‘How did you know she consented?’ This is the question that Alison Saunders, the Director of Public Prosecutions, wants the police to put to men suspected of rape. It’s part of a new ‘toolkit’ designed to increase the rate of convictions in rape trials.
The initiative is one of a wider series of measures intended to exploit the current law on rape with particular emphasis on demonstrating capacity to consent, since intoxication or mental illness or disability may vitiate apparent agreement to the extent where it’s not only ‘no’ that means no, but ‘yes’ may mean no too in the eyes of the law.
The 2003 Sexual Offences Act significantly changed the law on consent. Whereas it used to be sufficient for an accused person to rely on a belief in consent, even if this was passive acquiesance, it became necessary to demonstrate that their belief was, in all the circumstances, reasonable.
In other words it moved from what a person believed, to what they ought to have believed. In legal terms this was a shift from a subjective test to a subjective one with an objective element.
At the same time, the notion of capacity became more slippery. Because if a partner was asleep, unconscious or even conscious but drunk, they might be presumed incapable of giving meaningful consent and therefore guilt could be inferred without more.
While all of this looks fine on paper, in the real world of the dizzying excitement of transitory sexual encounters, where the magic of the moment may be followed by a rude sense of alcoholic remorse, it can be very messy indeed.
Where, as is often the case, both parties have voluntarily consumed significant amounts of alcohol, is it reasonable to expect only one party to take responsibility for ensuring the other would have consented despite intoxication? And where memory lapses occur through drink, should this mean a lack of capacity can be presumed on behalf of a complainant, whereas a suspect similarly affected is presumed guilty, since he cannot rely on the notion of drunken intent?
Ms Saunders is unapologetic. From her standpoint there is a presumption of guilt the moment a complainant makes a report. That’s why she defends the use of the term ‘victim’ for ‘complainant’ and is determined that the criminal justice system as a whole should follow suit.
But with her ‘toolkits’ there is an inherent danger a complainant may be prompted into making claims about consent and capacity which fit the formula of ‘case building’ to meet the law, rather than relying on what actually did occur to the best of her memory.
In other words, it’s all too easy for case building, in such circumstances, to become case manufacture.
Such potential betrays not a respect for the law and the office which she is privileged to hold, but a profound abnegation of the responsibility of the CPS.
For despite indications to the contrary, it is not the role of the DPP or the CPS to act as witch finder general on behalf of interest groups, but to act in the interests of justice and fairness on behalf of us all, including suspects.
For the DPP, it would appear the ends justify the means as far as case building goes. But what she cannot do is change the law.
And this is where her consent question oversteps the mark. Because expecting a suspect to know a complainant consented is not, even within the current vagaries of the law, valid. What is required is reasonable belief in consent. Knowledge goes beyond this in it being what was actually the case.
There is, rightly, in the law, still an element of subjectivity enshrined in the word ‘belief’ which is, in all the circumstances, all a sexual partner can be expected to do. Anything beyond this would be a form of mind-reading and that cannot be his responsibility.
To be confronted with the question of knowledge is therefore both oppressive and illegitimate.
It would appear only to be designed to put the unwary suspect on the back foot, his being forced, hopelessly and haplessly, to prove his innocence.
It has no place in the ‘toolkit’, as indeed the DPP should know since the subjective definition of ‘reasonable belief’ is included in the CPS legal guidance which preceded her tenure.
But perhaps more worrying, is the fact that although the new measure has received copious media attention and commentary, there has been no apparent recognition hitherto that this move is illicit.
The DPP does not make the law, she follows it.
Perceived ‘political correctness’ does not give licence to legal invalidity and it is vital that critical scrutiny goes beyond the knockabout tournaments of ‘blame the bloke’ versus ‘blame the victim’.
For as George Orwell once wrote ‘English… becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.’