<aside> 💡
This is a version of one my coursework essays for Part II Political Philosophy at the University of Cambridge, March 2025.
</aside>
Roughly 2% of reported rapes in the UK today result in a conviction – and this is just the reported ones (Parker, 2023). Something is going seriously wrong with our handling of sexual violence court cases. On my view, at least part of the explanation for this is that women are being wronged – are suffering injustices – by the frequency with and way in which sexual violence court cases are conducted, and until the necessary reforms are made, they will continue to be.
Common in discussion of wronging and injustice in political philosophy is the distinction between ‘instrumental’ and ‘procedural’ injustice.[1] The former is injustice stemming from the outcomes or consequences of a government’s action/legislation, whereas the latter is injustice arising out of the proceedings of these events, regardless of the consequences they bring about (be they good, bad, or neutral). I contend that women are instrumentally wronged by the extensive failure of sexual violence court cases to secure rightful convictions, as well as procedurally wronged by the way in which they are ‘put on trial’ in these cases.
I examine two features of the sexual violence court case which I take to demonstrate some of the instrumental and procedural injustices of the Criminal Justice System (CJS) in cases of sexual violence: the definition of rape used and the evidentiary standard set. The former marks what we are looking for in these cases, and the latter informs how we are to look for it, as well as how often (and so how rarely) we can claim to have found it. Each of these features are unjust as they currently are, and have more just alternatives available.
I begin by discussing the evidentiary standard set in sexual violence court cases, before moving on to discuss the definition of rape used. In section 1, I argue that, even if the current legal definition of rape is accurate and appropriate, the evidentiary standard reached for in sexual violence court cases wrongs victims instrumentally and procedurally. In section 2, I argue that, in addition, the legal definition of rape should be changed.
Although some of those who report rape will be merely alleged victims, most will be true ones, and most victims of rape are women (Kelly & Lovett, 2005: 107; Parker, 2023; Sources for Statistics, 2023). For these reasons, I talk of the victims in sexual violence court cases, and of women being wronged by the frequency with and way in which these cases are conducted in the UK today (rather than talking about the alleged victims in these cases, and of victims being wronged).
The evidentiary standard of legal proceedings in a criminal case is the evidential criteria set for convicting someone of a crime they have been accused/suspected of committing. One of the goals of CJS is to set this standard at a level which balances the potential innocence of the accused against the potential reality of the accusation – the defendant’s right not to be wrongly convicted against the prosecutor’s right not to have a perpetrator of theirs get away with their crime – in a just way (Bolinger, 2021: 116). Regardless of exactly where this evidential line should be drawn, it is clear (or will be by the end of this section) that the evidentiary standard currently set in cases of sexual violence leans too much in the direction of the defendant, and is therefore unjust.
To make the case for the injustice of the evidentiary standard, I will first present an argument pointing in the opposite direction. Here is a story someone could tell about the 2% statistic given in the introduction:
1. 61% of victims who report rape choose to withdraw support for the case before prosecution has run its course (Newlove, 2024), and therefore fail to secure a conviction.
2. In the remaining 37% of cases in which a conviction is not secured, allegations are either false or otherwise come with insufficient evidence for conviction, given the evidentiary standard required by justice in legal proceedings. (Perhaps there are a few cases in which sufficient evidence is found and yet conviction is not secured, but these are no more common than is to be expected given the unavoidable imperfection of legal practices).
3. In light of (1) and (2), there is nothing wrong with CJS in cases of sexual violence, which is functioning in a perfectly just way.
(1) is true, and it’s support of (3) stems from the idea that it is not the fault of CJS if victims simply choose not to pursue (or continue pursuing) conviction against their perpetrators – in effect, they are failing to co-operate with CJS, which cannot be blamed for then failing to secure a conviction for them. (2) is somewhat speculative, but many will accept it in light of a common view of the ‘Presumption of Innocence’ (POI) according to which, given the private nature of sexual violence crimes, it is rare for sufficient evidence to justify conviction to be found in these cases.
POI is a valued principle of criminal law which states that accused criminals should be ‘considered innocent until proven guilty… beyond a reasonable doubt.’ (Presumption of Innocence, 2025) This principle is important, because the stakes involved in prosecuting someone of a crime are high – there is potential for someone’s liberty to be restricted by the state unjustifiably – and so there must be firm grounding for the conviction of a suspected criminal (Ferzan, 2021: 93). On the view currently being presented, respecting POI means that conviction is rarely secured, because this grounding is rarely found. Crimes of intimacy are by nature often private and behind closed doors. As a result, when they occur, we often have little more than the testimony of the victim to prove that it has, and this is not enough evidence to ground a conviction given POI. Many even go as far as to say that we are right to fail to convict even in many of the cases in which we individually (as members of the jury or otherwise) strongly (and perhaps even justifiably) believe in the guilt of the defendant (ibid.: 65-6). Although only 2% of reported rapes result in a conviction, there is nothing wrong with CJS as it currently is, which need (and indeed should) not be reformed.
