The new consent guidelines, what they mean and what people think about them

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Men accused of rape now must convince police their accuser consented to sex, in a huge overhaul of how sex offences are investigated.

The Director of Public Prosecution has said in cases where the victim was drunk or high, their ability to consent to sex should be questioned.

The law already demands consent has to be given fully and freely but the new guidance instructs officials to look at the entire context of a rape allegation.

Here is an explanation of the new laws and how they change the way rape cases are handled.

What is the new law?

The Crown Prosecution Service, who take rape cases through court, want to dispel “myths and stereotypes” about rape.

The new law makes clear behaviour such as staying silent or using contraception does not signify consent.

It specifies consent cannot be given when someone is incapacitated through drink or drugs or when a suspect held a position of power over the potential victim as a teacher, employer or doctor.

And the ability to consent to sex should be questioned when someone has mental health issues, learning difficulties or was asleep or unconscious when the alleged attack happened.

Alison Saunders CPS

Alison Saunders

Why is there a new law?

Crown Prosecution boss Alison Saunders explained the new guidelines were part of a new “toolkit” to move investigation past the ice of “no means no”.

She 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?”

Who likes it

Anti-rape campaigners have described the new laws as a “huge step forward”.

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.”

Who hates it

Senior barrister David Osborne condemned the new guidelines and thinks men should be cleared of rape if a female victim said she was too drunk to consent to sex.

In a raving blog post titled “She Was Gagging For It”, lawyer David explained his outrage.

David Osborne

David Osborne

He said: “Consent is consent, blind drunk or otherwise, and regret after the event cannot make it rape. I have a simple solution.

“If the complainant (I do not refer to her as the victim) was under the influence of alcohol or drugs, or both, when she was ‘raped’, this provides the accused with a complete defence. End of story and a victory for fairness, moderation and common sense!”

He added: “It is also correct in my own experience that most of those accused of rape are acquitted, not simply as a result of the brilliance of my advocacy, but because the jury did not believe beyond a reasonable doubt that the victim did not consent, and that, at the end of the day, is the proper and only test to be applied.”