Addressing consent and associated myths in rape investigations and prosecutions
Preface The purpose of this tool kit is to support police supervisors in considering rape and sexual offences investigations in the context of preparation for presentation at court. The focus is on consent, as reports of rape cases often involve the word of the complainant (C) against that of the suspect (S). Investigators and prosecutors need to consider issues of consent in rape cases when applying the two stages of the Crown Prosecutors’ Full Code Test: (1) The evidential stage; followed by (2) The public interest stage. Charging decisions will be made in line with the Director of Public Prosecutions’ Guidance on Charging. Investigators must also take into account what becomes known of the defence case, which may include significant comments made at the time of arrest, and/or any account provided during interview. In all rape and sexual offences investigations, consideration should be given to seeking early investigative advice and a formal record of both the request and the advice should be made.
Investigators will need to build a case with a clear narrative to help advocates challenge assumptions about consent and the associated victim-blaming myths/stereotypes. The aim is to help them in their development of a case strategy, weaving a case narrative, contrary to that of the defence, which highlights S’s behaviour and motives. This tool kit has been drawn up as part of the National Rape Action Plan to improve the investigation, prosecution and presentation of rape cases and is informed by a number of authorities that include relevant CPS Legal Guidance. Investigators and supervisors may also find it useful to read the report Responding to the Challenge of Rape Myths in Court. A Guide for Prosecutors (2013), by Dr Nina Burrowes, research psychologist specialising in the psychology of rape and sexual offences.
This tool kit is designed to help supervisors ensure that an investigators case is appropriately built in a way that:
Balances the focus of the case on S’s behaviour, motives and reasons, thereby assisting in rebutting any assertion that C consented, or that S had reasonable belief in consent, as well as assessing C’s evidence;
Sets out a case theory which demonstrates how S made choices as to how he/she would commit the offence in a way which he may have hoped would prevent or limit him/her from being caught or punished; and
Addresses the myths and stereotypes that may arise in the case.
Practice guidance on police decisions to take no further action
Joint scrutiny panels
Risk assessments and exit strategies
Rape investigation process map
1. Section 1 of the Sexual Offences Act 2003 (rape)
Section 1 of the SOA 2003 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of another person without that person's consent, if he does not reasonably believe that the other person consents.
Victims of rape are often selected and targeted by offenders because of ease of access and opportunity - current partner, family, friend, someone who is vulnerable through mental ill health, learning or physical disabilities, someone who sells sex, someone who is isolated or in an institution, has poor communication skills, is young, in a current, or was in a past relationship with the suspect, or is compromised through drink/drugs. This list is not exhaustive. Victims may be chosen for grooming because of their vulnerabilities. The offender may hope that these vulnerabilities will limit the belief in C by authority (e.g. police / CPS) and by a court (the jury). Vulnerable victims are targeted by offenders for a whole range of reasons, including the belief by offenders that:
Cs are more likely to succumb to pressure or intimidation on them to ”comply” with S’s sexual advances
In some cases (e.g. younger victims) C may be less likely to have “home support” where the suspected abuse would be noticed or acted on.
C is less likely to report in the first place due to their vulnerabilities
If C does report, she/he is less likely to follow through to giving evidence
C will not be believed by those to whom they report it (the police, CPS) and ultimately the jury
Overall the likelihood of detection and prosecution is low.
Context is all important to the consideration of freedom and capacity to choose. It is necessary to focus on the complainant’s state of mind in the context of all the relevant circumstances. These will include:
Age, maturity and understanding
C’s knowledge and understanding of the position she/he was in and what she/he was being asked to do
Promises by S of a more secure or exciting way of life
Excessive compliments and/or kindness shown by S
Any other evidence of exploitation or grooming so that C may not understand the full significance of what she/he is doing.
4. Rebutting defence tactics
The targeting of a victim, and how it has been carried out, needs to be put before the jury at the outset of the case. S (or his defence) may deploy a narrative that will present the behaviour of C in a negative way. This approach may reflect victim-blaming myths and stereotypes held by the general public and therefore by potential jurors. Such views may be wide ranging - including believing C consented at the time but has since changed his/her mind and is therefore now lying; to blaming C for putting her/himself in a vulnerable situation; to believing that rape must be and is only ever an act or threat of physical injury. When building a case the investigator must therefore gather all available evidence to counter effect and address all potential adverse prejudices. Methods of achieving this might include: (i) highlighting the distinction between consensual sexual relations and rape; (ii) shifting the focus from C to S; (iii) explaining any targeting of C; and/or (iv) explaining the trauma irrespective of the use of physical violence. Notably, some suspects may reframe events, even to themselves, to claim they were spontaneous and consensual and others may claim that C ‘knew the rules’, ‘they were both equal’ (despite any actual inequalities), or they ‘both got carried away’.
