‘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.’
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