Consent Is … beautiful, it is enthusiasm, it is free choice, it is mutual. It is NOT assumed, NOT a right of marriage, NOT in the clothes you wear.
These views, shared on Twitter this week in response to a new awareness campaign by the Crown Prosecution Service, which I head, show that the vast majority of people fully understand consent. And yet a myth persists that establishing whether someone is a willing sexual partner is somehow complicated, even unreasonable.
Some victims are still blamed in a way that simply does not happen for other crimes. If someone is burgled, the automatic response is not to ask: “What did you do to deserve that?” If someone has their car stolen they haven’t, historically, been expected to go through their car ownership history to see if the theft could be blamed on some “inadequacy” in their own behaviour to mitigate the guilt of the thief.
The issue is that for too long as a society we too have blamed victims – usually women – for letting themselves be raped; and we have forgiven perpetrators – usually men – for acting on some kind of instinct from which they seemingly must be protected.
This is insulting to both men and women, who in the vast majority of cases conduct affectionate, consensual, mutually agreeable relationships. The law is clear, and has been since 2003, that if one person does not consent to sexual activity, with the freedom and capacity to give that consent – and the other person doesn’t reasonably believe there is consent – then it is an offence. Of course it is the job of the Crown Prosecution Service to prove this in court.
Capacity means that someone who is under severe influence of drink or drugs; someone who may be young or have certain learning disabilities; or who is asleep, may not be able to consent to sex. Freedom means that someone under pressure – for instance, within an abusive relationship or under pressure from someone in a position of trust (like a teacher, doctor, priest), or power (like an employer, gang leader, prison officer) may also not be considered to have freely consented.
It is only a decade ago that the criminal justice system, as well as the care system, was effectively turning its back on vulnerable girls who were being groomed for sex in many of our city centres. We now properly recognise that as rape. But then, few people understood that the very vulnerabilities that made the rapists target those girls – drink, drugs, unstable backgrounds – were the ones we mistakenly used to excuse their attackers. Many of us thought that no jury would believe these girls who craved attention and went back for more. But since then we have seen successful convictions across the country, and we have seen a change in attitude.
But the issue remains less well understood when the situation is between two adults who know each other. I want that to change for a number of reasons.
First, it is my job to apply the law and bring prosecutions. If people do not understand the law they will not understand why prosecutors are in our courts with increasing numbers of sex offences – they now make up more than 30% of crown court trials.
While criminal cases where consent is the issue may be complex to prosecute and difficult to prove that does not mean that the basic concept of consent itself is difficult. And that is the second reason – I want people to feel comfortable that they know when they might be a victim of crime, or a suspect of crime. We should all know where we stand.
In our campaign we have used a clever animation that compares sexual consent to having a cup of tea. You wouldn’t force or pressure someone into having a cup of tea, and you can tell when someone wants a cup of tea or not. If someone says they want a cup of tea one minute, they can change their mind the next and should not be pressured to drink the tea. If this sounds simple, then so is the issue to consent to sex.
If you haven’t seen it, I suggest you watch this film and join the #ConsentIs … debate. And I would just like to end by addressing some recent myths and misunderstandings that I think are damaging if they are left unchecked. I use genders in the below examples, but I fully acknowledge that both men and women can be both perpetrators and victims of sexual offences.
1. Men now have to prove that they got consent
No. There has been no change in the law – the prosecution has to prove that consent was not given, but in considering that we will, of course, consider what made someone, for instance, reasonably believe that such consent was given. Similarly we will consider what made the woman consider that consent was not given. This is not in any way a change in the burden of proof. That remains with us.
2. Men and women are treated differently because a man will be prosecuted for having sex when he is drunk whereas a woman is treated as a victim
No. Gender is not a deciding factor. This has been discussed publicly as if it is clear cut – and I have read hundreds of these cases and they are never straightforward. I think there is an assumption that the authorities consider men the suspects and women the victims – that is not true, and is offensive to both genders. Each case is different.
3. A woman can change her mind after the event
No. The circumstances we consider will look at what made a suspect think that consent was given at the time. I think there is confusion here about the freedom and capacity to consent. In grooming cases, for instance, we have seen victims who did not realise that the pressure they were put under meant that they had not freely consented to sex. Evidence suggests that false rape claims are extremely rare.
4. Prosecutors will believe anything that a complainant tells them – and will prosecute on the word of that complainant alone
No. We should always look at all the circumstances of a case so that as full a picture as possible can be gathered. Where, in the past, it seems to me that an over-suspicious or sceptical view of complainants’ accounts pervaded, we now approach these cases without judgment, prejudice or preconceptions.