Britain has issued new guidance that require suspects in rape cases to prove that the victim had consented in the act, and to explain to prosecutors what steps the suspect took to obtain the complainant’s consent. Campaigners have called it a 'huge step forward'.
In detailed guidance issued to the police and prosecutors, the Crown Prosecution Service (CPS) seeks to go beyond existing provisions, as the number of rape cases in Britain increase. The issue is top of the agenda at a National CPS/Police Rape Conference on Rape Investigations and Prosecutions.
The guidance allows for situations in which the victim may be unable to give consent to sex due to drinks or drugs, or where consent could not reasonably be considered to have been given freely due to the unequal relationship of the parties involved. For example, if the suspect held a position of power over the potential victim - as a teacher, an employer, a doctor or a fellow gang member.
Director of Public Prosecutions Alison Saunders said: "For too long society has blamed rape victims for confusing the issue of consent - by drinking or dressing provocatively for example - but it is not they who are confused, it is society itself and we must challenge that. Consent to sexual activity is not a grey area - in law it is clearly defined and must be given fully and freely".
She added: "It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink. These tools take us well beyond the old saying 'no means no' - it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism. We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?"
She added: "It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink. These tools take us well beyond the old saying 'no means no' - it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism. We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?"
The guidance says that the capacity to consent should also be questioned where a complainant has mental health issues, learning difficulties or was asleep or unconscious. The freedom to consent should also be questioned in domestic violence situations and where the complainant may be financially or otherwise dependent on their alleged rapist.
Prosecutors are now being instructed to ask how the suspect knew that the complainant had consented - with full capacity and freedom to do so.
During investigating a suspect, it must be established what steps, if any, the suspect took to obtain the complainant's consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting.
According to Saunders, "Rape cases often turn on the issue of consent and it is vital that we all fully understand what that means. Everyone in this room knows that the typical rapist is not a man in a balaclava in a dark alley. We know that most rapists know their victim, and the trauma of being raped will affect each victim differently. But the issue of consent raises many issues for us to consider, and it is vital we all continue to learn from our experiences to ensure we bring dangerous offenders to justice and protect victims”.