Challenges in Prosecuting Sexual Offences

By Levon Curtis.

Reading time: three minutes

In April 2024, The Student Lawyer’s D&I team are marking the 23rd anniversary of Sexual Assault Awareness Month (SAAM). This article is part of a series of work that raises awareness and educates about SAAM.

Discussing the challenges that are faced when prosecuting sexual offences.

Sexual Assault

Sexual assault cases present unique challenges for prosecutors, often characterised by evidentiary hurdles, victim credibility concerns, and prevailing societal biases. In the UK, prosecuting such offences demands a delicate balance of legal expertise, sensitivity, and strategic manoeuvring.

This article will discuss:

1. The landscape of prosecuting sexual offences in the UK;
2. Exploring the challenges faced by prosecutors focusing on evidentiary issues; and 
3. Misconceptions and recent legal developments.

Evidentiary issues

The nature of sexual offences often leads to a lack of physical evidence. As the CPS states “the legal and evidential requirements needed to effectively, efficiently and fairly proceed with a rape prosecution can be significant to overcome”. Sexual offences often occur in a private place between two individuals with little or no corroborating evidence.

Therefore, it is difficult for prosecutors to establish and prove the crime to the jury. The barrier in establishing sexual offences is often one that leads to many victims not pursuing charges against their assaulter.

To find out about the legal protections available for survivors, read this article: ‘Legal Protections for Survivors: Safeguarding Rights and Recovery | The Student Lawyer’

A further evidentiary issue can occur through the psychological response of the complainant. Often the neurological response to the trauma of rape and sexual assault can impair a complainant’s ability to give a clear account of the event.

Another response seen in many complainants is self-blaming and having contact with the perpetrator to minimise the chance of the abuse occurring again. To many, this can be seen as counter-intuitive and impacts the credibility of the evidence given by the complainant. This needs to be combatted by erasing sexual offence myths and stronger protection of the complainant’s evidence.  

Sexual Assault Misconceptions 

Misconceptions surrounding sexual assault can impact the credibility of complainants to the jury. Combating societal misconceptions can endeavour to stop implicit biases within juries.

Myths such as society believing that:

• If someone is drunk then they should not complain if they get assaulted;
• Men cannot be assaulted and
• If someone consents once then they’ll always consent are all dangerous myths for a jury to believe.

This is because it can lead to the acquittal of offenders based on untrue beliefs by juries. This is a societal issue that needs to be combatted through extensive education to correct the views to ensure a much more fair and balanced trial.

Prosecutors must overcome the issues surrounding jury bias due to misconceptions surrounding sexual assault during trial, to secure a prosecution. Judges can also help in addressing these issues by urging the jury to remain objective, impartial, and reasonable and act in accordance with the law, rather than misconceptions. This can help to ensure that more people can step forward due to society no longer having negative connotations, whilst ensuring more offenders are prosecuted.

More about sexual assault myths can be found here.

Legal Developments

Since the prominence of the #MeToo movement in 2017, sexual assault in the workplace has had heightened awareness. This led to the 2018 Sexual Harassment in the Workplace Report, which sought to put sexual harassment at the forefront of the government’s agenda. How much this has been on the agenda can be debated, however, there has been a clear shift in public attitudes.

To find out more about sexual violence in the workplace, read this article: ‘Addressing Sexual Violence in the Workplace’

The Government concluded their end-to-end rape review in 2021, with a key finding that the prevalence of rape and sexual violence had remained steady in the last five years, but since 2016/17 there has been a rape decrease in prosecutions. This prompted them to ask the Law Commission to examine the trial process and consider the law, guidance and practice relating to evidence in sexual offences. Which will be reported on later this year. Combating the low rate of prosecutions and evidentiary issues is on the Government’s agenda.

Despite no major reforms to legislation, this may be forthcoming with many reports, like the Law Commission’s, concluding their findings. Better aligning sexual offences to modern society, such as through definitions of rape and offences, may help to ensure a higher conviction rate and more people coming forward and reporting the crimes. Further, changes to court proceedings and evidentiary review may be needed to combat the lack of prosecutions and ensure more people report on the crimes committed.

Conclusion

This article has discussed two of the main issues that are faced by prosecutors when prosecuting sexual offences. It is also clear that we are currently in the process of reporting on what future reforms may look like. However, nothing has been done currently to combat the staggering figures that are seeing many offenders not being prosecuted for their crimes.