The DPP talks about rape (again)
24 January 2018
By Jonathan Rogers
It is the unfortunate lot of Alison Saunders, Director of Public Prosecutions (DPP) to be in charge of the CPS at a time when prosecutions for sexual offences are at a record high. It means that whenever she is interviewed, the subject is likely to come up.
It is a no-win area for any DPP. If the complainant’s version is plausible and it is not obvious exactly how it will be undermined, one would be accused of failing in one’s duty if one did not prosecute. But there are two sides to every story and in cases where there is no strong corroborating evidence, eg of violence, there can be no calling the outcome pre-trial. So there is never going to be a very high conviction rate, and always plenty of calls to give anonymity to accused men until they are convicted, or to apply special criteria to “historic” cases, and so on.
That much goes with the territory.
Worse still, with the savage cuts made to both police and prosecuting work, it is seemingly inevitable that avoidable errors will show the CPS and/or the police in an unflattering light after some collapsed prosecutions. We hope to say more in a future post about the recent spate of cases which have been discontinued when revelatory evidence supporting the defendant’s account is revealed by the police who investigated the case, often just days before the trial was due to start.
So in an interview with the Evening Standard this week,
the DPP set about reassuring the public that cases are not undertaken lightly, and that prosecutions are only started when prosecutors consider not only that they can prove that the complainant did not consent, but also that the defendant did not believe otherwise. That much, readers may know, is required to prove guilt in all rape cases, and so it should not be controversial.
But even then, she found herself on the front page of several other newspapers the following day. What could have gone wrong now?
What did the DPP say?
The DPP said
"So in some of the cases you can see why even though the complainant may think they were raped, there was a reasonable belief that they had consented, either through silence or through other actions or whatever. We are there not just to be able to prosecute cases where there has been an offence, but also not to prosecute cases where there isn’t sufficient evidence.”
The passage has come under scrutiny because it seems to suggest that where the accused has had sex with a complainant who did not consent, but who was at the time silent on the matter of her non-agreement, and not resisting in any way, her failure to resist may give the accused evidence of that necessary reasonable belief in consent, and such cases might not be prosecuted at all.
At first sight, this is indeed questionable. It is fairly well established that for the alleged victim to consent, which includes “agreement by choice” (Sexual Offences Act 2003, s.74), she* must have done something to indicate her agreement. Silence, or other failure to resist, is not enough. On the international stage, the point was well made in a seminal case in the European Court of Human Rights, where Bulgarian police were criticised for not recognising that a 14 year old girl, finding herself in the company of much older boys in an isolated area, might not have had the courage or capacity to voice her objections.
* I use the female pronoun only in an attempt to make this text easier to read; of course, men can be victims of rape as well, and everything said in this piece refers equally to male victims
And, if mere silence by itself does not communicate consent in law, then by the same token, the defendant cannot “reasonable believe” that consent is given, at least if the only reason for such a belief is silence or failure to resist on the part of the complainant.
But what did the DPP mean?
However, whilst it is indeed possible to criticise what the DPP said on those grounds, most probably it is not what she meant to say.
Earlier in the interview, it already appears that she is talking only about cases involving “acquaintances”, ie cases where the parties are already known to each other, and, impliedly, on good terms before the disputed sexual event. We might also infer that the DPP had in mind adult complainants with a general capacity to decide “yes” or “no” in such matters, and to try to express themselves accordingly. This is very important context.
In such cases it will often be easy enough to point to some friendly action which reasonably seemed to be an invitation to at least some sexual activity, eg a kiss, and which, on meeting no resistance, led to further activity, and so on, the complainant not resisting throughout. In these cases, the complainant’s silence and failure to resist in any way during the encounters will surely be relevant evidence for the accused. If the couple were on equal terms, and generally on good terms, such that the woman had little to fear from saying “no”, then many a jury will cease to wonder why the defendant might have thought that the original friendly sign was indeed meant to be an invitation to sexual activity.
