QotD: “With charges brought in less than 1.5 per cent of reported rapes, Wistrich agrees with the victims commissioner, Dame Vera Baird, that rape has virtually been ‘decriminalised'”
Harriet Wistrich is never far from the news. The campaigning solicitor and founder of the Centre for Women’s Justice (CWJ) has been involved in a string of ground-breaking cases — notably a human rights challenge to the police’s failure to investigate complaints made by two victims of the black cab rapist, John Worboys.
That case led to a Supreme Court ruling that established a duty on the police to conduct effective investigations into serious crimes.
In the High Court Wistrich also successfully challenged the Parole Board’s decision to release Worboys after serving only nine years in jail and she won a Court of Appeal victory, overturning Sally Challen’s conviction for murdering her abusive husband.
It is difficult to imagine that four years ago, Wistrich — who practises at the London firm Birnberg Peirce — was seriously considering quitting the law after 20 years.
Time-out travelling with her partner, the journalist Julie Bindel, and another friend who was a life coach, gave her the impetus to bring to fruition an idea she had nurtured for years: to set up a specialist organisation campaigning against violence to women and girls and taking strategic litigation to hold the state to account for its failures to protect them.
That strategy bore fruit most recently last week, when the police agreed to withdraw controversial “digital strip search” consent forms, which allowed the examination of information on the mobile phones of rape complainants.
It followed a year-long campaign by Wistrich’s centre, which brought a legal challenge arguing that the forms were unlawful, discriminatory and led to excessive and intrusive disclosure requests.
The challenge was put on hold while the information commissioner considered the issue. Last month Elizabeth Denham recommended that the forms be rewritten because they did not properly explain the legal basis for the digital intrusion into alleged victims. Unless the forms were withdrawn, the CWJ said it would continue its case.
The case, Wistrich says, is a “good example of where strategic litigation can add leverage which all the policy and lobbying in the world won’t necessarily achieve in the same way”.
Not everything has gone her way. In March the High Court refused permission for a judicial review of an alleged covert policy change by the Crown Prosecution Service over decision-making in rape cases, which the CWJ and the End Violence Against Women Coalition claimed led to a dramatic fall in prosecutions.
The refusal, Wistrich says, was surprising and “gut-wrenching”, but they have not given up and an appeal is listed for next week.
With charges brought in less than 1.5 per cent of reported rapes, Wistrich agrees with the victims commissioner, Dame Vera Baird, that rape has virtually been “decriminalised”.
Given the “horrendous and intrusive” criminal justice process, which makes complainants “feel like they are the ones on trial”, Wistrich says she is amazed by those women who proceed.
“If I was a victim of rape”, she says, “unless the whole thing was captured on CCTV — and even in those circumstances, I wouldn’t have a high expectation that it would be prosecuted.”
The culture of “myths and stereotypes” around the reality of rape and defence efforts to get round the prohibition on asking about previous sexual history to undermine credibility, Wistrich says, contribute to the difficulties for complainants.
Prosecutors, she says, should be “more robust and less risk averse” in the cases they take, putting their energy into “more difficult” cases.
The lawyer argues that serial offenders target vulnerable clients — drug users, those with learning difficulties or victims of sexual exploitation — because they know they get away with raping them. “They should focus on prosecuting these cases not the virgin nuns,” she insists.