Rape and Sexual Assault by penetration: The Criminal Justice System
It should be noted that this information is accurate for how rape and sexual assault by penetration are dealt with inside the Metropolitan police area. The criminal justice process can be long and confusing, you may find having an advocate that can provide information and support along that journey useful. For local advocacy support find your local Rape Crisis centre here https://rapecrisis.org.uk/centres.php or call the National Helpline free on 0808 802 9999
To watch four short films showing the journey of a survivor accessing ISVA support, reporting to the police, and giving evidence at court please see our #BreakTheSilence films.
Some legal definitions to start:
Rape is the penetration of the vagina, anus or mouth of another person with a penis, without the person’s consent, where the perpetrator does not have reasonable belief there was consent.
Sexual assault is defined as: a person intentionally penetrating the vagina or anus of another person with an object, or part of the body other than the penis, without their consent, and without having reasonable belief in consent.
Reporting an offence to the police:
It is important that it is your decision to report and you have not been pressured into it. In England and Wales there is no time limit on reporting, you can go to the police at any time after the crime has taken place. However, if you have been raped or sexually abused recently there may be evidence such as DNA that would be useful to an investigation. This evidence can be gathered at Sexual Assault Referral Centres called The Havens
If the assault has just happened then call 999, if it has taken place some time ago call 101 which is the police switchboard and you will be put through to your local force. They will take some details from you and arrange for a uniformed officer to take your initial statement, this will either be in your home or in a police station, or if you have an advocate this may be able take place with them in a Rape Crisis centre. You can request to give this account to a female officer when you call 101.
When the officer is taking the initial statement they will ask you what happened, where and when it happened and who the perpetrator was if you know them, they will also ask for a description. At this stage the police do not need to know every detail of what happened but they do need to know which crime has been committed so may ask you to use clear language to describe what happened such as penis or vagina. They do not want to embarrass you, it is so that it is clear to everyone what has happened.
From this point the uniformed officer will put your initial statement on the crime reporting system and it will be handed over to the specialist sexual offences team. It is here that a specially trained Sexual Offences Investigative Techniques (SOIT) officer will be allocated to your case and will be the point of contact throughout the case.
The next stage of the process is the full account which is usually taken in a police station. Again, arrange for an advocate or friend to accompany you if it would help you to feel more confident and comfortable. This is usually taken in video form where an officer will ask you to give an account of your experiences and then ask you questions about any details they need. This conversation will be audio and visually recorded. If the case ever goes to court this video will be played as part of your evidence. If you do not want to do a video recorded interview you can do a written statement, these often take longer to do so may be done over a couple of sessions with the police.
This is a particularly difficult time because your statement has to include as much of the event as you can remember and it is often the first time you will have spoken about it with such a level of detail. If there is something the police ask that you don’t remember just say so, it is totally understandable not to remember everything
When you have given your full account the police investigation can begin. The first step is usually to find and question the perpetrator (the police will call him a suspect) and take a statement from him asking him about the events and his actions. The police will decide whether the perpetrator can be arrested. In most cases he will then be bailed until a later date and the police will continue with the investigation. There would usually be bail conditions in place including him being prohibited from contacting you. In some cases the perpetrator will be remanded (held in prison) while the investigation takes place.
If you do not know the perpetrator the police will try to find him. You may be asked to identify him from a selection of photos or video that also show other people who are not suspects.
The investigation may include the police gathering CCTV and DNA evidence if it is still available, talking to friends or family that were aware of what happened or anyone you have spoken to about your experiences. They may also gather medical records and anything they feel is relevant. The police will also take your mobile phone to download any messages or contact that may be relevant.
This process can take up to a year and it is important to have support in place to help you to sustain yourself through this process – waiting for decisions and updates can be tiring and frustrating and every survivor finds different ways to cope.
When the police have completed their investigation the detective in the case will write up a report and give it to a senior officer, it is here that the evidence is first tested. This senior officer will decide whether there is enough evidence for the case to go to the Crown Prosecution Service (CPS) or not. If the officer believes there is not enough evidence the case will be “no further actioned”, NFA’d. This is not because the police do not believe you, but because they don’t think there is enough evidence to move forward. If this happens you can:
- Ask for the case to be reviewed under the Victim’s Right to Review scheme through the detective on the case
- Have a face to face meeting with the officers that made the decision so these reasons can be explained to you
- Have these decisions set out in writing
If the police think there is enough evidence for the case to be considered for trial they will send it to the Crown Prosecution Service (CPS). It is here that a specialist lawyer will decide whether the perpetrator will be charged with one or more offences and stand trial.
