CPS issues new guidance on consent in rape cases

Police and prosecutors have today been given the clearest instructions yet on assessing the vital issue of consent in rape cases.

A new toolkit called ‘What is consent?’ produced by The Crown Prosecution Service (CPS) aims to move the issue well beyond the idea of “no means no” to spell out situations where possible victims may have been unable to give consent to sex.

For example, a potential victim may have been unable to consent due to incapacity through drink or 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 (pictured) 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.

“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?”

Prosecutors are now being instructed to ask how the suspect knew that the complainant had consented – with full capacity and freedom to do so. The guidance highlights that context is all-important to the consideration of freedom and capacity to choose and questioning this needs very careful consideration.

Under s74 of the Sexual Offences Act 2003, consent was redefined in law:

• Someone consents if s/he agrees by choice and has the freedom and capacity to make that choice.
• Consent may be given to one sort of sexual activity but not another, or with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs.
• In investigating the 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.

Other issues highlighted in the CPS toolkit are:

• Steps taken to obtain consent – how did the suspect know the complainant consented to sex and continued to consent to all sexual activity?
• Reasonable belief in consent – were any signs from the complainant that they did not want sexual activity (such as freezing) recognised or ignored?
• Myths and stereotypes – we have highlighted the danger that myths and stereotypes can have in impeding justice in rape cases for many years, and tackling them remains crucial.

The document ‘What is consent?’ is available here:  http://www.cps.gov.uk/publications/equality/vaw/index.html