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The contested 3% conviction rate for rape in Scotland – what is the real story?
The contested 3% conviction rate for rape in Scotland – what is the real story?

Recent weeks have seen public figures such as the Justice Secretary and the Solicitor General describing the often quoted 3% conviction rate for rape as misleading and untrue. An alternative and significantly higher figure of 33% is quoted instead. Who is right?

The 3% conviction rate measures the proportion of rapes reported to the police which lead to a conviction. The figure is derived from the Scottish Government’s two statistical bulletins – Recorded Crime in Scotland and Criminal Proceedings in Scottish Courts. The 3% conviction rate is calculated by taking the number of reported rapes (for 2008-2009), which was 821, and the number of convictions – 25 – and working out the percentage between these figures – 3%. Most reported rapes don’t lead to a prosecution – from the Scottish Government’s own figures only 10.1% lead to a prosecution. This means that the vast majority of rapes reported to the police in Scotland do not reach court.

It is important, however, to give two health warnings on these figures: firstly, the figures in the two statistical bulletins from which the 3% conviction rate is derived measure slightly different things: the police statistics in the Recorded Crime bulletin measure by offence whereas the court statistics in the Criminal Proceedings in Scottish Courts bulletin measure by offender. In some circumstances one offender will be responsible for more than one offence, so in this sense the two sets of figures are not directly comparable. Secondly, court statistics are recorded by main offence, so in cases where rape is not the main offence, i.e. where the main offence is murder, a conviction will not be included in the overall number of rape convictions. Although the latter scenario does not cover many rape related offences in Scotland (we do not have significant numbers of joint murder & rape cases each year in Scotland) it is clear that these do represent genuine caveats to the reliability of the 3% figure. However, there is no other source of data available which tells us how many rapes reported to the police lead to a conviction.

The Scottish Government and the Crown Office, when challenging the 3% conviction rate, assert that 33% of rapes indicted to court lead to a conviction. It is crucial to note here that they are not comparing like with like, in that they are taking as their starting point cases indicted to court, not cases reported to the police. That is not to say it is not a valid figure, but it is talking about something completely different. It is important to bear in mind here that only around 10% of cases reported to the police ever reach court – what the 33% conviction rate figure is referring to is what happens to small proportion of cases which reach court, not what happens to all reported rapes.

Why does this matter? The rape crisis movement has at times been criticized for highlighting the very low level of rapes reported to the police which lead to a conviction. Concern has been expressed that focusing on this conviction rate will deter rape survivors from coming forward and reporting their experience. It is important to acknowledge the significant progress that has been made by the Crown Office in how rape is prosecuted, including the introduction of the National Sex Crimes Unit and specialist teams within the fiscal service across the country. It is to be hoped that these positive changes will lead to an increase in our conviction rate, or at the very least an improvement in survivors’ experience of the justice system.

Rape Crisis Scotland believes however that to focus only on what happens to cases which are indicted for court misses entirely the experiences of the vast majority of survivors reporting rape in our country. Is it really of no consequence that around 90% of those reporting rape will never see their case reach court? Is this not a matter of concern which we must focus our attention on? Or do we really think its ok to just write off the vast majority of reported rapes as unprosecutable? Does this not signal something wrong with our justice system if this is the case?

A final question: how can it be after decades of concern about legal responses to rape that we can’t even reliably give the most basic data of how many complaints of rape lead to a conviction?