The Director of Public Prosecutions (DPP) Alison Saunders is to issue new guidance to police forces and prosecutors on the treatment of allegations of rape, viz:
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?”
This puts men in a tremendously vulnerable position, because rape cases commonly do not rest on whether intercourse has taken place or not but whether it was consensual. Consequently, prosecutions are inevitably tricky, frequently coming down to one person’s word against another with little if any supporting evidence as to who is telling the truth. To muddy the evidential waters further the vast majority of rape allegations are made against men who are known to the accuser with a significant proportion involving someone with whom they have had a sexual relationship before the rape.
What does meaningful consent mean?
The new guidance means that a man will take his life in his hands if he has intercourse with any woman who has taken because she had taken drink because how on Earth is he to prove the woman was compos mentis when they had sex? . To legally give her consent would a woman have to be stone cold sober, with drink in her but talking fluently, slurred in her speech but aware of where she was and what she was saying, inebriated but able to walk unaided or so drunk that she needed to be helped to walk? Or would she have to be unconscious? Then there is the question of change of mood. A person who has drunk alcohol may be perfectly coherent but much less inhibited and do things they would not do when sober. Could anyone who has taken drink be considered fully competent to make the decision to have sex?
The same would apply to drugs. It would all very subjective. There would be no objective point short of someone being unconscious where it would be possible to categorically say consent was not meaningfully given. Consequently, any claim short on proven insensibility should not meet the criminal evidential standard of beyond a reasonable doubt.
Apart from the subjectivity attached to the woman’s condition there is also the question of who would provide evidence that a woman was unable to give meaningful consent. Often the only witnesses likely to have seen the woman shortly before she left a bar or a pub with a man are people were less than sober themselves. Take a common example, a group of men and women go on a pub crawl and at closing time a couple pair off. Next day the woman makes a claim of rape and cites the other people on the pub crawl as witness to her drunken state before leaving the pub. The other people may say they thought she was too drunk, pretty drunk or drunk but not staggering drunk. The problem is that those witnesses themselves were most probably drunk and in no state to rationally judge another person’s drunkenness or appear as credible witnesses. .
Particularly pernicious is the recent introduction into English courts of the practice of allowing women alleging rape to simply say they were too drunk to remember what happened with this being taken as evidence of an inability to give consent . It emasculates the defence of any defendant claiming that consent occurred because, intended or not, it is a most efficient way of avoiding meaningful cross-examination by the defence. What could defence counsel ask the alleged victim if she says she has no recollection of what happened and sticks to the story? If the alleged victim has a past history of sleeping around defence counsel might make something of that (although judges have been primed to treat such questioning with hostility), but they would not be able to attack the question of whether she had given consent if consent is not dependent on what the alleged victim says but her physical state at the time of the alleged rape.
It is also very important to understand that having no recollection of what happened after drink has been taken does not mean that the woman was not capable of saying yes. It is quite possible for a woman to have given consent having taken a good deal of drink and yet be unable to remember what happened the next day either at all or with any accuracy. This is common knowledge. Most British adults at some time will have gone out for a heavy drinking session and woken up the next day unable to remember what happened the night before. Nonetheless, when meeting up with the people they were with during the drinking bout they discover that they were fully conscious and physically capable during the time spent drinking. They may also have been sober enough to do something complicated such as having made a journey home which required them to catch the correct bus or train, get off at the right station and find their way home , yet have no recollection of doing so.
What goes for alcohol applies to drugs, both in terms of the incapacitating effects and changes in psychological state. However, with drugs the varieties of mood and consciousness alteration is much more varied.
But the dangers for men go way beyond drink and drugs. The guidance will also cover circumstances 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 woman had mental problems or learning difficulties or the rapist was a husband or partner on whom the woman was financially dependent. In all these situations the judgement would, like the question of whether someone is sufficiently incapacitated by drink or drugs , be very subjective.
Why is only the man to be held responsible?
The onus to be responsible is all on the man. What about the woman’s responsibility to take account of the man’s intoxication? If a woman can be deemed to be morally incapable through drink or drugs of being responsible enough to give consent why should not a man in the same situation be given the same licence? For example, suppose a woman goes back to a man’s home after an evening’s drinking, could it not reasonably be argued that the woman was behaving irresponsibly because (1) she must have known that the mere fact that she has gone back to the man’s home signals to the man that sex is on the cards and (2) the woman is going to the man’s home knowing that the man is drunk enough to have the normal moral brakes off? Why should the woman effectively be treated as having no moral dimension in such circumstances?
The coaching of witnesses
Not content with grossly changing the evidential burden for rape, the DPP has also in practice relaxed the rules on coaching prosecution witnesses , something which will have a particular value for the prosecution in rape cases because so much rests on the performance of accuser and accused when giving evidence. The DPP announced the change in this fashion:
‘ Miss Saunders said: “This aims to give prosecutors the confidence to engage with victims and witnesses without fear of any allegations of ‘coaching’ or going too far.
