John Montague, Temporary Deputy Chief Crown Prosecutor, CPS Wessex said: “Rape is one of the most serious of all criminal offences. It can inflict lasting trauma on victims and their families and our aim, like with all cases, is to prosecute as effectively as possible.
“The CPS decides whether or not to prosecute in accordance with the Code for Crown Prosecutors. This Code involves a two stage process. Firstly, we must be satisfied that there is enough evidence to provide a realistic prospect of conviction against a Defendant on a charge. This is known as the Evidential Test. If the case does not pass the evidential stage, it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, we must then decide if a prosecution is needed in the public interest. We believe that rape is so serious that a prosecution is almost certainly required in the public interest.
“In deciding whether there is enough evidence to prosecute rape cases, we do not allow any myths and stereotypes to influence our decisions, and will robustly challenge such attitudes in the courtroom. For example, it is a myth that rape occurs between strangers in dark alleys. In fact, the majority of rape victims, who can be male or female, know their rapist. Date or acquaintance rape is very common and we know that victims are often raped in their own homes. We recognise that all rape cases are equally serious and traumatic for the victim and have devastating effects on their families.”
MYTHS AND STEREOTYPES
It is a myth that women who drink alcohol or use drugs are asking to be raped and the CPS is wholly unaffected by such a myth, which both attempts to excuse rape and blame the victim and re-victimises and stigmatises the victim. The facts are that:
• Women have the same right to consume alcohol as men
• Being vulnerable does not imply consent
• If a women or man is unable to give consent because he/she is drunk, drugged or unconscious, it is rape, and
• Only the rapist is responsible for the rape.
“If she didn’t scream, fight or get injured, it wasn’t Rape.”
Again, the facts are:
• Victims in rape situations are often legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives.
• The victim’s perception of threat influences their behaviour.
• Rapists use many manipulative techniques to intimidate and coerce their victims.
• Victims in a rape situation often become physically paralysed with terror or shock and are unable to move or fight, and
• Non-consensual intercourse doesn’t always leave visible signs on the body.
“If the victim didn’t complain immediately, it wasn’t rape.”
Again, the facts are that the trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint. This fact has been recognised by the Court of Appeal in a case where it was held that Judges are entitled to direct juries that due to shame and shock, victims of rape might not complain for some time and that a late complaint does not necessarily mean that it is a false complaint.
“It isn’t rape if you are married.”
The logical implications of this are that a husband has the right to rape his wife and that a wife does not have the right to withhold consent. In fact, rape in marriage was criminalised in statute in 1994 and there is no distinction in law between a man who rapes his wife and other rapists. The law remains the same whether rape occurs within a relationship or as a stranger rape. In other words, ‘no consent equals no sex’.
LEGISLATION AND CONSENT
The current law defining rape is contained in the Sexual Offences Act 2003 which came into force on the 1st May 2004. The Act extends the definition of rape to include the penetration by a penis of the vagina, anus or mouth of another person. The Act also changed the law about consent and belief in consent. Before the 1st May 2004, the Courts had defined consent as having its ordinary meaning. However, under the Sexual Offences Act 2003, a person consents if he or she agrees by choice and has the freedom or capacity to make that choice. The essence of this definition is the agreement by choice. The law does not require the victim to have resisted physically in order to prove a lack of consent.
The Act requires the defendant to show that his belief in consent was reasonable. In deciding this, a jury must have regard to all the circumstances, including any steps he has taken to ascertain whether the victim consented. In certain circumstances, there is a presumption that the victim did not consent to sexual activity and the defendant did not reasonably believe that the victim consented, unless he can show otherwise. Examples of circumstances where the presumption applies are where the victim was unconscious, drugged, abducted or subject to threats or fear of serious harm.
