New guidelines on the prosecution of rape cases to be issued to police and prosecutors were reported widely last week. One aspect of the advice is that "prosecutors are now being instructed to ask how the suspect knew that the complainant had consented—with full capacity and freedom to do so" (this doesn't amount to a change in the law.) The guidelines also advise criminal justice professionals to look at the wider context in which an attacker alleges that consent was is given.
Are these new guidelines a welcome new tool in the fight against sexual violence? Or are they not necessary, or even harmful in undermining the presumption of innocence? We asked two experts to give us the case for and against.
We've had major child sexual exploitation (or "grooming") prosecutions in many towns over the last few years involving vulnerable young girls as victims and witnesses. These prosecutions can only continue and be successful if criminal justice professionals look not only at victim/witness conduct and perceived "credibility" but if prosecutors and advocates also examine defendant behaviour, steps taken to ensure consent was given where the victim is over 16 and the greater context. These new guidelines remind CPS and police to do that.
Problems around victim credibility and a failure to thoroughly examine suspect behaviour have often arisen in cases involving accusations of rape against women with mental health problems, learning difficulties, or other vulnerabilities. What this week's guidelines do is make sure criminal justice professionals don't just build their case on "what did she do?" They make sure they thoroughly examine the defendant as well. Sarah Green, Acting Director of the End Violence Against Women Coalition
These proposals place greater emphasis on obtaining clear information from alleged perpetrators about why they believed they had consent. That emphasis seems intended to shift focus away from the presumptions of investigators that acts are lawful until shown to be otherwise.
The Crown Prosecution service is right to worry about how we investigate and prosecute sexual offences, and reports that this places the burden of proof entirely on the defendant are misleading, but it is wrong to go about what appears to be an assault on the level playing field of our criminal justice system and the presumption of innocence. Demanding that defendants be able to show consent, rather than keeping the onus entirely on the prosecution to satisfy a jury beyond reasonable doubt that no such consent has been given would amount to a fundamental shift of evidential burden in the justice system.
For a system that works so well overall in securing convictions across the range of offences, the suggestion that in one area it is the legal process which might be flawed is suspicious. Further investigation should be undertaken before uprooting fundamental tenets of the justice system. There may be significant cultural and social issues which require our attention in order to improve the conviction rate for sexual offences, but most of these affect the nature of a jury trial.
The presumption of innocence protects individuals from the might and power of the state. It is right that for the Crown to incarcerate citizens, they must always be the ones to prove guilt beyond reasonable doubt. Rupert Myers, barrister and writer
Are these new guidelines a welcome new tool in the fight against sexual violence? Or are they not necessary, or even harmful in undermining the presumption of innocence? We asked two experts to give us the case for and against.
Yes—examine defendants too
This announcement is not a change in the law, and it hasn't come out of nowhere—these are simply new guidelines for working professionals reminding them of the existing law on consent, which is that one party must give consent and the other party must seek consent, and the party who gives consent must be in a fit state to do so.We've had major child sexual exploitation (or "grooming") prosecutions in many towns over the last few years involving vulnerable young girls as victims and witnesses. These prosecutions can only continue and be successful if criminal justice professionals look not only at victim/witness conduct and perceived "credibility" but if prosecutors and advocates also examine defendant behaviour, steps taken to ensure consent was given where the victim is over 16 and the greater context. These new guidelines remind CPS and police to do that.
Problems around victim credibility and a failure to thoroughly examine suspect behaviour have often arisen in cases involving accusations of rape against women with mental health problems, learning difficulties, or other vulnerabilities. What this week's guidelines do is make sure criminal justice professionals don't just build their case on "what did she do?" They make sure they thoroughly examine the defendant as well. Sarah Green, Acting Director of the End Violence Against Women Coalition
No—don't change the burden of proof
The latest claim that police and prosecutors should demand to know from a person suspected or alleged to have committed rape whether he had obtained consent, coming as it does alongside proposals for prosecutors to forewarn witnesses of some aspects of questioning, is troubling.These proposals place greater emphasis on obtaining clear information from alleged perpetrators about why they believed they had consent. That emphasis seems intended to shift focus away from the presumptions of investigators that acts are lawful until shown to be otherwise.
The Crown Prosecution service is right to worry about how we investigate and prosecute sexual offences, and reports that this places the burden of proof entirely on the defendant are misleading, but it is wrong to go about what appears to be an assault on the level playing field of our criminal justice system and the presumption of innocence. Demanding that defendants be able to show consent, rather than keeping the onus entirely on the prosecution to satisfy a jury beyond reasonable doubt that no such consent has been given would amount to a fundamental shift of evidential burden in the justice system.
For a system that works so well overall in securing convictions across the range of offences, the suggestion that in one area it is the legal process which might be flawed is suspicious. Further investigation should be undertaken before uprooting fundamental tenets of the justice system. There may be significant cultural and social issues which require our attention in order to improve the conviction rate for sexual offences, but most of these affect the nature of a jury trial.
The presumption of innocence protects individuals from the might and power of the state. It is right that for the Crown to incarcerate citizens, they must always be the ones to prove guilt beyond reasonable doubt. Rupert Myers, barrister and writer