“It’s about telling them what the defence case is likely to be in general terms. But it is not about telling them what their evidence should be.”
Miss Saunders said the guidance was likely to play an important role in rape and other sex cases but also in assault or harassment prosecutions.’
Even giving such general information would amount to the coaching of witnesses because they would not come fresh to the witness box, and human nature being what it is the odds are that if you give people half an inch they will take a mile or at least substantially more than an inch. Even as things were before this change you can bet illicit coaching goes on, especially on the part of defendants and defence witnesses..
Why does this matter? The coaching of witnesses in England is considered to be forbidden, although the legal position is not entirely clear. Nonetheless, it is generally accepted that coaching should be avoided. There is an excellent reason for this: the evidence a witness gives is meant to be their honest recollection based on what they experienced. That can be simply their unaided memory or what they have written down in for example a diary or statement. If they are rehearsed, as they can be in other jurisdictions such as the USA, the evidence they give will inevitably be different from what they would give if un-coached. For example, knowing that sexual history of an alleged victim will be part of the defence will most probably set the alleged victim thinking of how she can deal with questions about any embarrassing or compromising behaviour in her past in a way she probably would not do if left unaware of what the defence against her accusations was to be. Coaching also robs counsel of the element of surprise when cross-examining, a major weapon in their armoury.
The anonymity of alleged rape victims
All of this new distortion of the English judicial system comes on top of the hobbling of it by granting the alleged victims of sexual offences anonymity for life whether or not a conviction is obtained. This amounts to secret justice which is wrong in principle because how can the public judged that justice is being done. In the case of rape allegations this secrecy could also severely disadvantage a defendant.
The argument is routinely made by the politically correct that publicising the name of the accused names in rape cases is useful because it may persuade other women to come forward to say that an accused has also sexually molested them . But the same argument applies to making the names of alleged victims of rape public, because a woman may have a record of making such allegations and publicising her name and that fact she is making an allegation of rape could persuade people who were the subject of false allegations of rape or who simply know someone who has made such claims before to come forward to cast doubt on the veracity of an accuser.
Why is this happening?
It is because the rate of successful prosecutions is low compared with the number of claims of rape made to the police – approximately 1,000 successful prosecutions in the year to June 2014 . Almost inevitably in these politically correct times there is pressure from those with power wealth and influence to treat the low rate of conviction not as a natural consequence of the difficult nature of the evidence – the man’s word against the woman’s – in most cases, but as a flaw in the way the police and the Crown Prosecution Service (CPS) handles rape allegations. The fact that we have a woman DPP probably acts as a catalyst for such changes.
Nor is this likely to be the end of alterations to rape allegations. Saunders appeared on the BBC Radio 4 programme Unreliable Evidence on 27 January 2015. The programme was devoted to the changes to the way rape allegations are treated. The question of false rape allegations came up and there was a serious discussion amongst the contributors to the programme about changing the charge for such crimes from perverting the course of justice (a heavyweight law carrying a maximum of life imprisonment) to the much less serious charge of wasting police time. If such a change did take place it would be wholly wrong because a false accusation of rape can blight a man’s life. If anything the sentences such women get are far too lenient because they are so much less than the average rapist gets. There is a good case for saying women convicted for making false accusation should receive the same sentence the person they have falsely accused would have got if they had been wrongly convicted of rape based on the false evidence.
Much was made of the suicide of Eleanor de Freitas, 23 who took her life after being charged with perverting the course of justice by making a false accusation. This was an exceptional case because this was originally a private prosecution which was then taken over by the CPS, a very unusual occurrence. This suggests the evidence of a false accusation must have been very strong . Saunders responded to the suicide with this:
“I am very saddened by the tragic death of Eleanor de Freitas.
“I have asked the team which dealt with this case for a full explanation which addresses all of the de Freitas family’s concerns.
“I appreciate the family’s unease which is why I am looking at this personally in order to satisfy myself of the detail surrounding all the stages of the case.
The death of a young woman is a very sad thing but a justice system cannot be run on the basis that people may or may not be suicide risks. Suicides to avoid going to court occur in many types of cases, for example, those involving accusations of paedophiles. Few if any people would suggest that prosecutions of such people should not go ahead because they may kill themselves. It is true that Eleanor had been diagnosed with bi-polar disorder but if everyone diagnosed with bi-polar or other mood altering mental condition was excused prosecution I suspect that huge numbers of criminals would miraculously suddenly develop the symptoms. In the end people have to take responsibility for what they do unless they are so mentally incapacitated that they do not realise what they are doing. A prime example of this is committing crimes whilst under the influence of drugs or alcohol. The drugs or alcohol are not considered an excuse for committing a crime.