The DPP, Alison Saunders, has released an aide memoire on the issue of consent in sexual cases, for the use of prosecutors and investigators. The document only applied to consent under what many of us still find ourselves calling the “new law”, that is the Sexual Offences Act 2003. The SOA 2003 was a modernising Act which has in fact been in force since 1 May 2004. The media reaction to the aide-memoire was remarkable in its inaccuracy: The Daily Telegraph went with Men must prove a woman said ‘Yes’ under tough new rape rules and the Daily Mail continued with the shifting burden of proof theme claiming these were tough new rules for police investigating date rape..
What is remarkable about these responses? They are from national newspapers with large readerships and they implied that the DPP was changing the law on rape; that she was issuing “tough new rules”. Now, I can forgive the journalists for not knowing the law on consent inside out, but it is not difficult for them to contact lawyers with expertise in the field for clarification instead suggesting to readers that the DPP can and did change the law by, amongst other things, reversing the burden of proof wholly misleads the public. So, what is the law?
Consent under the SOA 2003
The SOA 2003 made some radical changes to sexual offences legislation, not least in relation to consent. It gave us a definition of consent at last (in s.74) where it is stated a person consents to sexual activity where s/he “agrees by choice and has the freedom and capacity to make that choice”. It laid out situations where it is presumed that a complainant is not consenting (e.g. where the complainant is unconscious or held captive). The most radical change the SOA 2003 made to the law on consent was that a defendant could no longer rely on his belief in consent; his belief in the complainant’s consent had to be reasonable. All the circumstances have to be considered in determining the reasonableness of the belief, including any steps he took to ascertain consent. The burden of proving the absence of consent, and the absence of a reasonable belief in consent, remains on the prosecution. It is this law that is the basis of the CPS legal guidance.
All this has been the case since 2004. There has been case law since then, some of it very important (for a review of the law up to 2013 see my blog on consent). The statutory sections and some case law is on the CPS website.
The most interesting thing about the DPP’s aide-memoire on consent was in fact not what it says but what it does not say. It provides no information at all on cases involving consent obtained by deception. There used to be an offence of procuring sexual intercourse by false pretences or representations, but no modern version of this was included in the SOA 2003. The criminal law has had to find ways of dealing with deception using the non-consent offences and this has become the trickiest area of consent law. The failure to deal with this is what should have been the most remarkable thing about the aide-memoire.
For a more detailed review of how the SOA 2003’s treatment of consent has worked in practice, including the developments on the legal treatment of deception, and how the law could be improved, see my article in the Journal of Criminal Law. Having set out the law correctly, it is worth returning to the question of guidance:
The DPP can and does issue legal guidance – reams of it – and it can be found on the CPS website, which also explains that the guidance is an aid to prosecutors but is not a substitute for a recognised legal textbook (that’s why we produced the Sexual Offences Handbook). Guidance does not create rights enforceable at law in any legal proceedings. The CPS legal guidance already had a specific section on consent where the relevant statutory sections are laid out together with a bit of case law. Even though the new document was an aide-memoire buried in the Business Information area of the CPS website in a section dealing with violence against women and girls, that does not make it any more of an attempt to change the law. Indeed, the description of the document as an aide-memoire makes it all the clearer that this is a summary of the law with the common sense points which arise as a result of it (and probably also a PR exercise) rather than an attempt to change the law. It is important to note that the guidance is for prosecutors, not for the public but, given the sensitivity of the issues, it is equally important for the public to understand the law and act accordingly.
Access to the law
The reason why some people thought that the DPP was changing the law was that many people do not know what the law is and journalists and members of the public rarely take the opportunity to read the guidance. It perhaps demonstrates how important it is for experienced lawyers to be blogging. The fact that the SOA 2003 has been in force for over 10 years makes it rather depressing that people do not know its key provisions, particularly as public education was a key driver behind the change in the law. It would be easy to criticise the state which churns out new laws at an astonishing rate for failing to keep the public abreast of them. Only now is consent being included in state sex education. The state legislation online website is not up to date. It always contains a disclaimer that there are outstanding changes to the legislation which are not yet reflected in the online published version. If the state-run source for statutory law online cannot even keep up to date, what chance does the average non-lawyer (or indeed lawyer) have? It is often the case that when new laws are brought into force little notice is given and only those who regularly check new statutory instruments know of the changes and recognise the relevance of them.
Law needs to be accessible for members of the public particularly as ignorance of the law remains no defence. For all its problems, the internet means that important information can be made publicly available at the click of a mouse. In the modern age, there is no good reason why changes to statute law are not incorporated into the legislation online website as the changes come into effect. The state’s failure to promulgate law effectively at a time when access to justice is being limited is unforgivable. This is exacerbated by media sensationalism when legal changes are reported (as happened to the DPP’s guidance). In the context of alleged sexual offending, it is all the more important that the law is clearly understood.
It is even more important in this time of criminal law being turned to to deal with all ills, large and small, that the public need to be able to find good, reliable information somewhere. Large media groups can and should be able to get the law right, whether by having legally-trained journalists reporting on the law, by asking those with proper expertise, using our book, or even by subscribing to online legal databases to check the law for themselves. This really matters in the area of sexual offences, because myths around this kind of offending are so deep-seated and pernicious. If journalists were accurate in their reporting it would mean that judges would have to spend less time directing juries to ignore inaccurate stereotypes in relation to both witnesses and suspects. No-one is served by people being told that “date rape suspects will now need to prove that a woman consented” when the truth is that the prosecution must prove that a woman did not consent and the suspect did not take the necessary steps to ascertain she was consenting.
The Daily Mail and Daily Telegraph articles did not grasp what the DPP can and cannot do, putting sensationalism before accuracy. The DPP can and does issue guidance about when it would be in the public interest to prosecute. She cannot, however, change the substantive law; that is a job of Parliament and the appellate courts. It follows that Alison Saunders has no power to change the law on consent and, when one reads the aide-memoire, she clearly was not trying to. She was putting the law in a nutshell and listing common sense points for investigators and prosecutors to consider when doing their jobs.
Of course there are some superb legal journalists who are well-informed and thought-provoking. There are also some excellent legal bloggers and tweeters who provide accurate and helpful information and content. The problem is that they are often speaking to people who are already well-informed enough to be looking at that blog, or following that twitter user. This is a world away from the state’s responsibility to educate the general public and until there is accurate legal reporting, the public will remain ill-informed. A wonderful analogy explaining the basics of consent via the medium of tea (surely nothing better for the English) appeared in a blog recently. It is a significant lesson for the long-established press that this was picked up by the Huffington Post, perhaps a small step by one media operation in the right direction, but it is telling that it did not make it into the older, mainstream media publications.
Catarina Sjölin Knight