Consideration should be given to the language used in providing information about the case, ensuring that it clearly reflects the reported rape, associated abuse and any violence and does not put it across as ‘sexual relations’. Common language associated with consensual sex must be avoided. Language must support the clear message that “it was not sex, it was rape, and consent was not given”.
Section 74 of the Sexual Offences Act 2003 defines “consent” – a person consents to vaginal, anal or oral penetration only if she/he agrees by choice and has the freedom and capacity to make that choice. Investigators must seek to establish what steps, if any, S took to obtain C’s consent. This will assist the Crown, where appropriate, in proving that at the time of the penetration S did not have a reasonable belief that C was consenting.
7. Evidential issues and investigative considerations
A. Capacity to consent
Complainant under the influence of alcohol/drugs or incapacitated through medical condition.
Did S target/exploit C at a time when she/he was most vulnerable? (e.g. when C was drinking/drunk/taking drugs/unwell?)
Did S contribute to C’s lack of capacity by the provision of drugs/alcohol?
Was there a premeditated plan? Or was this an opportunistic attack?
Was C incoherent/staggering/vomiting/asleep/unconscious?
Learning disabilities / Physical disability
Are there any communication difficulties?
Consider use of intermediaries and record considerations
Ensure that a victim needs assessment is completed and recorded
Is there evidence specifically relating to C (SOA 2003, Sections 30 - 34)?
Ensure details are provided regarding the impact of disabilities on how C may present or behave.
Consider the need for expert evidence.
Has C been targeted/exploited or taken advantage of because of the disability?
Asleep or unconscious
Was C asleep or otherwise unconscious at the time of the relevant act
Refer to Section 75 SOA 2003 (see below)
Mental health issues
Explore whether there are any relevant mental health issues (including history of mental ill health, or present mental ill health issues)
Was C, regardless of age, unable to refuse because of or for a reason related to a mental disorder?
Did S know (or could reasonably be expected to know) of the disorder and therefore that C was likely to be unable to refuse?
C is unable to refuse if she/he lacks the capacity to choose to agree to the activity (e.g. lacks sufficient understanding of the nature of the activity), or she/he is unable to communicate such a choice to S
See sections 30-34 SOA 2003 - If the expert evidence supports incapacity through mental disorder the prosecution may rely upon these sections.
B. Freedom to choose
Assess the motives of the S - why he/she was pursuing someone in this condition?
Was S plying C with drugs/alcohol?
Why did S pursue C while she/he was in a vulnerable state?
See S.61 SOA 2003, Administering a Substance with Intent - the intentional administration of any substance in the knowledge that the victim does not consent (to the administration of that substance) and with the intention of overpowering or stupefying the victim in order that any person can engage in sexual activity involving the victim.
Consider the possibility of Drug Facilitated Sexual Assault (DFSA): major sedative-hypnotic effects (loss of inhibitions, mental confusion, impaired judgment, and ultimate loss of consciousness); and/or partial or total amnesia for events that occurred while the victim is under the influence of the drug (Rohypnol, GHB, Scopolamine and also alcohol and MDMA to varying degrees).
Consider why C brought this to the attention of the police? Clearly if s/he has brought the matter to the attention of the authorities s/he must believe that what has happened was wrong and requires criminal action.
Was there previous abuse that suggests coercion or submission?
Have S and C recently separated?
Is there a family relationship between S and C?
Assess the reasons that will impact on C (e.g. fear of effect on children, loss of home, finances, etc.)
Is there evidence of previous calls or incidents reported to the police (or other authorities - remember to explore records of partner agencies including social services, health and education)?
Consider issues to aid bad character application (see below)
Abuse of trust/position
Is/was S a family member?
Is/was S in a position of authority? (e.g. Teacher, religious leader, employer, gang member or gang leader, carer, doctor - any other position of authority)
Explore any unequal status in the relationships between S and C?
Was there any extortion, exploitation, blackmail, pressure, bullying?
Age of C and S
Was C old enough to consent?
Is there a significant age gap between C and S? And if so, consider how this may be relevant.