Although it could be told, this story is a false one. Firstly, it is true that 61% of reporters of rape withdraw support before prosecution has completed (Newlove, 2024), but we cannot so easily take from this that CJS is blameless for the lack of conviction in these cases. This is because this 61% figure is in large part due to the extensive backlogs and delays that currently exist, distress, and disincentivise victims from maintaining support for their case  (ibid.; Newlove, 2025). What is more, many of these victims will be aware that their case will be unlikely to make it to court and/or that, if it does, they will likely undergo great scrutiny from the defence only to still face the significant prospect of an innocent verdict. Reported rapes are passed to the ‘Crown Prosecution Service’ (CPS), which processes only those cases which it judges to be at least 50% likely to succeed in court (Lees, 1996; cited in Lennon, 1999: 301; Code for Crown Prosecutors, 2018: 4.6-8). Due to the nature of court process in these cases (which I will shortly be moving on to), this procedure makes for a cycle of under-conviction. Although the ‘Code for Crown Prosecutors’ prescribes that the success prediction be made on the basis of what a reasonable (rather than expected or actual) jury would decide, this does little to help the situation. The way the defence operates in court, in tandem with the way many jurors are already inclined to respond to evidence, means that even a ‘reasonable’ jury will produce an unjust innocent verdict far too often; and CJS itself will likely have a distorted idea of what a ‘reasonable’ jury would be. I will now discuss POI and defend the claim that the way the defence and jury operates in sexual violence court cases far too often fails and wrongs victims.
It is indeed important, for the reasons already outlined, that we respect POI in legal proceedings, and sexual violence cases are no exception to this. However, as it currently plays out, we take the principle of POI further than it justifiably can be, neglecting the competing consideration stemming from the right of victims not to have their perpetrators go unconvicted. POI is not a literal presumption – indeed, we would not require people to go to trial and even go as far as to hold them in cells against their will if we believed (in these moments) that they were highly unlikely to be guilty of the crime they have been accused/suspected of. POI is a guide, prescribing us to refrain from convicting an alleged criminal until we have proven ‘beyond a reasonable doubt’ that they have committed the crime, and appeals to POI can only be a reminder of this evidentiary standard. Further, proof beyond a reasonable doubt is not proof beyond all doubt: we are almost never 100% certain that someone has committed a crime, and yet we still convict and sentence people for crimes we judge them to have committed. This is because the potential for conviction to wrong an innocent defendant needs to be weighed against the potential for a lack of conviction to wrong a genuine victim.
Are we striking this balance adequately? The answer is no. There are a couple of things to be said on this. Firstly, the view I am responding to states that, because we often only have the testimony of the victim to go off of in sexual violence cases, prosecution rarely meets the evidentiary demands of POI. This point relies on the idea that testimony against a defendant is very weak evidence, and many even go as far as to hold testimony to provide no evidence at all. This is presumably because we have the testimony of the defendant that they didn’t commit the crime, and people take this to produce a stalemate in terms of evidence in favour and against the criminality of the defendant (Ferzan, 2021: 84). But this is ‘bad epistemology.’ (ibid.: 83) As Ferzan notes; ‘you can hear both sides to a story and be completely convinced that one person is telling the truth and the other is lying.’ (84) What is more, in ‘he said/she said’ cases, we have more reason to accept ‘her’ testimony over ‘his’ because, whereas the latter has a strong incentive to lie (in order to avoid conviction), the former has a much weaker incentive, if one at all (86).
Second, lines of questioning are still occurring in sexual violence court cases which cannot be justified by POI and/or the necessary evidentiary standard set in legal proceedings. In 1996, Sue Lees conducted extensive research into the legal proceedings of sexual violence cases and wrote an exposé – ‘Carnal Knowledge’ – with the hope of motivating and informing needed legislative reform for the rights of women (Lees, 1996; cited in Lennon, 1999). Despite its impact and the time that has passed, ‘rape myths’ – stories about victims’ responsibility for alleged rape – persist, and continue to be fed to jurors in sexual violence court cases. Victim Support conducted an investigation and produced a report in 2024 detailing some of the questions victims were asked in court by defence lawyers. Although only 3% were asked about their sexual history (a reduction due in large part to Lees’ work), one third of victims were asked what they did to stop the offence whilst it was happening, a third were asked if pursuing justice was a means of ‘getting revenge’, and a third were asked if they were under the influence of alcohol or some other drug whilst the offence took place (Moroz & Dinisman, 2024: 37). These questions are irrelevant to the acquisition of evidence of the innocence of the defendant in sexual violence court cases. It is not the victim’s responsibility to stop their assailant from raping them; it does not matter what the exact motivation of the victim is for seeking justice; and they are not responsible for being raped simply because they were intoxicated.  The allowance of the defence to feed these myths (even if only by implication) to the jury is further evidence that the evidentiary standard deployed in the sexual violence courtroom is tipped in favour of the defence (if the victim is respected at all) and needs to be changed.
The above discussion of the evidentiary standard set in sexual violence court cases demonstrates that at least two reforms must be made relating to it: defence lawyers should cease to be permitted to perpetuate rape myths in the courtroom; and jurors should be better briefed as to what POI and the necessary evidentiary standard actually entails in the courtroom. Until these reforms are made, women will continue to be instrumentally and procedurally wronged by the frequency with and way in which sexual violence court cases are conducted in the UK: instrumentally because these features of the case unjustifiably and significantly reduce the likelihood that they will secure a rightful conviction; and procedurally because the line of questioning and the way it is received by the jury disrespects the testifying victim, causing great distress, and is unjustifiable.