Alison Saunders, the Director of Public Prosecutions (“DPP”), recently announced new guidelines (“toolkits”) reminding police that people may be unable to consent to sexual activity when they are incapacitated through drink or drugs. This blog reviews this guidance and explores whether it says anything new and how it may be applied to cases where both parties are intoxicated.

At the first joint National Rape Conference held recently, the DPP, Alison Saunders, announced that prosecutors and police are being given the clearest instructions yet on assessing the issue of consent in rape cases. The DPP commented:

“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.... 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?"

At first glance this is merely restating the current position and does not reflect any change in law. Consent is clearly defined under section 74 of the Sexual Offences Act 2003 – someone consents if they agree by choice and have the freedom and capacity to make that choice. It is not disputed that if a person is unconscious or asleep, then they are unable to give consent.

What is arguably new is a development towards an expectation that a suspect might be required to demonstrate the basis of his belief in the complainant’s consent. There is a danger here that sight may be lost of the fact that in a rape allegation it is for the prosecution and not the defence to prove that the suspect did not reasonably believe that the complainant consented. Obviously where the defence is the suspect’s belief in consent then this will be probed by police in interview and by the prosecutor in cross-examination but it is important to keep sight of the fact that the burden of this proof remains on the prosecution and not the defence. The suspect is entitled and may well be best advised not to answer questions in police interview or to give evidence at trial in his own defence.

This becomes particularly relevant in cases involving intoxication through drink or drugs.

The new guidance focusses on the complainant being intoxicated. It is often the case that both a complainant and suspect in a rape allegation were intoxicated and have difficulty in remembering the critical events in detail (or sometimes at all); yet this guidance suggests that the suspect should be able to determine, after the event, whether and how consent  was expressed by the complainant and understood by the suspect. For a jury to convict a suspect it must be certain that the suspect did not reasonably believe that the complainant consented to the act. Where both parties are intoxicated to the extent that recall is muddled and there is little or no independent evidence going to consent, the reality is that such certainty is frequently in short supply.  No change to the approach by the police or the CPS will make the task of the jury to determine guilt or innocence any easier in such cases.

Rape is an undoubtedly difficult area for criminal justice. There is an expectation that there should be more rape convictions (though there are more people in prison in the UK for rape than in any other European country according to a recent report in The Times); yet certain categories of rape allegation are enormously difficult to prosecute successfully. A change that placed the burden of proving belief in consent on the suspect might be the logical conclusion of the ambition for more rape convictions but it is doubtful that such a radical change in the law would be widely welcomed if the implications were properly understood. This guidance stops short of this suggestion but appears to moving the debate in a way that is somewhat at divergence with the current law.