The lawyer receives all the evidence collected by the police and has to ask him or herself two questions when making this decision.
- Is there enough evidence for there to be a likely prospect of conviction by a jury?
- Is it in the public interest to bring this case to trial?
The evidence test is a high bar to jump as the system here says that a jury must be certain “beyond all reasonable doubt” in order to find someone guilty, and that is difficult when they weren’t there. This is why the decisions have to be based on evidence because that is what the jury will see. If it is a serious offence it is usually in the public interest to bring cases to trial but this will only be considered if there is enough evidence.
If the CPS lawyer decides there is not enough evidence to charge and take the case to trial the police will give you a letter setting out the reasons why. You can:
- Request that the decision is reviewed under the Victim’s Right to Review Scheme (more information can be found on the CPS website https://www.cps.gov.uk/legal-guidance/victims-right-review-scheme)
- Request a meeting with the lawyer who made the decision to talk through the reasons the decision was made
If the lawyer decides to charge then you will be informed of this by the police and they will start organising a trial. In London it currently takes around a year between the CPS getting a case to make a decision and the trial to take place.
Before the trial a Plea and Case Management hearing will take place at the crown court. You do not attend this, but the police and a prosecution barrister representing the case will be there, as well as the perpetrator and his defence barrister. He will be asked for his plea: guilty, not guilty or no plea. No plea mean he hasn’t decided which way to plead yet which means that a trial will still be organised. It is extremely rare for perpetrators to plead guilty.
Also at this hearing the judge will check that everything is ready for the trial, if not he will ask to see the lawyers again at a later date. If you have requested special measures these will be raised at this hearing and be granted by the judge. Special measures include:
- A screen between you and the perpetrator in the court room
- Giving your evidence via a video link
- The judge and barristers to remove their wigs and gowns,.
When you have the date for the trial it can be useful to arrange a pre-trial visit to the crown court you will be giving your evidence in. Your police officer or advocate can help you to arrange this. Going to the court beforehand can help you to have more of a picture of what will happen and what a court room looks like. You will also be given the opportunity to watch your video statement again, or read your written statement, to refresh your memory.
The trial will take place in front of a judge and a jury made up of 12 members of the public. The judge is there to make sure the law is followed, that everyone is treated fairly and the settle any arguments between the prosecution and the defence. The police will let you know what time you need to be at court and you will be able to wait in the secure area before you give your evidence.
The prosecution barrister who will be presenting the case will usually come and introduce themselves on the first day, though they won’t discuss any of the evidence with you. There can be a lot of waiting around at court as the barristers and judge have their final legal arguments which are totally normal and happen in every trial.
If you have done a video statement the jury will be shown this before you go into the court room, you will then be called in to give further evidence. The defence barrister, representing the perpetrator, will be asking you questions that challenge your account of what happened. It is important to remember that you are telling the truth and you know what happened. It is incredibly brave to speak out about your experiences and you will be allowed to speak without being bullied or interrupted. When you have finished your evidence the judge will thank you for coming and you will be able to go home.
When the jury have heard all the evidence from the prosecution and defence, which usually takes a few days, the judge will sum up the prosecution and defence cases to the jury and send them out to a private room to make their decision.
The jury are only allowed to find the defendant guilty if they are sure that the defendant didn’t believe you consented. If they cannot all be certain of this then he will be found not guilty – this does not mean that they did not believe you but that there was not enough evidence for them to find him guilty. If he is found not guilty he will be able to leave court.
The police officer you have been working with will let you know of any outcome and talk that through with you.
If he is found guilty and the judge does not believe he poses an immediate threat then he will go back on bail while reports are written about him and any previous history that would help the judge to decide what sentence to give him. The police will ask you to make a victim personal statement which is your chance to tell the judge how the sexual violence you have survived by the perpetrator has impacted on your life. This can be a difficult thing to do and again it is important to have the support you feel you need.
Going through the criminal justice system can be a long and difficult process but it is extremely powerful to speak out and have your voice heard. If you feel you would like a space to talk local counselling from Rape Crisis centres is available across England and Wales. Whether you decide to report or not, remember that you have survived and deserve to recover and live life to the full.