evidence issues’ or ‘victim credibility’. Another third are lost when the victim later withdraws from a case for fear either of being disbelieved or of the criminal justice system or court process. The fact that majority of assailants are known to the victims and that a large numbers of cases are associated with drinking alcohol completes the picture.3,5-7

Female Rape—An Ongoing Concern: Strategies for Improving Reporting and Conviction Levels

This article examines the reasons behind the low rate of reported female rape, the failure of rape cases to progress to trial and the unacceptable low conviction rate. There is a multitude of research in this area and the aim of this article is to consolidate this research rather than provide new research on the issues. Following this, the measures that have been introduced to improve reporting and conviction rates are identified and explained. These range from substantive and evidential changes in the law, through to the implementation of practical policy. The article assesses the impact and effectiveness of these measures on the relevant rates, by drawing on the available Law Commission, Home Office and academic research. Current suggestions and strategies for increasing the relevant rates are then examined. The article concludes with the author's own suggestions for improvement.

"It Is His First Offense. We Might As Well Let Him Go": Homicide and Criminal Justice in Chicago, 1875-1920

At the start of the twentieth century, political and legal reformers initiated far-ranging changes in the American criminal justice system, particularly in cities such as Chicago, where violent crime rates were high and where the Progressive movement was especially influential. Yet law enforcers rarely convicted killers, more than three-fourths of whom went unpunished. Even in homicide cases in which the identity of killers was certain and the police made arrests, jurors typically exonerated or acquitted killers. Using police and court records and tracing the legal outcomes of nearly six thousand cases, this essay analyzes patterns of conviction in Chicago homicide cases between 1875 and 1920 and argues that a blend of gender-, race-, and class-based notions of justice trumped the rule of law, producing low homicide conviction rates during a period of soaring violence.

Police Training and Management Impact Sexual Assault Conviction Rates in Boston

This study attempts to explain low sexual assault conviction rates in Boston. Patrol officers are generally first-responders to emergency 911 call-ins and their task is to secure the crime scene. But often sexual assault goes unreported and first-responders can be misguided by victims as to the extent of their victimisation. However, when sex offenders are apprehended, the case is generally dismissed because of a lack of evidence or a credible witness. Do law enforcement officers intentionally overlook evidence that could lead to detection and conviction of sex offenders? The hypothesis tested was that sexual assault training and supervision styles affect the likelihood of first-responder attempts to identify and secure sexual assault evidence. To test this theory, 319 Boston officers were surveyed and eight were interviewed. The hypothesis was supported. One implication arising from the findings is that training and supervision styles affect sex offender detection and conviction rates. It is recommended that total quality management styles replace the hierarchy of command.

The Transportation of Chinese Convicts from Hong Kong, 1844-1858

Between 1844 and 1858 a total of 576 convicts, nearly all of them Chinese, were transported from Hong Kong to other British colonies. For the government this was a convenient, deterrent and inexpensive punishment in a jurisdiction troubled by high crime and low conviction rates. For the convicts the experience was a varied one: some served out long sentences with little prospect of return; others rebelled, escaped, or killed themselves. In 1858, when the last destination closed its doors to Hong Kong's transports, the colony was forced back on its own resources: with a prison dangerously overcrowded during a period of war and disorder, it faced a penal crisis similar to that experienced in England 75 years earlier. This article explores the policies, practices and experiences of transportation from early British Hong Kong and links the demise of transportation with controversial revisions of the colony's penal policies in the 1860s.

Prostitution and Trauma in U.S. Rape Law

ABSTRACT Although the rapes that prostitutes suffer are especially frequent and violent, prostitutes rarely report having been attacked to police and, when they do, those reports rarely end in convictions of their attackers. One reason for this low conviction rate is the admission of evidence of the complainant's prior prostitution at trial to prove that she consented to the sexual intercourse alleged to have been rape. Some courts hold that such evidence is admissible when the defendant claims that what happened on the instance in question was an act of prostitution. Other courts hold that it is inadmissible unless it proves the complainant's bias or a motive to fabricate a claim of rape. Still other courts hold that it is inadmissible unless it reveals prior threats to retaliate against a customer.

Forensic evidence collection for sexual assault: a South African perspective

The incidence of rape in South Africa is approximately 300 per 100 000 women, with a conviction rate of approximately 10% of cases. Poor medical evidence is responsible in part for the low conviction rate. The district surgeon system that was responsible for medico-legal procedures and examinations is being phased out which has left the examination of sexual offences to all state employed medical practitioners. Lack of training and expertise make the present system untenable. There are several proposals being considered and implemented in the Western Cape Province to address this deficiency, which include the formation of ‘one-stop centers’, training, and complete evidence collection kits.

Prosecution and Conviction of the Injured Intoxicated Driver

Previous studies have reported low conviction rates for drunk drivers injured in motor vehicle crashes and transported to the hospital. The purpose of this study was to evaluate this rate during a recent period and to investigate the variables that predict alcohol-related convictions for injured drunk drivers admitted to our hospital. A retrospective review of medical records from January 1991 through May 1997 identified 71 patients who were legally intoxicated drivers injured in motor vehicle crashes. Court records, police reports, and driving records were also obtained. Overall, 51% of the drunk drivers were convicted of alcohol-related offenses and 32% escaped without any conviction. Blood alcohol level and a police officer's estimation of whether the driver had been drinking were significant predictors of an alcohol-related conviction. Age, Injury Severity Score, a police officer's estimation of injury, and the number of people or cars involved in the crash were not significantly associated with legal outcome. Although this study shows an important increase in alcohol-related conviction rates, responsibility for further progress will depend on the medical community, law enforcement agencies, and the judicial system working together.

Alcohol use, driving records, and crash culpability among injured motorcycle drivers

Alcohol use, driving records, crash culpability, and crash conviction rates for 165 injured motorcycle drivers (MTCDs) were studied. Of the 165 MTCDs, 53.3% tested positive for alcohol (BAC+). Culpability determinations ( n = 150) revealed that 83% of BAC+ and 46% of BAC- MTCDs caused their crashes ( p < 0.001). Driving records ( n = 145) revealed the following prevalence of one or more convictions for BAC+ and BAC- MTCDs: impaired driving (29% vs. 7%, p < 0.001); speeding (74% vs. 58%, p < 0.05); and reckless driving (68% vs. 44%, p < 0.002). Of the surviving culpable impaired MCTDs ( n = 48), 16.7% received crash-related convictions, 12.5% received alcohol-related convictions. The reasons for the low conviction rates are probably multifactoral.

Judicial rape

This article is based on participant observation of ten rape trials at the Old Bailey, the Central Criminal Court in London, in 1989. In only two trials was the defendant found guilty of rape. Reasons for the very low conviction rate are analysed and criticisms of the present adversarial system of justice drawn out. At present the victim is put on trial, her reputation is attacked, her credibility doubted. The ways in which the dice are loaded against her are discussed, and proposals for redressing this imbalance are put forward. In particular, the inadequacy of the Crown Prosecution Service in countering the allegations made against the complainant, the uncritical view of what constitutes corroboration, the misuse of forensic evidence, and the failure of the Sexual Offenses (Amendment) Act are reviewed. Recommendations for reform are put forward with particular reference to the implementation of changes in the law in Canada and Western Australia.