Moving Beyond 'No Means No': Questions Raised over New UK Guidelines on Consent in Rape Cases

Campaigners in the UK are divided over whether new guidelines on the issue of consent in rape cases go far enough.

The Crown Prosecution Service (CPS) presented instructions to police and prosecutors in England and Wales this week, aiming to clearly identify situations in which a potential victim may have been unable to provide consent, and make suspects prove to officers that consent had been given.

Alison Saunders, CPS director of public prosecutions, said she hoped the advice would help clear up "myths and stereotypes" around consent, adding that the guidance would "take us well beyond the old saying 'no means no.'"

The cases in question include where a victim was incapacitated through drugs or alcohol, is held under a position of power (by a teacher or gang member, for example), is perhaps less able to consent due to mental health problems or learning difficulties, or is unconscious at the time of the alleged attack.

Speaking on Wednesday at the first national CPS/police rape conference, Saunders added that general views on rape need to be challenged. "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."

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Saunders said that the CPS wants 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?"

Sarah Green, acting director of the End Violence Against Women Coalition, told VICE News she welcomed the new guidelines, and emphasized the importance of looking at the context of an incident when dealing with rape cases.

'The complainant's and suspect's behavior should be looked at properly, and then the context of the whole incident should be looked at. It should not simply be a case of looking at what she did and what she said."

Green said that the CPS guidance simply establishes what is stated in the 2003 Sexual Offences Act: "So if someone is prosecuted for a sexual offence, that's what has to be tested in court. This means that you don't just look at the victims' behavior. You look at the alleged perpetrator's behavior, and the context of the whole thing."

Yet Nicola Mann, a spokeswoman for Women Against Rape (WAR), told VICE News that the guidance is a case of too little, too late. "We've seen many new guidelines issued by the CPS over the years in how to deal with rape. But what they are saying is what they should already be doing, and the problem is that what they should be doing isn't adhered to. And when they don't do what they are meant to be doing and victims try and fight for justice and challenge their decisions, we get little justice."

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Mann described when one woman approached WAR because the police had closed her case due to an issue surrounding consent. The woman said that she had explained to police that when the alleged perpetrator had started making advances towards her, she asked him what he was doing, and cried throughout the alleged rape. When recounting her experience to WAR, she claimed that police had told her that her argument for a lack of consent was not strong enough.

"If someone said 'What the fuck are you doing?' and then cries throughout a rape, surely that signals to the perpetrator that they are not consenting to sex?" Mann asked.

"These are issues that we're up against. We're up against really poor policing, police not taking investigations seriously or gathering the evidence. When Alison Saunders said that for too long society has made the issue of consent unclear… it's not society that prosecutes, it's the police and the courts."

Mann maintained that, "too often we're failed by the system, because no one is held accountable for bad practice. Guidelines aren't going to change those basic facts."

The CPS guidelines were released just over a week after statistics indicated that the number of recorded rapes in England and Wales has risen. According to the latest figures from the Office for National Statistics, the number of rapes recorded by police in the region rose by 31 percent to 24,043.

However, the number of attacks committed is likely to be much higher, as according to government estimates only 15 percent of rapes and other sexual offences in England and Wales are reported to the police.

Follow Kayleen Devlin on Twitter: @KayleenDevlin

Photo via Flickr