Sex is one of the only weapons that can’t be found in a stop and search, but evidence of it can certainly be found with a forensic one. Domestic abuse and intimate partner violence[1] increased during Lockdown, yet we are living through a 10-year low in prosecution rates. Now more than ever, we need to cast a line between supporting victims and securing prosecutions. Yet the same public interest measures which have endangered this group of women have ensured that this remains elusive, as in London, the centres[2] which could improve conviction rates operated from one (of three) sites, limiting their service.
During Lockdown, Refuge reported a 25% rise in calls, and the National Domestic Violence Helpline had a 120% rise in calls, yet by mid-April the police had recorded only a 3% increase in reported cases. This discrepancy exposes the unfortunate truth that many instances of domestic abuse during lockdown are unlikely to result in either charge or conviction. There are many reasons for this, each worthy of their own topic, but I would like to focus on the gathering of forensic evidence, particularly in the context of lockdown.
On average it takes 2 weeks for a victim to decide to report a sexual assault to the police with the Havens recommending that a forensic examination is considered up to 10 days post-assault before the evidence on the body expires.
One of the greatest inhibitors of rape prosecutions (post-reporting) is lack of evidence. This cannot be underestimated, as CPS prosecutors assess charging decisions on the basis of evidence. A recent Internal Review by the CPS [3] has highlighted that of Early Investigative Advice requests (where the police refer to the CPS to decide whether a case should be charged), a third of all of these cases were dropped as they were deemed exceptionally weak. At the disclosure stage, the criminal justice system is criticised for the invasiveness to complainants of its procedures, [4] with the CPS report finding that in the majority of cases prosecutors made disproportionate and unnecessary requests for disclosure, such as the entire contents of complainants’ phones; the evidential burden typically falling against the complainant. At trial, sexual offence cases can have a tendency to be one person’s word against another; given the above, the value of forensic evidence cannot be understated at any stage, and can strengthen the case where the suspect denies sexual activity. Where sexual activity is admitted by the suspect, forensic DNA confirms what both parties agree upon, and the issue becomes of one consent.
This is where The Havens [5] step in, in London playing a major part in securing forensic evidence and are the primary resource used by police for potential survivors of sexual assaults. The Havens are equipped with specialists trained in conducting forensic medical examinations, all of whom are women. This service alone is something that many hospitals and police stations lack, rendering the Havens invaluable. Another function of the Havens is holding the forensic evidence gathered for up to a year, should a victim decide to report to the police. This practice demonstrates understanding of the time it can take to report such a crime and removes pressure from victims to make traumatic disclosures immediately after the assault.
Unfortunately, this legacy did not last into the Lockdown. With the increase of cases came a decrease in services, as The Havens followed national guidance to ensure that some form of service could continue to run. At this time, reporting to the police dropped to 25% (as described above), in March/April the Havens experienced a corresponding drop in referrals from the police, to 25%. Whilst The Havens have been able to continue their counselling and holistic support services such as immediate medical care, safety planning and emotional support, the vital forensic examinations suffered. The service was continued but restricted to those cases where a victim was considering reporting there was public interest, and where there would be ‘forensic value’ in criminal proceedings. The Havens did make attempts to mitigate the loss of service users, for example by ensuring self-referrals (those not referred by the police or a professional and therefore less likely to report) were talked through their reporting options by a specialist police officer, a method the Haven’s have been relying upon for some time.
The reality of a virus which spreads through close contact, and the initial wave which hit London and put immense strain on the NHS had an impact on the service that the Havens could deliver. Despite the best efforts of The Havens to keep both victims and staff safe during Covid, realistically those not intending to pursue the criminal justice route are unlikely to have been seen for a forensic medical examination. This represents a significant drop in service levels, where the Havens are the only service in London which offers these examinations. Whilst the service is operating how it can, we must consider the impact any limitations might have had on the process of achieving justice.
On average it takes 2 weeks for a victim to decide to report a sexual assault to the police and the recommended 10 day window before evidence on the body will expire. Many survivors who lost access to the service's Forensic medical examinations may decide to report down the line. Given the low prosecution rates described above, not having forensic evidence which may have been available under normal circumstances could be detrimental to CPS decisions to act on that report.
In the pandemic state, decisions are being made globally which impact on the personal and public. The Havens in London have taken action following national guidance to ensure staff safety [6]. That being said, in other SARCs spoken to from across the UK, forensic services are running as normal. Victims are still being offered examinations whether or not there is police involvement in their cases. This raises the question of why the service at The Havens has been so restricted particularly given the significant rise in sexual violence cases throughout lockdown. Considering the wave of cases that London initially faced compared to the rest of the UK, the restrictions made some sense. However the continued limitations to services need to be scrutinised in the public interest.
Perhaps the greater questions are for those setting the ‘national guidance’ that The Havens decided to follow. We know that pandemics (from the Ebola crisis, for example) create increased risks for women and girls, and that gender-based violence is likely to increase significantly. The increase in calls to the helplines above is entirely predictable. Where policymakers know that the reporting infrastructure around rape and sexual assault is inadequate, services such as The Havens and SARCS more generally should have been given more resources to help victims and survivors. Yet 2 forensic staff were redistributed from The Havens, and 2 of 3 centres closed, during the lockdown. This represents a frightening lack of insight or care into the long-term outcomes for the women and girls who were inevitably going to fall prey to violence at this time. Policymakers ought to have focused on distributing resources to increasing reporting and strengthening evidence gathering mechanisms.
Lack of forensic evidence is by no means the only barrier facing victims and complainants of sexual and domestic violence, but it is one that needs taking seriously in order to raise levels of prosecutions.
The havens have now reported: “Following some adaptions made to services provided at the Havens during the height of the pandemic, we are pleased to confirm that our standard service resumed earlier this year. As always, we would urge anyone who needs our support to come forward.”
Bethany Baggaley is a paralegal working at Lawstop Solicitors with a view to attaining pupillage and further developing her practice working with vulnerable children and adults. She has a particular interest in the relationship between the legal system and social justice. https://www.linkedin.com/in/bbaggaley/
[1] Incorporated within this is sexual violence and rape, which will be referenced throughout
[2] Sexual Assault Referral Centres, or SARCS, are based across the UK and provide immediate support to rape and sexual assault victims. These provide specialist forensic medical examinations.
[3] https://www.theguardian.com/law/2020/mar/15/cps-failed-to-tell-inspectors-of-internal-review-revealing-case-failings
[4] https://www.newstatesman.com/2019/08/how-new-digital-strip-search-policy-treats-suspects
https://www.centreforwomensjustice.org.uk/new-blog-1/2020/3/13/stop-digital-strip-search
[5] The Havens are the London branch of SARCs (each is run by a different organisation). These are funded by the NHS and the Mayors Office for Policing and Crime, and have been reviewed by the CPS with the aim of improving victim confidence, reporting and attrition of rape.
[6} The Havens put in place pathways to see known or suspected COVID positive clients where in-person attendance – particularly for forensic evidence – was deemed essential. Staff wore appropriate PPE