Greater onus on rape suspects to prove consent

The Director of Public Prosecutions (DPP) has announced that new guidance will be issued to all police forces and prosecutors as part of a new toolkit designed to improve the way in which rape investigations are conducted. Alison Saunders, addressing the first National Crown Prosecution Service/Police Conference on Rape Investigations and Prosecutions, emphasised that police and prosecutors must now place greater onus on rape suspects to demonstrate that the complainant had consented with “full capacity and freedom to do so”.

The new toolkit is said to be aimed at moving rape investigations into the 21^st century, in an attempt to eradicate the idea that consent to sexual activity is a ‘grey area’. Rape allegations are notoriously difficult for police to investigate. It is clear from the DPP’s recent comments that the new guidance aims to dispel myths surrounding rape and focus more on the context of any allegation rather than how the victim behaved. Whilst historically, great emphasis has been placed on the idea that “no means no,” the guidance moves beyond this and sets out situations where a victim would not be in a position to consent to sexual activity, including being incapacitated through drinks or drugs, having mental health problems or learning difficulties or where a victim was asleep or unconscious. The Guidance also makes it clear that behaviour such as staying silent or the use of contraception does not mean consent was given.

The Conference on Rape Investigations and Prosecutions is said to have been held partly to address issues relating to the low conviction rates for rape cases and the varying ways in which police forces approach rape investigations. In 2013 we wrote about concerns surrounding the number of successful rape prosecutions and the fact that the number of cases referred to the CPS for a charging decision had fallen from the previous year.

Whilst the law already says that consent must be given fully and freely the new guidance makes it clear that police officers must look at all aspects of an allegation of rape. Investigators have been told to put greater emphasis on an accused demonstrating that they had obtained agreement ‘fully and freely’. Whilst the new approach is seeking to positively challenge stereotypes surrounding rape, in order to ensure that strong cases are taken to court, there are concerns about how far a suspect is expected to go in ensuring that he has secured consent. It is clearly in the interests of all parties for police to carefully and fully investigate all aspects of a rape allegation. However, critics have also suggested that the new approach threatens to undermine the long standing principle that an individual is innocent until proven guilty and that the burden of proof is on the prosecution to prove their case.