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| Don’t misread Alison Saunders. Silence during a rape doesn’t mean consent | Don’t misread Alison Saunders. Silence during a rape doesn’t mean consent |
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| Thu 25 Jan 2018 11.08 GMT | |
| Last modified on Thu 25 Jan 2018 16.20 GMT | |
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| Let’s start with clearing up the law. In the overwhelming majority of rape trials, the defendant will assert that the complainant was consenting, or that they reasonably believed the complainant was consenting. | Let’s start with clearing up the law. In the overwhelming majority of rape trials, the defendant will assert that the complainant was consenting, or that they reasonably believed the complainant was consenting. |
| In such cases, the prosecution will have to make a jury sure, not only that consent was absent, but that the defendant believed it to be absent. This defence of reasonable belief has two components, and is almost completely fact-sensitive. The first component is whether the defendant genuinely believed that the complainant was consenting. The second is whether, in all the circumstances, it was reasonable for him to form that belief. A jury’s grasp of those circumstances will embrace all the evidence in a case, including any efforts a defendant has made to ascertain whether the complainant was consenting. | In such cases, the prosecution will have to make a jury sure, not only that consent was absent, but that the defendant believed it to be absent. This defence of reasonable belief has two components, and is almost completely fact-sensitive. The first component is whether the defendant genuinely believed that the complainant was consenting. The second is whether, in all the circumstances, it was reasonable for him to form that belief. A jury’s grasp of those circumstances will embrace all the evidence in a case, including any efforts a defendant has made to ascertain whether the complainant was consenting. |
| Given all this, it is hazardous to contend, as the director of public prosecutions (DPP), Alison Saunders, did on Monday, that rape victims who stayed silent during an assault may have left the defendant believing that there was consent. Any attempt to draw up even a broad list of possible relevant factors is difficult, and it’s impossible to compile an exhaustive one. | Given all this, it is hazardous to contend, as the director of public prosecutions (DPP), Alison Saunders, did on Monday, that rape victims who stayed silent during an assault may have left the defendant believing that there was consent. Any attempt to draw up even a broad list of possible relevant factors is difficult, and it’s impossible to compile an exhaustive one. |
| I don’t know whether, in giving this interview, the DPP was seeking to mollify concerns of unconscious bias on the part of prosecutors in making decisions about whether to charge a suspect and the disclosure of material that might assist his defence. The interview, after all, came after a series of collapsed rape trials in which material was not properly disclosed. Saunders certainly seemed to want to shed some light on the crown prosecution service’s decision-making processes in sexual allegations. | I don’t know whether, in giving this interview, the DPP was seeking to mollify concerns of unconscious bias on the part of prosecutors in making decisions about whether to charge a suspect and the disclosure of material that might assist his defence. The interview, after all, came after a series of collapsed rape trials in which material was not properly disclosed. Saunders certainly seemed to want to shed some light on the crown prosecution service’s decision-making processes in sexual allegations. |
| But is the DPP guilty of anything more than inelegant expression? The reported remarks (“So in some cases you can see why … there was a reasonable belief that they had consented, either through silence or through other actions or whatever”) speak of someone attempting to reduce an undertaking that requires painstaking analysis and reflection to a digestible soundbite. | But is the DPP guilty of anything more than inelegant expression? The reported remarks (“So in some cases you can see why … there was a reasonable belief that they had consented, either through silence or through other actions or whatever”) speak of someone attempting to reduce an undertaking that requires painstaking analysis and reflection to a digestible soundbite. |
| Why is the question of a reasonable belief in consent so vexed that the DPP is criticised for how she articulates it? | Why is the question of a reasonable belief in consent so vexed that the DPP is criticised for how she articulates it? |
| As in life, so in law; the question of silence during sexual contact can never stand alone. It finds significance in its context and, accordingly, can indicate anything on a spectrum from noiseless sexual joy to frozen terror. The characterisation of Saunders’s remarks on the topic as a “warning” to rape complainants is both unhelpful and alarmist. It is disappointing – to say the least – that any serious airtime is still given to the promotion of the idea that victims of sexual violence should react in particular ways in order to be believed. | As in life, so in law; the question of silence during sexual contact can never stand alone. It finds significance in its context and, accordingly, can indicate anything on a spectrum from noiseless sexual joy to frozen terror. The characterisation of Saunders’s remarks on the topic as a “warning” to rape complainants is both unhelpful and alarmist. It is disappointing – to say the least – that any serious airtime is still given to the promotion of the idea that victims of sexual violence should react in particular ways in order to be believed. |
| The responsibility for any assault lies unequivocally with the assailant, and no one who has suffered sexual violence should be led to believe otherwise. The court of appeal has repeatedly stated that there is no evidential obligation for a complainant to have said or done anything in order for a guilty verdict to be returned. At trial level, judges now give standard directions to the effect that juries are to set aside any stereotypical assumptions about how victims and assailants act and react. | The responsibility for any assault lies unequivocally with the assailant, and no one who has suffered sexual violence should be led to believe otherwise. The court of appeal has repeatedly stated that there is no evidential obligation for a complainant to have said or done anything in order for a guilty verdict to be returned. At trial level, judges now give standard directions to the effect that juries are to set aside any stereotypical assumptions about how victims and assailants act and react. |
| Whether the introduction of this measure has had any discernible impact on the verdicts returned is unknowable – juries’ deliberations are kept forever secret. It is arguable, however, that the judicial injunction to caution comes too late; by the time people are being selected for jury service, their attitudes to sexual politics are already deeply embedded. Any effective challenge to those attitudes will take more than a few choice words from the judge’s bench. | Whether the introduction of this measure has had any discernible impact on the verdicts returned is unknowable – juries’ deliberations are kept forever secret. It is arguable, however, that the judicial injunction to caution comes too late; by the time people are being selected for jury service, their attitudes to sexual politics are already deeply embedded. Any effective challenge to those attitudes will take more than a few choice words from the judge’s bench. |
| Maybe our consistent focus on the conviction rate in rape cases has skewed our expectations. The strides made in the questioning of rape complainants and vulnerable witnesses in recent years are remarkable. But why are there so many allegations? Why is the question of a reasonable belief in consent so vexed that even the DPP is criticised for how she articulates it? | Maybe our consistent focus on the conviction rate in rape cases has skewed our expectations. The strides made in the questioning of rape complainants and vulnerable witnesses in recent years are remarkable. But why are there so many allegations? Why is the question of a reasonable belief in consent so vexed that even the DPP is criticised for how she articulates it? |
| Perhaps we are asking the criminal justice system to do too much of the heavy-lifting, educationally speaking. The actor Jameela Jamil recently advanced the depressing, but persuasive, view that far too many men and boys regard consent not as an irreducible minimum, but as a gold standard to be aspired to. As long as this mislocation of consent continues, so will the misreading of remarks intended to educate. | Perhaps we are asking the criminal justice system to do too much of the heavy-lifting, educationally speaking. The actor Jameela Jamil recently advanced the depressing, but persuasive, view that far too many men and boys regard consent not as an irreducible minimum, but as a gold standard to be aspired to. As long as this mislocation of consent continues, so will the misreading of remarks intended to educate. |
| • Sarah Vine is a criminal barrister practising at Doughty Street Chambers. She is the wellbeing director of the Criminal Bar Association | • Sarah Vine is a criminal barrister practising at Doughty Street Chambers. She is the wellbeing director of the Criminal Bar Association |
| Rape and sexual assault | |
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| Crown Prosecution Service | |
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