Was S taking advantage of C?
Deception by the suspect (e.g. identity)
Refer to Section 76 SOA 2003 (see below)
C. Steps taken to obtain consent
Provide a commentary as to the credibility/veracity/ adequacy of the steps taken
What conversation and interactions took place beforehand?
How did C convey she/he wanted to have sex?
Did S check that C was consenting to sex? If so, how? What steps taken?
Did C continue to consent? How was this communicated?
Any information on the state of C - Was she/he tense or frightened? What was the body language? Were there signs of the complainant not consenting to sex? (For example, did C’s behaviour change? Was she/he frozen or confused?)
Location and timing
Was the location and timing advantageous to S?
Did it put C at a disadvantage and/or increase her/his vulnerability?
Did C make choices believing they were adequate to ensure their safety? (e.g. being in friendly company, going home with an acquaintance rather than a stranger)
Note - C might not have foreseen that the friend or acquaintance had identified them as a victim, or that the place they were going had been deliberately chosen location for the assault.
Is there other evidence around the location and timing to support either C’s or S’s version of events (e.g. independent witness or cctv)?
D. Reasonable belief in consent
Assess if the belief was reasonable
How was C behaving when she/he first met S?
What was the state or the behaviour of C during the incident? (e.g. how many drinks did C and S have?)
Was she/he steady when walking?
How did S know she/he was willing?
How does S’s account differ from C’s? And how does S account for the difference?
Is there any other evidence to substantiate S or C’s versions of events?
Did C specify what consent was given for? (e.g. Consent to vaginal, not oral or anal sex; or consent only with a condom)
Consent can be withdrawn at any time during sexual activity and each time activity occurs.
Consider whether any of the 6 rebuttable presumptions to consent apply? If so, examine in detail in interview and ensure these are highlighted in the MG5 case summary and MG3 report to crown prosecutors.
Section 75 Sexual Offences Act 2003 (rebuttable presumptions) applies where:
S, or any other person, has used violence towards C;
S, or any other person, has caused C to fear violence will be used against someone else;
C was asleep or unconscious at the time of penetration; and
Due to a physical disability C was unable to communicate whether she/he consented;
Any person gave C (or caused her/him to take), without her/his consent, a substance capable of causing stupefaction or overpowering at the time of penetration.
Deception by the suspect
Section 76 SOA 2003 (conclusive presumptions) applies where:
S intentionally deceived C as to nature or purpose of the act
S intentionally induced C to consent to penetration by impersonating a person known personally to C
Note: Deceptions must be directed to the nature and purpose of the relevant act i.e. the penetration itself. Therefore, this will have limited use save for example where penetration was achieved under the pretence of it being a medical procedure or a suspect pretends to be the complainant’s partner.
E. Preparatory acts
Behaviour of S, intended to overpower, groom, control, or otherwise increase the vulnerability of C
The provision of gifts including material gifts, finance and resources (e.g. accommodation, food, drink, holidays) may constitute part of a wider motive to overpower and control C, putting her/him in more vulnerable and potentially less credible position.
Consider also the administration of substances with intent to stupefy (S.61 SOA, above).
F. Age of the suspect
Youth / juvenile suspects
It is important to adopt some caution when considering questioning around the mentality/thinking of a juvenile/youth suspect; their level of maturity may vary substantially from that of an adult suspect.
G. Psychological issues
If no expert evidence
May be admissible if not generic. Expert evidence can be called in chief or rebuttal.
If expert evidence is not possible, consider exploring the reasons for behaviour of C post incident (e.g. problems with recollection, etc)
H. Behavioural history of the suspect (bad character)
Explore previous reports on police intelligence systems.
Consider whether there is any evidence (e.g. witnesses or cctv) to support a pattern of behaviour by S.
Third party (partner) records
Explore social services, education and health records (e.g. a teacher at school may have had previous concerns regarding the controlling nature of S at events such as parents evening)
Police National Computer (PNC) printouts alone are not sufficient - examine previous case papers and interviews and explore S’s propensity to behave in a similar way to that in the present case.
Bad character application
See Criminal Justice Act 2003, Section 103
Complete MG16, with comprehensive supporting material
J. Complainant and common reactions
C may have been deliberately targeted and isolated based upon behaviour/clothing. S may have done this to exploit the common myths and stereotypes that dressing in a particular way encourages sexual attacks. Note however that there are likely to have been other people dressed or behaving this way without being attacked.
