‘Consensual sex’ forms for people to sign on drunken nights out to show they agreed to intercourse have ‘deeply worrying’ implications to the way rape cases are investigated, according to a Manchester solicitor.
Celeb lawyer Nick Freeman, also known as Mr Loophole, touted the idea of ‘consensual sex’ forms earlier this week as the ‘only way’ to ensure consensual sex definitely occurred.
However Ruth Peters from Manchester-based Olliers Solicitors believes such a notion switches the burden of proof in a rape case away from the Crown and puts it on the defendant – unlike other criminal cases under UK law.
Ms Peters told MM: “It is for the Crown to prove their case against a defendant beyond all reasonable doubt and it is deeply worrying that defendants are now being increasingly asked to prove the steps they took to secure consent and their belief in the same.
Mr Freeman’s suggestions came as a result of new guidance from the CPS on January 28 on assessing the issue of consent in rape cases, which is considered one of the main issues in such offences.
Director of Public Prosecutions Alison 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.”
In response to such guidance, Mr Freeman criticised Ms Saunders suggestion as it ‘effectively reversed’ the burden of proof by placing it on the defendant rather than the Crown.
He said: “The prosecution having to prove their case so that the court is sure has been the bedrock of our legal system for hundreds of years. It is a seismic shift in the law which in these circumstances is wholly inappropriate.
“Apart from total alcohol abstinence, the only way to ensure consensual sex is to obtain a signature or signatures, when sober, upon a consent form.
“Moreover this must be freely signed, and, ideally witnessed by someone who is also sober, before any sexual act by the willing party or parties.
“Thus, if a complaint is made to the police, this document is crucial evidence in supporting the issue of consent.”
Olliers’ Ms Peters claimed the proposals were ‘untenable’.
She explained that the CPS have prepared a toolkit for both the police and prosecutors at court to establish whether the victim had capacity to consent, freedom to consent and the steps taken by any defendant to obtain consent and their reasonable belief that any victim had consented.
One example she gives is questioning the suspect as to how he knew or believed the complainant was consenting to sex and that s/he continued to consent.
Police are additionally being encouraged to question the suspect as to whether they would recognise or ignore any signs from the complaint that they did not want sexual activity and checking whether consent was given for all the sexual acts engaged in and not just some, for example a victim may have given consent for oral sex but not vaginal sex.
Ms Peters said: “However the concern follows from the guidance appearing to place the burden of proof on the defendant to prove that any sexual activity was consensual.
“It is however for the Crown to prove their case against a defendant beyond all reasonable doubt and it is deeply worrying that defendants are now being increasingly asked to prove the steps they took to secure consent and their belief in the same.
“There is clearly no easy answer as to how to deal with the issue of consent particularly where all participants are intoxicated. The only definite way to be safe is to refrain from sexual activity after having drunk too much alcohol.”
MM have teamed up with Olliers Solicitors to answer YOUR legal queries. From ‘can you drive in high heels?‘ to ‘can I cycle drunk?‘, Olliers have the answer.
Do you have a question for the legal team at Olliers Solicitors?
Their specialist criminal lawyers – including a specialist motor law department – are ready to answer your questions for FREE. All you have to do is email them in to our newsdesk here: newsdesk (at) mancunianmatters (dot) co (dot) uk
You can find more about Olliers Solicitors here.
Image courtesy of Karl Winegardner, with thanks.
