Heather D. Flowe, PhD
Overhauling UKs rape response: Include greater public access to interview data and survivor input
Updated: Jul 2, 2021
Maria is one of the 65% at the prosecution stage who I saw have her case dropped. I was working as a graduate in one of the largest prosecutor’s offices in the US. Her case had already passed many hurdles--she reported it, the police investigated, an arrest was made, and her case made it to the District Attorney. Most don't. But, Maria failed to disclose that she had seen her attacker, a stranger to her, on the bus earlier that morning.
That omission led to her being denied justice. Not only that, Maria, now an adult, had returned to speak with investigators, as the suspect was being charged with raping four more women since. For Maria, and countless other people around the world today, the reality of their experiences will not be reflected in criminal justice statistics.
Now, don’t get me wrong. The statistics we do have are creating awareness and conversations about the appallingly low rates of successful prosecutions. I’m also a data scientist at heart. Data reveal blind spots, patterns, and trajectories, as I have been teaching students for more than 20 years now.
What I’m saying is that we must be mindful of what’s missing, what the statistics in front of us don’t tell us about how to fix a derailed criminal justice system, such as the UK, as captured by the MOJ's end-to-end rape review report.
In what follows I focus on the lack of data regarding police interviews with sexual violence complainants. The interview is pivotal – it helps establish the main, if not only, evidence in the case. It provides leads to investigators about other forms of evidence, informs charging decisions, and aids in the interpretation of forensic evidence. Hence, it is crucial to examine how memory evidence is collected in police interviews to improve the process, strengthen prosecutorial decision making, and if charges are brought, increase successful prosecutions.
Better intital accounts and interviews with victim-survivors preserve and protect memory, and can address evidential problems, speed up case preparation, and ensure more cases are in a fit state when they come to court.
Difficulties with how interviews are conducted results in poor evidence, and thus, are a major source of blockage in the successful adjudication of sexual offences. Research and survivor informed practice on interviewing are needed to get the system back on track.
What we don’t count and why
One issue that limits counting is that the criminal justice system is a black box. While criminal investigators often tell me stories about what goes on behind closed doors, researchers like me long for systematically collected information that is randomly sampled so that we can generalise and know the boundaries of our conclusions. For example, relatively few studies have been able to access transcripts of police interviews with rape complainants, let alone gain a random sample of them. Any researcher who has been able to access such data will tell you it is hard going to negotiate access.
In our data-saturated world, the stark absence of such datasets is surprising. Researchers are told that the data are off limits, owing to a lack of consent to participate by the parties involved. However, consent certainly could be sought, and the data could be heavily redacted to protect privacy like it is for other official data that are made public. This would unlock information about how different questioning techniques influence re-traumatisation of the victim-survivor, the quality of the memory evidence, and victim-survivor engagement in the CJS, and so much more.
Another issue is that even when we do have a chance to access information about police interviews, the circumstances of data collection limit what we can know. For instance, in my own research, matters of confidentiality and practicality required that my team and I code 1400 variables from over 700 randomly selected cases at the prosecutor’s office, not in the lab where we would have had the means to work with the data at scale. (Each case normally comprises about a dozen file boxes of papers.)
Consequently, something awful and inexplicable inflicted on a human being is distilled into “violence = 1” on a spreadsheet. We typically are summarising what we see in a case file, capturing shadows of people’s experiences, half hinted.
The evidence and “facts” in the statistics entail a reduction of experiences on select variables in select samples. This matters because social policy is based on our interpretations, and policy will be only as good as the data. As I will argue below, we need to listen and learn from victim-survivor experiences of going through the process to understand what is behind the numbers.
To illustrate the importance of this, one of the handful of studies that exist paints a bleak picture of complainants’ experiences during interviews. The focus of the study, conducted by Charles Antaki, Emma Richardson, and Elizabeth Stokoe, was on conversational practices—how the investigative interviewers asked the sexual assault complainants questions and it illuminated serious problems. It provides evidence that the investigators in the sample were communicating disbelief and disapproval to the complainants.
They found instances of questions implying the implausibility of the account or that the complainant has contradicted themself, such as “If x was the case, how was y possible?” For example, “You said it was dark. How did you know he was holding his penis?” “If he’s holding you like that, how did he manage to rape you?”
The analysis also revealed the frequent use of questions that point to the complainant’s conduct being contrary to normal expectations in the form of “Why did you do x?”, such as “Why didn’t you scream? Why didn’t you fight him in any way?”
“Why” questions also raise feelings of self-blame in victims.
These findings are crucial to understanding how to fix a broken system. They show us it is not just what is asked, but how it is communicated to us that can impact disclosure. These things matter in police interviews, and not just to the investigation. Interviews are recorded and played for the jury as evidence in the UK.
Do these conversational practices affect how much information we remember and disclose, and how confident we feel and appear to the questioner? I can’t give you an answer to these questions, but my students and I are currently undertaking the research.
These findings are also important because not only do they suggest that reform is needed, but also that researchers need access to more information about what’s happening inside the CJS black box to study problems more widely to ensure reform is effective.
A third issue is that who, and in what contexts, we collect data, are not democratically decided, and are analysed in ways that obscure power differentials and the humanity of data. For the women in the study above, all had learning differences. Their positionalities—intersecting aspects of their identity and forces of oppression and privilege—collapse into official CJS statistics, uncounted. Relatedly, criminal justice systems, interview formats, and the like, are not designed with or for the groups that experience them, and we should not blame those who have been excluded from being unable to function well in these systems.
Maya Angelou said "Do the best you can until you know better. Then when you know better, do better."
The current state of CJS functioning, however, indicates the best we have been doing by rape victims is pretty abysmal, with only a 1% conviction rate.
So, how might we do better to know better? For starters, we ought to analyse what is missing to expose knowledge gaps. More CJS data must be made publicly available and accessible. For most researchers, journalists, and others, putting together a dataset is cost prohibitive. For example, to study what happens at trial would require sitting in the courtroom day after day with a notepad, or to spend hundreds and hundreds of pounds on the trial transcript. You would need hundreds of such transcripts, assuming you could figure out a way to randomly select cases to begin with.
Additionally, we must also study the experiences of victim-survivors by asking them how we can make practice better. They intimately know what the problems are. I often provide workshops for police and prosecutors about interviewing and memory. But, going forward, I will seek out a victim-survivor, who has been through the process, to co-present with me. I frequently have victims-survivors contact me, and the harrowing stories they share astonish me, even though we’ve all seen and heard about such ordeals hundreds of times, from our families, friends, and in the news. For those of you who who already do this, or who want to do this, get into touch with me. We should all do more of the same, involving affected communities in making the system better.
Finally, are you a researcher who studies interviewing, or a related topic? Involve police, prosecutors, barristers, defense attorneys, and, especially, victim-survivors, in the design and translation of your work. I recently supported the establishment of the James Lind Alliance Sexual Violence Priority Setting Partnership, which amplifies the voice of rape survivors and engages in them in meaningful conversations about the future of their care. There are many good guides out there for building fair and equitable partnerships, such as this one here. Victim-survivor input on what’s working, what’s not, and how we can move forward and do better research, is what will fix a broken criminal justice system.