After yet another chapter in one of Britain’s most high-profile rape cases, Chesterfield football club’s chief executive gave his own verdict: “We can now all move forward and focus on football.”
Can we?
This case has raised serious questions about the justice system in rape cases and shown that while those victimised by sexual violence might be encouraged to report it, their path to justice is not likely to be an easy one. The fact that the law is willing to give weight to a victim’s sexual history puts everyone who reports at risk of having their personal lives invaded in a search for “evidence” – with only a slim prospect of a conviction for their attacker.
Among the intense debate of the last week, some have asked whether we can learn anything from the approach of the Nordic countries – the “world leaders” on gender equality. In most of the Nordic countries, victims’ sexual histories are not considered relevant evidence in rape cases and generally victims have the right to have their own lawyer appointed. Importantly, in Finland, Sweden and Norway, rape complainants are also extended certain procedural rights which give them a much stronger legal position in relation to the criminal justice procedure. That allows them to partly participate in the criminal justice process, as opposed to only having the status of a witness.
However, even these countries have not cracked the code. Along with the UK they also suffer from low conviction rates and some of the same biases. Victims’ medical histories can be subject to legal scrutiny, and offenders in Sweden are more likely to be convicted if their victim belongs to a higher social class. In Denmark, the alleged perpetrator’s alcohol consumption is likely to work in his favour, but if the victim was under the influence it works against her.
In Iceland, charges are significantly less likely to be issued if the victim was intoxicated when the rape took place. And cases that are reported within 24 hours to the police are more likely to proceed, even though we know that it normally takes victims more time to come to terms with what actually happened.
Indeed, some Nordic countries are looking to the UK for better practices. Sweden is likely to become the first Nordic country to discard its current definition of sexual violence, which focuses on the use of force, and adopt a consent-based one. That focus is far from perfect and is not necessarily likely to increase conviction rates, given the high burden of proof in criminal cases.
However, the message is considered important, and some hope that when coupled with a gross negligence provision – modelled on Norwegian law – a new legal definition could lead to more convictions. That way the prosecutor would not need to prove intent but to establish that the accused acted in an extremely careless manner.
As for England and Wales, report after report (after report, after report, after report) has outlined how the justice system can be improved, and how better to address the context in which violence against women takes place. It is time for politicians to translate words into deeds.
Victim’s rights to specialist support services must be secured, irrespective of whether they report or not. Consideration should also be given to strengthening victims’ procedural rights – including the right to a victim lawyer – in an effort to ensure a genuinely fair trial. A victim lawyer could, for example, challenge sexual history evidence or aggressive cross-examination from defence lawyers. This is where the Nordic countries can offer a useful example.
But even while we work towards an improved criminal justice system, we should not confine ourselves to only measuring justice in terms of conviction rates. The criminal justice system provides little incentive for accused persons to take responsibility for their actions – something reflected, perhaps, in the number of perpetrators. It is a hard fact to face, but there are close to 100,000 rapes in England and Wales alone every year. That number of perpetrators, who are predominantly men, demonstrates a serious structural failure in preventing – and responding to – sexual violence.
We need to resolve the injustice of rape by tackling it from different angles. Let’s stop the harmful socialisation of our children on the basis of gender stereotypes, and halt the hypersexualisation of women in the media. Let’s give our young people access to adequate sex and relationships education rather than leaving them alone facing complex online and offline realities. And let’s make sure we are there for victims and survivors, not only when they tell us they were raped, but also when they tell us who raped them.
So let’s step up our game. The Women’s Equality party was founded to do exactly that: to help to bring an end to the gendered structural inequalities, which are both the cause and the consequence of rape and other forms of violence against women and girls.
Then, when we have made some real progress, we can all get back to the football.
• This piece was co-authored by Hildur Fjóla Antonsdóttir, a PhD candidate at the Sociology of Law Department at Lund University. Her PhD project focuses on the meaning of justice for people who have been subjected to sexual violence and its implications for different justice strategies