Of course, there can be no hard and fast rule as such. Where the defendant is aware that he may be intimidating, or that his partner seems nervous, or is sexually inexperienced; or where he is aware that she may have been drinking and generally not in a good position to voice her wishes, then he should not get far by saying that he took her non-resistance to be consistent with an agreement by choice. But absent such matters, in a case when it would not be clear to him why the complainant would not resist if unwilling to engage, it should not be controversial to say that non-resistance may raise a doubt in the jury’s mind, and that anticipating this afford a good reason not to prosecute. And that, seemingly, is all that the DPP meant to say.
What do we mean by “acquaintances”, anyway?
One might still object. The reasoning would be that there may be several reasons, quite unknown to the defendant, why the complainant might not resist. There might, for example, have been a violent episode with another man of which the present man is unaware; she may be younger or less experienced that the defendant assumes – the list of reasons is endless, and many of them would be the sort of reasons which might not readily have been apparent to the defendant. And, so the argument goes, men should never make assumptions from failure to resist and it should never be thought reasonable for them to do so.
To some extent, that too is right. One reason why one dreads to use the term “acquaintance rape” is that the term itself is ambiguous. In the case of very recent acquaintances, eg those who have just started dating and who “know they don’t know” each other, there is probably much to be said for prosecuting men who, meeting only no resistance to their advances, are too quick to make assumptions. But cases involving closer acquaintances who remain on good terms, most obviously those with consensual sexual history already, but also those who have a good relationship of trust for other reasons, may be different. Here, lack of resistance might be thought reasonably to have reassured the man. Again, I suspect that these “closer” acquaintance cases are more precisely the sorts of cases that Saunders had in mind.
This important point, that “acquaintances” comes in shades of grey, is not discussed in the books but must be familiar to practitioners. A previous Lord Chief Justice often alluded to the fact that the same bare rules on consent, which are of general application, might operate in practice differently between cases involving virtual strangers as opposed to long-term acquaintances. So, to take other examples, it might be more likely for it to be reasonable for a person to infer agreement from conduct which by some way precedes the sexual activity in cases where the parties are well known to each other. Thus said Lord Chief Justice Judge (as he then was) in the Court of Appeal in R v Ciccarelli  EWCA Crim 2665, where he introduced the facts as follows:
It is important to emphasise at the very outset that we do not here consider the situation which arises between couples in an established relationship, who understand each other and what is and what is not appropriate and acceptable to them in their sexual relationship. We are not considering even a relatively short sexual relationship. The appellant and the complainant had met on about three previous occasions, when nothing romantic or sexual had occurred between them.
Lord Judge returned to the theme in the High Court in R (on the application of F) v DPP  EWHC 945 (Admin). Having ruled that a man may not rely on consent where he has deliberately departed from a condition relating to the sexual act, he emphasised that the point that, on the assumed facts, the importance of the condition was fully understood by the defendant at the time. He clarified that
… we are not addressing the many fluctuating ways in which sexual relationships may develop, as couples discover and renew their own levels of understanding and tolerance, their codes of communication, express or understood, and mutual give and take, experimentation and excitement.
So it should be nothing controversial to say that failure to resist may afford reasonable grounds for belief in consent in cases involving very close acquaintances. Distinctions between relatively new and closer acquaintances, in reality, crop up in all matters of determining consent and reasonable belief in consent. And no one should be surprised that the law in action goes beyond the bare principles in the textbooks in rape cases.
Was there a simple way for the DPP to say all this?
Probably not. I believe that the above explains what the DPP meant to say, but there is no way to say it shortly and simply, and little likelihood that any newspaper article, with the preference for one or two sentence quotes, would properly convey such a message.
Some might wonder whether nothing at all should be said about rape cases, if there is a risk of the message being misunderstood. But there it is. It is part of the DPP’s role to engage with the public and explain what her organisation does; and rape cases are all that many people want to ask her about. Who would want to be the DPP?