The DDP's tough new rape guidelines: What are they and why are they so important?

Rape suspects will now have a greater burden of responsibility to demonstrate how a possible victim consented "with full capacity and freedom to do so" to authorities

Loulla-Mae Eleftheriou-Smith
Thursday 29 January 2015 18:03
The chances of getting a rape case prosecuted are now at the lowest rate since 2007
The chances of getting a rape case prosecuted are now at the lowest rate since 2007

New guidance given to police and prosecutors in rape cases spells out the need to look beyond the simplified concept of “no means no” to specifically spell out cases in which possible victims of rape may have been unable to give their consent to sex, and in the process attempt to stamp out the blame culture that can plague rape victims.

Now officers and lawyers are advised to ask a suspect how they knew that an alleged victim had consented to the sexual activity “with full capacity and freedom to do so”.

What are the new guidelines?

The new “toolkit” administered to authorities outlines where a person’s ability to consent to sex should be questioned in the following areas:

- Where the possible victim has mental health problems, learning difficulties or was asleep or unconscious at the time of the attack.

- In domestic violence situations where the potential rape victim may be financially or otherwise dependent on the alleged rapist.

- In situations where possible rape victim had become incapacitated through drinking or taking drugs.

- For cases where the alleged rapist may have held a position of power over the potential victim, such as a teacher, an employer, a doctor or a fellow gang member.

Numbers of rapes reported to police have soared by almost one-third over the last year

Why are the new guidelines so important?

In 2013 a joint report by the Ministry of Justice, Office for National Statistics and the Home Office found that:

One in five women aged between 16 and 59 have experienced some form of sexual violence since turning 16.

Around 404,000 women and 72,000 men are sexually assaulted each year.

On average, 85,000 women are raped in England and Wales each year.

Of these women, only 15% or so reported the incident to police.

The Crown Prosecution Service (CPS) recorded 3,891 rape cases went to court between 2013 and 2014, of which there was a 60.3% conviction rate.

Rape conviction rates in the UK have fallen since 2012 and the proportion of rape cases referred by the police to the CPS is at its lowest rate since records began, despite the number of sexual offences reported to the police having risen by 22% in the last year.

In practice, consent is often an area where rape cases can become de-railed, where a victim is often forced to prove they did not consent to sex, rather than the burden of proof being placed on the perpetrator that there was clear consent from the possible victim.

It can become increasingly difficult to prove the longer a case takes to get to court – often rape cases can take up to two years to be heard.

How does the issue of consent feed a ‘blame culture’?

Alison Saunders, the Director of Public Prosecutions, has stressed that the perceived confusion over consent feeds into a blame culture that ultimately hinders a possible victim’s case: “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,” she said.

"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?"

Martin Hewitt, the Metropolitan Police Assistant Commissioner, has himself admitted there is “far too much variation” in the way that forces move a complaint of rape through the system.

Hewitt, who is also the Association of Chief Police Officers lead on adult sex offences, said the police needs to “tackle the iconic issues of ‘no further action’ and, particularly, ‘no crimes’ head on and reduce inconsistencies in our processes so that we can send a clear and unequivocal message to victims about how they will be treated”.