UK toolkits provide guidance on investigating consent in sexual violence cases

The UK Crown Prosecution Service (CPS) have published new guidance on investigating consent when prosecuting rape, launched at the first National CPS/Police Rape Conference on Rape Investigations and Prosecutions. The guidance directs prosecutors to ask how the offender knew that the victim had given consent.

The guidance comes within a new series of toolkits to help prosecuting solicitors and in-house barristers deal with the issue of consent both before and at trial. The toolkits spell out situations in which where victims may have been unable to consent due to incapacity from alcohol or drugs, or where consent could not be given freely due an unequal relationship. The toolkit also highlights the following issues:

• The capacity to consent should be questioned where a complainant has mental health issues, learning difficulties or was asleep or unconscious
• The freedom to consent should be questioned in domestic violence situations and where the complainant may be financially or otherwise dependent on their alleged rapist
• 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 -  the danger that myths and stereotypes can have in impeding justice in rape cases.

The toolkits highlight that "context is all-important to the consideration of freedom and capacity to choose and questioning this needs very careful consideration."

Director of Public Prosecutions 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."

In an interview on TVNZ Breakfast, Auckland's Rape Prevention Education CEO Dr Kim McGregor she supported the move.

The guidance comes as the UK Home Office gets ready to pass new legislation which criminalises patterns of coercive, controlling and psychological abuse.

Media

New rape guidelines are welcome – if they’re actually followed, The Guardian, 29.01.2015

Men must prove a woman said 'Yes' under tough new rape rules, The Telegraph, 28.01.2015

Image: yes? no? maybe. by Visionello. Licence: Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0)