Article by Michael Portillo on rape for The Sunday Times, 4 February 2007.

There are good reasons why a woman raped while out on a date could feel discouraged about reporting the crime. Last week an expert report confirmed that only one in twenty allegations of rape leads to a prosecution. Shortly BBC television will screen a highly realistic simulation of a rape trial. It will underline that in court the woman’s reputation is on the line. At the end, her private suffering may be exacerbated by public humiliation.

The report from Her Majesty’s Inspectorate of Constabulary and the Crown Prosecution Service found that a woman who complains of rape can encounter problems in the handling of her case at every stage. For example, she may face “inordinate delay” in being attended to, perhaps waiting in areas of police stations that are of “poor quality” with too few trained staff to help her.

The forensic medical examiners, most often general practitioners, have been left out of the “training loop”, says the report. One woman, following her allegation of rape, was given the samples taken from her body by the examining doctor, and told to take them to the local hospital. Samples entrusted to the key witness of course become inadmissible as evidence.

For years police forces have been urged to train officers to deal sympathetically and effectively with those who allege rape. Some have done so. One woman, whose recent case involved more than one force, said that the Metropolitan Police could not be faulted, but she feared for victims dealing with other constabularies.

That same woman was appalled by proceedings in court. She had met her barrister for the first time only minutes before the case began. She complained that she was treated simply as a witness, not as (potentially at least) a victim. Her barrister recommended accepting the defendant’s guilty plea to a lesser charge. But she later felt betrayed, because by admitting assault the defendant avoided being placed on the sex offenders’ register.

We should of course be cautious about the statistics. The one-in-twenty figure compares allegations with convictions. It is not a ratio that we consider relevant with most categories of crime. The ratio is down from one-in-three thirty years ago but that could be explained by women’s increased willingness to come forward. Or it might be because there are more frivolous complaints. Certainly binge drinking has become more prevalent.

Despite that, complacency about the rape statistics seems inappropriate. Only three out of ten cases that reach court lead to a conviction, even though the Crown Prosecution Service must have thought that there was a good chance of one. One woman barrister told me that she had defended fifty alleged rapists, of whom only one was convicted. Of the others she was convinced of the innocence of just two.

The report does not recommend changes to the law. It does not back those who want to protect women who claim that though conscious they were too drunk to withhold consent, and nor should it have done. It makes twenty-one recommendations for improved procedures, many of which are about spreading existing good practice. If alleged victims are seen more promptly by people who know what they are doing, then better quality evidence will be collected.

The BBC television programme The Verdict simulates a trial in which a girl accuses a professional footballer and two others of rape in his hotel room. The alleged victim and the defendants are actors, but the judge, barristers, DNA experts and police officers are “real”.

The jurors are “celebrities” and I am one. The programme is less naff than that might suggest. We twelve behave much like other juries. We feel a burden of responsibility (because the proceedings are so realistic). We struggle to contain our emotions and to do our job properly, judging the evidence and nothing else. We bring into the jury room a host of prejudices. With luck in real juries those balance each other because citizens are selected at random. Some of the television jurors are well enough known that those prejudices will be apparent to the viewers.

Like all juries we are faced with two contradictory versions of events. We must use our experience and judgment to believe either the accuser or the accused. But even long experience and good judgment would not guarantee that you could tell truth from falsehood. Also, the judge asks a jury not, as I had expected, to reach a decision that is “beyond reasonable doubt” but one that we are “sure” about. That sets the bar high.

I was surprised how ambiguous forensic evidence can be. I have watched too much CSI, a drama series in which all villains leave a definitive trail of DNA that proves their guilt. In our “trial” the girl has gone to the police late, so that vital clues may have been lost. With the defence claiming that there was consensual sex, DNA evidence of sex is unremarkable. Evidence of the girl’s physical injuries might be more telling. But their cause and significance are hotly disputed between expert witnesses.

In rape cases, without corroboratory evidence there will be no trial let alone a conviction. In a real case similar to our simulated trial, two professional footballers and two others were accused by a seventeen-year-old of rape at London’s Grosvenor House Hotel in 2003. But the CPS did not charge them because there was little prospect of conviction.

In the television case the girl’s evidence is harrowing. She fights for breath and for words as she sobs out her account of what the men did to her. But the defence suggests that she has made it all up. It disputes her claim that she was a virgin before the incident. If she can be proved to be lying on that point (no matter that it is irrelevant to whether a crime occurred and none of our business) her credibility as a witness will be damaged.

Once we adjourn to the jury room, the twelve of us must also ask if she is lying. We must hypothesise that she has consented to sex and later regretted it, perhaps made the allegations because her behaviour was about to become public and so known to her strict father. Maybe she invented it all as a story to sell to the press. Even if we are inclined to believe her, we have to decide whether we are “sure” about it, because the lives of the men will be severely blighted if we find them guilty.

Logically we could be “not sure” about their guilt, without necessarily believing the girl to be a liar. But it is unlikely that any victim would see it that way. Others too might think that a not guilty verdict implied that she had perjured herself, fabricating a story that could put innocent people in jail. A not guilty verdict leaves her exposed to innuendo.

So any woman who goes to court has not only to relive her ordeal (if she is telling the truth) but also to subject herself to intrusive inquiries about her private life. She will be accused of mendacity by the defence. She may end up open to being thought truly wicked. Seven out of ten trials finish that way.

If the new report on how the authorities handle allegations of rape results in cases being handled more sympathetically and competently that is welcome. There have been plenty of such findings before, of course, and perhaps each one leads to some improvement. But even if procedures get better, conviction rates will remain low. Date rape is a crime that usually occurs after two people have consented to be together in private. For that reason it is difficult to prove. That reality cannot be wished away.

The report does not call for lower standards of proof. The government should not be tempted to change the law because that would create new injustices. The wretched truth is that women who take their cases to court take a big risk. The odds are against them. There is little we can do about it.