Proving the absence of consent is usually the most difficult part of a rape prosecution and is the most common reason for a Rape case to fail. Prosecutors will look for evidence such as injury, struggle or immediate distress to help them prove that the victim did not consent, but frequently there may be no such corroborating evidence. This does not mean that these cases can never be successfully prosecuted, but it does mean that they are more difficult. The question of capacity to consent can be a particularly important issue when a victim is voluntarily intoxicated. In such cases, prosecutors must carefully consider whether the victim did in fact have the capacity to consent and what further supporting evidence can be obtained to demonstrate that the victim was so intoxicated that he or she had lost that capacity. For example, evidence from witnesses who can attest to the extreme intoxicated state of the victim and/or any medical or expert evidence on that aspect and blood-levels of alcohol and the likely effects of such.
In 2007, the Court of Appeal made the following comments on voluntary intoxication in the case of Crown –v- Bree
• The definition of consent in the 2003 Act sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant – if through drink (or any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion she is not consenting and subject to questions about the defendant’s state of mind, if intercourse takes place this would be rape.
• Where the complainant has voluntarily consumed even substantial quantities of alcohol but nevertheless remains capable of choosing whether or not to have intercourse and in drink agrees to do so, this would not be rape.
• Capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not however, is fact specific.
• When summing up to the jury in rape cases, assistance should be given as to the meaning of capacity in cases of voluntarily induced intoxication and to what extent they could take that into account in deciding whether the complainant had consented.
It must then be established whether the complainant was in a position to make that choice freely, which is not constrained in any way. Assuming the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees the activity by choice.”
SUPPORT FOR VICTIMS AND WITNESSES
The CPS is committed to taking all practicable steps to help rape victims and witnesses through the often difficult experience of becoming involved in the Criminal Justice System. Support is available at a very early stage from the police and other support agencies, which can continue throughout the life of the prosecution and we make sure that appropriate arrangements are made for court proceedings, called Special Measures.
John Montague, Temporary Deputy Chief Crown Prosecutor, CPS Wessex explained that: “All complainants in respect of sexual offences who are witnesses have automatic eligibility for Special Measures when giving their evidence. This includes playing to the court the victim’s or witness’s video-recorded interview (previously taken by the Police during the course of the investigation), and answering any questions put to them by the defendant’s lawyer in cross-examination with the aid of a live video-link. It can also include giving evidence from behind a screen in a courtroom to prevent the victim (or other witness) and the defendant seeing each other, and use of intermediaries for vulnerable witnesses such as speech and language therapists.
“The CPS and the police have signed a joint National Protocol agreeing to adhere to best practice and policies in the investigation and prosecution of rape cases. As part of our commitment to improve the prosecution of rape cases, we have a network of specialist prosecutors who are trained and experienced in prosecuting rape and other sexual offence cases, and who work closely with the police to ensure that all possible avenues of evidence are explored and that, wherever possible, the same Specialist Prosecutor will be responsible for prosecuting rape cases from the beginning to the end. This enables us to ensure that the victim is provided with the best possible support throughout the progress of the case.
“Many victims and witnesses are concerned about their safety and fear that personal details or information about them might become public knowledge and place them at risk or further attack. Victims of rape and serious sexual offences are entitled as a matter of law to anonymity in the media, even if their name has been given in court. Another concern of rape victims is that they could be asked about previous sexual behaviour beyond the circumstances of the offence in question. Evidence of previous sexual history will only be permitted if statutory criteria are met and the court considers that it may reach an unsafe conclusion on an issue to be decided in the case if such evidence was not admitted. Prosecutors are robust in dealing with any such applications by the defence and are active in making appropriate objections to any inappropriate questioning.
Further information for victims and witnesses can be found at www.cps.gov.uk. In addition the CPS also has a specific policy regarding the prosecution of rape cases, also available on our website.
We are currently establishing a new Rape and Serious Sexual Offences Unit for Wessex which will be operational from September 2011.
John Montague Temporary Deputy Chief Crown Prosecutor, CPS Wessex added: “We would like to take this opportunity to appeal to any victims of rape to have the confidence to report it to the police secure on the knowledge that we will do all that we can to deal with the allegation robustly and provide a high level of tailored support to the victim”.