New advice for prosecutors has been published by the Crown Prosecution Service, aimed at improving how rape cases are handled. It does not in any way change the law on rape, which says that prosecutors have to prove that the alleged victim (of either gender) didn't consent to sex. Someone accused of rape doesn't have to "prove" anything—despite today's headline in the Telegraph.
This is because in English law, it's generally for the prosecution to show that a defendant is guilty for them to be convicted of a criminal offence. This is referred to as the 'burden of proof'.
That a man intentionally penetrated the vagina, anus or mouth of another person with his penis
The other person did not consent to the penetration, and
The man did not reasonably believe that the other person consents.
Consent means that a person "agrees by choice, and has the freedom and capacity to make that choice".
The Crown Prosecution Service's existing Legal Guidance says that it's important for the police to ask during their investigations about the steps the defendant took to establish that consent existed. But this doesn't mean that if he didn't take active steps he is guilty of rape. It's to help gather evidence so that the prosecution can try to show lack of consent, and lack of reasonable belief that there was consent.
The 'toolkits' for police and prosecutors, announced yesterday, don't change the law or the Legal Guidance. But the advice about consent goes further in spelling out the importance of finding evidence about both the fact and the perception of consent. Better evidence would make it more likely that guilty people are convicted—but the dynamics of the trial don't change.
Such guidelines might also be aimed at changing behaviour among the public at large, by reiterating that men should seek out consent in sexual encounters. The Director of Public Prosecutions points out that "many rape victims freeze rather than fight as a protective and coping mechanism", so absence of a firm "No" doesn't mean consent.
That message does not change the legal position, though.
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