Yesterday, changes to the way that rape cases are to be handled were announced, with the old mantra of ‘no means no’ slowly being recognised for the archaic view on consent that it is.
Under the latest changes, men accused of rape must prove that they had reasonable cause to believe that their partner consented; a U-turn on the former requirement for the victim of rape to prove that they didn’t reasonably and freely consent. It’s a move that has been heralded by the press as a toughening of rape laws.
Because proving someone wanted to have sex with you is oh so unreasonable.
However, these new rules aren’t quite as new as one may think, but more a case of reaffirming the Sexual Offences Act (2003) which states that
“Person A is guilty of an offence if:
-They acted deliberately
– (B) does not consent to the act
-(A) does not reasonably believe that (B) consented to the act.”
Whilst all along, these guidelines should have demonstrated the need for the onus to be on the defendant to prove that they had consent, the focus has been on having the victim prove their lack of consent throughout the case. This shift in focus is one that is long overdue, and one that has the potential to change the way we discuss consent and sexual relationships with our children.
The need for the conversation to move away from ‘no means no’ is one that recognises that consent isn’t something that is assumed unless otherwise stated, but something that is absent unless explicitly and freely given. As Alison Saunders, Director of Public Prosecutions said, cited in yesterday’s The Telegraph,
“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?”
This isn’t asking men to pull out a contract before intercourse begins, but instead asking them to take their partner’s needs into consideration. Is their partner an active participant? Is their partner freely able to consent, without threat or pressure to partake in sexual activity? Is their partner fully aware of their actions, or is their judgement or ability to consent impaired by alcohol, drugs or any other possible impairment? It requires men to prove they had reasonable belief that their partner consented.
By no means does this mean that the changes in how rape cases are to be handled means all rape cases will be handled perfectly. But we expect this progress to mean a change in how consent is handled amongst all parties.
No more ‘It’s your word against his’. No more ‘But did you say no’. This shift is long overdue, and it’s time that the media recognised that too.
 CPS Guidelines, ‘Rape and Sexual Offences: Chapter Three’, Crown Prosecution Service, 2003, http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/
 Rayner, G and Gardner, B., ‘Men must prove a woman said ‘yes’ under tough new rape laws’, The Guardian, 28.01.2015, http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html