Men must prove a woman said 'Yes' under tough new rape rules

New guidance will be issued to all police forces and prosecutors as part of a 'toolkit' to move rape investigations into the 21st century

By Gordon Rayner, and Bill Gardner

Men accused of date rape will need to convince police that a woman consented to sex as part of a major change in the way sex offences are investigated.

The Director of Public Prosecutions said it was time for the legal system to move beyond the concept of “no means no” to recognise situations where women may have been unable to give consent.

Alison Saunders said rape victims should no longer be “blamed” by society if they are too drunk to consent to sex, or if they simply freeze and say nothing because they are terrified of their attacker.

Instead, police and prosecutors must now put a greater onus on rape suspects to demonstrate how the complainant had consented “with full capacity and freedom to do so”.

Campaigners described the move as “a huge step forward” in ensuring fewer rapists escape justice.

New guidance will be issued to all police forces and prosecutors as part of a “toolkit” to move rape investigations into the 21st century.

Mrs Saunders said: “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.

“It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink.

“These tools take us well beyond the old saying 'no means no' - it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism.

“We want 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?”

Mrs Saunders, who was speaking at the first National Crown Prosecution Service/Police Conference on Rape Investigations and Prosecutions in London, said the guidance should not only cover situations where someone is incapacitated through drink or drugs, but also where “a suspect held a position of power over the potential victim - as a teacher, an employer, a doctor or a fellow gang member”.

The ability to consent to sex should also be questioned where the complainant has mental health problems, learning difficulties or was asleep or unconscious at the time of the alleged attack, she said.

The new guidance also covers domestic violence situations and those where “the complainant may be financially or otherwise dependent on their alleged rapist”.

Around 85,000 women per year are victims of rape in the UK, of whom 90 per cent know the perpetrator.

The most recent figures showed that just 15,670 women reported rapes to the police, often because they thought it would be impossible to prove the offence, or because they did not have any confidence in the police’s ability to help them, with only 1,070 convictions resulting from the 2,910 cases that got to court.

The rape conference was designed partly to address the long-standing gulf between rape allegations and convictions, as well as a variation between different forces in the way they deal with rape allegations.

Metropolitan Police Assistant Commissioner Martin Hewitt, the Association of Chief Police Officers lead on adult sex offences, said: “As report after report has shown, there is still far too much variation in the way that forces move a complaint of rape through the system.

“Reporting of sexual offences is up 22 per cent in the latest statistics because of increased confidence in our service and recording but we have further to go.

“We need to tackle the iconic issues of 'no further action' and, particularly, 'no crimes' head on and reduce inconsistencies in our processes so that we can send a clear and unequivocal message to victims about how they will be treated.”

Sarah Green, director of the End Violence Against Women Coalition, said: “Although we have a long way to go in securing justice for all survivors of rape, the new guidance is a huge step forward in that it will help ensure that juries are asked to look in detail at the behaviour of defendants as well as at that of the complainant.

“It makes clear that consent must be sought as well as given, and it spells out issues around power and vulnerability of some victims which police, prosecutors and ultimately juries should take into account.

“We believe that broader social attitudes are slowly changing as, for example, we better recognise that girls who are sexually exploited by older men do not ‘consent’ to their abuse, and that men in positions of power target and abuse vulnerable victims.”

“Better recognition of and more justice for these crimes will ultimately help increase the deterrent to commit them.”