CPS and police focus on consent at first joint National Rape Conference

For the first time, toolkits will spell out situations where a potential victim may have been unable to consent due to incapacity through drink or drugs for example; 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. 

DPP 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. 

“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 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. 

Consent is on the top of the agenda at the first National Police/CPS Rape Conference on Rape Investigations and Prosecutions because it is vital that the public, police, and prosecutors understand this area of law. Over one hundred police and prosecutors attending the conference will discuss the issues and hurdles facing police and prosecutors when dealing with rape cases. 

The CPS has created a series of toolkits for prosecuting solicitors and in-house barristers on dealing with the issue both before and at trial. The College of Policing will be publishing updated national policing guidance on rape investigation in the coming weeks.

The new documents published today highlight that context is all-important to the consideration of freedom and capacity to choose and questioning this needs very careful consideration. 

The law is very clear. 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. 

The CPS must consider issues of consent in rape cases when applying the two stages of the Code for Crown Prosecutor’s Full Code test: (i) the evidential stage; followed by (ii) the public interest stage. 

At the conference, DPP Alison Saunders will say, 

“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. 

“As you will be very aware, we are facing a significant increase in caseload. The number of rape cases going to trial this year is expected to be about 30% more than in 2012/13 - this means that there will be around 550 extra jury trials this year and 650 extra decisions to charge. And, as you know, these cases can be complex – each one requires detailed consideration and sensitive handling. The work we are doing through the National Rape Action Plan will help us to deal with this increased caseload while maintaining and further improving the quality of what we do. 

“We have achieved a lot, but there is more to do. The prosecution of rape is of such critical importance that we can never stop striving to be the best we can be. Today is a crucial part of that effort. We have a wide ranging and interesting agenda – I hope it is beneficial for everyone here.” 

At the conference, AC Martin Hewitt will say,  

“As report after report has shown, there is still far too much variation in the way that forces move a complaint of rape through the system. Reporting of sexual offences is up 22 per cent in the latest statistics because of increased confidence in our service and recording but we have further to go.  We need to tackle the iconic issues of ‘no further action’ and, particularly, ‘no crimes’ head on and reduce inconsistencies in our processes so that we can send a clear and unequivocal message to victims about how they will be treated. 

“Victims of rape are not necessarily vulnerable per se but in most cases they will have been targeted by the offender because of some perceived or actual vulnerability. When we conclude an investigation, and especially when we are taking no further action, we must get better at assessing the risk presented by that vulnerability and putting in place some form of risk management strategy. Equally we also need to be evaluating the future threat posed by a suspect when we are unable to secure sufficient evidence to charge and prosecute in a particular case. This is a fundamental element of public protection, which can potentially give us another chance of prosecution. 

“As we work to improve on these areas, we must also remember that, despite all the challenges, we are having real success. Our offer to victims is transformed; we are working better together, dealing with more and more cases, and locking up more rapists.” 

Other issues highlighted in the CPS toolkit published today 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.