Types of resistance, self-protection and defence
Consider whether C resisted/defended her/himself? Common human defence mechanisms to attacks include being passive, active, freezing, fight, flight, or through negotiation to minimise the level of harm caused.
Had S weighed up the potential for resistance / reporting and credibility?
Consider C’s reaction to what happened.
People react differently to trauma - they can be frozen by fear or submit - both of which negates injury.
Some victims of sexual offences will suppress the memory of an attack or aspects of it; this may be a conscious suppression as a coping strategy or a subconscious reaction (such as the suppression that is common in disorders such as Post Traumatic Stress Disorder).
Ensure that a detailed description of C’s feelings is recorded.
Late/delayed reporting is very common in sexual offences cases (those cases where a survivor reports immediately after the attack are the exception rather than the norm). There are a variety of reasons why C may have delayed in reporting such as: protection of others, mature reflection, inability to cope with the aftermath of the report, investigation or the thought of potential trial, fear of not being believed, distress, humiliation, shame, guilt, fear of repercussions.
Late/delayed reporting may also have been linked to a fear of S, cultural reasons, abuse within the family, abuse at work, the suspect was in a position of authority or any other reason.
Lies and inconsistencies
There may be information available to help assess, based on the evidence, why there may be inconsistencies (which may seem like lies, but have reasonable explanation) - shame, fear of repercussions, distress, quashing the trauma of the incident, trying to hide what happened prior to the rape.
Note that re-living an event may cause stress, panic and emotion which may impact on consistency.
Payment for sex
S may have deliberately chosen C because of a vulnerability that S believes may undermine C’s credibility if C were to report. For example, S may have targeted C because of her/his involvement in prostitution or criminal conduct and this may be because S thinks that C will be less likely to be believed by others because of this.
Non-recent cases of rape, including adult victims of historic child abuse
In cases of adult victims of historic child abuse, the complainant may regress and behave or speak as a child - appropriate explanation should be provided to support this behaviour.
Ensure that any delays in reporting are fully explained.
Consider the possibility that S (or his defence team) may assert that the report was for financial gain - ensure that any available evidence is gathered to rebut such an assertion.
Depending on the date the offence was committed, consider the application of the SOA 1956.
8. Practice guidance on police decisions to take no further action (NFA)
A police decision to take no further action (NFA) in a rape or sexual offences investigation should be authorised by an officer who should be at least the rank of substantive inspector.
A police decision to take no further action must be based only on the evidential test and must not rely upon public interest considerations. The police decision to NFA only applies to any case that clearly cannot and will not be able to meet the appropriate evidential standard (Full Code or Threshold Test). A police decision to NFA will therefore only take place where: all reasonable lines of enquiry have been exhausted; there is no prospect of gathering any further evidence or conducting further enquiries which may strengthen the case; and the evidence is insufficient to eventually meet either stages of the Test.
A decision to take no further action should be based on facts (evidence) and not opinion.
The credibility of complainants and/or witnesses must not form the basis of a police decision to take no further action.
Any decision to take no further action requires that a risk assessment is documented on the crime report in relation to both the suspect and the victim. This risk assessment should be accompanied by an exit strategy including signposting and referrals to other specialist third sector support agencies e.g. Independent Sexual Violence Advisors (ISVAs).
Where a decision is made, then both the fact that that decision has been made and the rationale behind the decision must be clearly communicated to C as soon as is reasonably practicable after the time when the decision was made, and in any case within 24 hours.
Practitioners involved in communicating decisions to take no further action should have received sexual offences investigation training (SOIT) and should endeavour to communicate in a sensitive and considerate manner. The use of generic closing letters should be avoided.
Every effort should be made to actively avoid misconceptions that false allegations are commonplace. If a report cannot be proven beyond all reasonable doubt to be false, then it cannot be deemed as false.
C must be informed of: (a) her/his right to appeal/challenge a decision; and (b) her/his right to make a complaint, including the process for doing so. Any views/comments that C has expressed must also be recorded.
9. Joint scrutiny panels
In addition to the guidance provided above in respect of police decisions to take no further action, it is widely regarded as best practice for forces to establish joint-agency scrutiny panels (including representation from the CPS, police and third sector) to quality assure police decisions to take no further action in rape and sexual offences cases. It is accepted that due to the level of volume and demand encountered in some force areas, it will be acceptable for this quality assurance to be achieved through a dip sampling process.
