England: greater onus to be placed on accused to prove consent in rape investigations

In a major change to the investigation of sex offences, men accused of date rape will need to convince the police that the woman gave her consent to sex.

Alison Saunders, the director of public prosecutions said the law must recognise situations in which women may be unable to give consent.

She said women should not be “blamed” where, for example, they are too drunk to consent to sex or if they are unable to speak because they are petrified by fear of their attacker.

Police and prosecutors must now strengthen the onus on rape suspects to indicate how the complainant had consented “with full capacity and freedom to do so”.

The guidance will be issued to police and prosecutors as part of a move to update how rape investigations are conducted.

Ms 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?”

Speaking at the National Crown Prosecution Service/Police Conference on Rape Investigations and Prosecutions in London, Ms Saunders said that in addition to circumstances where people are incapacitated because of drugs or drink, the measures will cover situations where “a suspect held a position of power over the potential victim - as a teacher, an employer, a doctor or a fellow gang member”.

Consent should also be questioned where the complainant suffers from learning difficulties or mental health issues, or was unconscious or asleep at the time of the alleged rape, she added.

In addition, the guidance will capture domestic violence situations as well as those where “the complainant may be financially or otherwise dependent on their alleged rapist”.

Metropolitan Police assistant commissioner Martin Hewitt said: “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.”

Sarah Green, director of the End Violence Against Women Coalition, said: “Although we have a long way to go in securing justice for all survivors of rape, the new guidance is a huge step forward in that it will help ensure that juries are asked to look in detail at the behaviour of defendants as well as at that of the complainant.

“It makes clear that consent must be sought as well as given, and it spells out issues around power and vulnerability of some victims which police, prosecutors and ultimately juries should take into account.”