#Consent is… clearly defined in law

Remaining silent during a rape could be evidence of consent

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The recent spate of cases in England where the Police and CPS failed to hand over evidence of consent expressed in social media correspondence has put the spotlight on CPS and Police practices in rape cases. Before looking at the latest information, here are some background notes to put it into context.

Acting in the public interest, the Crown Prosecution Service (CPS) has to be fair to both sides: to the complainant, the person who has allegedly been raped, and to the defendant/accused. There has to be proof that i) a crime was committed and ii) that the person accused, committed it. To decide if a complaint should go to trial the CPS will first of all ask if it is in the public interest to do so and then decide if there is a sufficiency of evidence (quantity) and reliability (quality) of evidence of both elements i) and ii). It is then for a jury in a rape trial to decide on the facts/evidence heard from both sides, with guidance from the judge on the law, if the accused is guilty beyond reasonable doubt of the crime as stated, or not.

The CPS has set out guidelines on rape and sexual offences.  It includes what constitutes “reasonable belief in consent”.

“Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps (A) has taken to ascertain whether (B) consents (subsection (2) of sections 1-4). It is likely that this will include a defendant’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

…The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:

  1. Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
  2. If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).”

Here is a report (adapted from Scottish Legal News) that sheds light on a recent development in the understanding of consent in rape cases in England & Wales.

The Director of Public Prosecutions (DPP) in England and Wales, Alison Saunders (pictured) has said remaining silent during a rape could be evidence of consent. She said a suspect could have “reasonable belief” that the complainant consented if they remain silent.

She also said that the CPS should be “a protection” for both sides, normally understood to be one of the functions of a prosecutor, in the wake of four high profile collapsed prosecutions, which have brought into question the actions of both lawyers and the police.

Ms Saunders said there is a two-stage test for dealing with rape allegations. First, they look at the complainant’s capacity to consent and secondly, whether or not the suspect had a reasonable belief there was consent.

She told the Evening Standard: “So in some of the cases you can see why, even though the complainant may think they were raped, there was a reasonable belief that they had consented, either through silence or through other actions or whatever.

“We are there not just to be able to prosecute cases where there has been an offence, but also not to prosecute cases where there isn’t sufficient evidence.”

The DPP added: “We have never done the extreme of if someone says they’ve been raped or just wants to shout rape then that’s enough.”

The CPS’ Code for Crown Prosecutors, rule 4.2 states: “In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed.”

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