10. Risk assessments and exit strategies
Risk assessments must be completed in respect of both the complainant and the suspect at the outset of the investigation and then continually monitored and updated throughout the investigation. At the conclusion of the investigation it should be clear from the closing report that a review of the risk assessment has been completed and an appropriate exit strategy has been documented, explaining: (a) How C’s needs/vulnerabilities will be addressed following the conclusion of the investigation? And (b) How S’s behaviour will be continually managed/monitored following the conclusion of the investigation?
Victim risk assessment
Suspect risk assessment
A risk assessment in respect of C, her/his vulnerabilities;
Measures taken throughout the investigation to meet the C’s needs;
Measures in place to ensure ongoing support for C following the conclusion of the investigation, including referrals to partner agencies including specialist third sector support agencies e.g. Independent Sexual Violence Advisors (ISVAs).
A risk assessment in respect of the S;
Offender profiling, including whether or not a submission has been made to the National Crime Agency Serious Crime Analysis Section (SCAS) and the rationale for any decision not to make a submission;
Measures in place to ensure that the S’s behaviour is appropriately managed/monitored, including consideration as to whether the suspect is a ‘potentially dangerous person’ and should be managed under VISOR or whether a court order (e.g. Sexual Harm Prevention Order, or Sexual Risk Order) should be applied for in respect of S.
The complainant and suspect risk assessments encompassing the exit strategy will support the objectives of reducing the likelihood of repeat victimisation and reoffending.
It is in the interest of public confidence that we ensure that all decisions and rationale are clearly and comprehensively documented in a location that is readily accessible for auditing purposes. This should generally be in electronic format on the force’s local crime recording system. Closing reports should be tailored to the individual investigation and therefore there may be a degree of variance from one case to another. However, in all cases the following points must be covered:
If no further action then the rationale of the police decision-maker or the CPS lawyer must be endorsed on the crime recording system in the closing report.
(b) Suspect risk assessment
Consider the behavioural profile of the suspect and the level of threat/harm presented by the suspect in the community.
Consider the appropriateness of tasking and deploying proactive resources to target the suspect where conventional investigation techniques have been exhausted and/or frustrated.
Consider the duty of authorities to safeguarding and record such action (particularly in cases involving children).
Consider an application for a Sexual Harm Prevention Order (SHPO) or a Sexual Risk Order (SRO). See Part 2 of the Sexual Offences Act 2003 (sections 103A-103K and 122A-122K, respectively).
Sexual Harm Prevention Order (SHPO) replaces the sexual offences prevention order and foreign travel order and may be made in relation to a person who has been convicted of or cautioned for a sexual or violent offence (including equivalent offences committed overseas) and who poses a risk of sexual harm to the public. The SHPO may be made by a court on conviction for a sexual or violent offence, or by the magistrates’ court on application by the chief officer of police or the director general of the National Crime Agency. A court may impose an order for the purposes of protecting the public in the UK and/or children or vulnerable adults abroad from sexual harm. See the attached PDF process maps.
The Sexual Risk Order (SRO) replaces the risk of sexual harm order and may be made in relation to a person without a conviction for a sexual or violent offence (or any offence), but who poses a risk of sexual harm. The SRO may be made by the magistrates’ court on application, by the chief officer of police or Director General of the National Crime Agency, where an individual has done an act of a sexual nature and as a result of which, there is reasonable cause to believe that it is necessary for a sexual risk order to be made. “Acts of a sexual nature” are not defined in legislation, and therefore will depend to a significant degree on the individual circumstances of the behaviour and its context. See the attached PDF process map.
(c) Victim risk assessment
Considerations around the vulnerabilities of the victim and the likelihood of her/him becoming a repeat victim.
(d) Exit strategy
Steps taken to address: (a) risk around the suspect; and (b) vulnerabilities of the victim including signposting and referrals to other agencies (such as specialist third sector support agencies) offering continuing and enhanced support.
(e) Victim views, comments and feedback
Must be recorded on the crime report to assist with measuring victim satisfaction/confidence and shaping future learning. The conclusion of the investigation and the fact that it has been communicated to C, along with the rationale for any decisions made must be documented in the closing report. As discussed above, C must be informed of: (a) her/his right to appeal/challenge a decision; and (b) her/his right to make a complaint, including the process for doing so. Any views/comments that C has expressed must also be recorded.
Rape recorded upon report 2. Rape investigation process map