In the UK, we are witnessing the “decriminalisation of rape” and as a result, more and more women are having to find alternative ways to access justice. In the year to September 2021, police in England and Wales were told of 63,136 allegations of rape, but only 820 alleged rapists were charged: the prosecution rate for rape was just 1.3%.
As a result, more and more rape victims are turning to the civil courts for some semblance of justice. Unlike in the criminal courts, those found to be rapists do not receive a criminal record or time in jail. Instead the judge can issue a “finding” of rape and issue a financial “award” for victims (although enforcing an order for damages can be an uphill struggle against a defendant who is, or claims to be, impoverished). In a criminal court, the state must establish that the jury “are satisfied so that they are sure”, the defendant raped the complainant, but in the civil court, the standard of proof is lower, the claimant must prove the defendant raped her on the balance of probabilities (51% likely).
The process is not without hardship. The burden is on a traumatised victim to bring a claim within a narrow time limit, pay for it and wait (sometimes) years to conclude. Some victims don’t have any resources or power to access the civil courts. Victims do not have the same legal powers as the police to gather evidence.
Despite the difficulties, a finding of rape by a judge can give closure to victims. After Ms M’s rapist was acquitted at a Scottish criminal trial (that she described as “abysmal”), she won £80,000 in damages against him at a civil trial in 2018. She said: “It was never about the money, it was about the law acknowledging what Stephen Coxen did to me was wrong and against the law.” These victories, however, are few and far between, as some perpetrators buy their way out of justice by settling the claim and paying the victim off, before it even reaches a trial. The data suggests a general settlement rate of 96% to 97% of civil claims in UK county courts.
In 2011, Denise Clair reported two former Scotland football players, David Goodwillie and David Robertson, to the Scottish police for rape but the criminal case was dropped due to insufficient evidence. In a civil claim in 2017, she won a finding of rape and £100,000 in damages. Such an amount would be a drop in the ocean for the rich and powerful.
Some women are instead turning to private prosecutions (when a private individual rather than the CPS takes a case to criminal court). Unlike civil claims, private prosecutions result in the same criminal punishment upon conviction as public prosecutions. But the director of public prosecutions (DPP) has the power to take over a private prosecution and either continue it or end it, and in some cases, the private prosecutor must seek the consent of the DPP or attorney general before commencing proceedings. The average cost of a private prosecution is about £8,500.
It’s not just rape complainants looking for alternative justice: domestic abuse victims are also taking matters into their own hands. Earlier this year, a husband who, among other things, failed to grant his wife a Jewish religious divorce was convicted of coercive or controlling behaviour after his wife brought a private prosecution against him. While it is positive that victims have the power to bring private prosecutions, many survivors do not have the resources to do so. The state has a duty to bring perpetrators to account rather than putting the onus on victims.
The philosopher Kate Manne has described a culture of “himpathy”, which is inappropriate or disproportionate sympathy towards male perpetrators of sexual violence over their female victims, who are erased in the process. Himpathy means worrying about his bright future rather than her suffering. She is right. In one case, in which a soldier was accused of raping a woman he met in a Dundee nightclub, the victim claimed that the jury in the criminal trial were told to think about the impact their verdict would have on his military career. When the victim brought a claim in the civil court, where there was no risk of a criminal record, the judge made a finding of rape.
There is a genuine question as to whether rape has become decriminalised in part because society doesn’t believe the crime justifies “ruining” a rapist’s life. Rape should be treated as seriously by the state as terrorism: it is an invasion of (usually) women’s autonomy by men using domination. Instead it has become a “problem” that can potentially be solved with a chequebook.
Charlotte Proudman is a barrister specialising in violence against women and girls
