Remaining silent during a rape could be conceived as consent, DPP says

Remaining silent during a rape could be seen as consent, the country’s most senior prosecutor has suggested.

Alison Saunders, the Director of Public Prosecutions, said a suspect in such a case could have a “reasonable belief” that they had been given consent and so may not face prosecution.

Ms Saunders explained that the CPS should act as “a protection” for both sides in the wake of a rape allegation and ensure that suspects are not wrongly put on trial.

Her comments follow the collapse of several rape cases amid wider public concern about the actions of police and prosecutors.

Oliver Mears, 19, an Oxford University student became the latest man accused of rape to have the case against him dropped after two years on bail, following a review of evidence just days before he was due to go on trial.

The Metropolitan Police has ordered a review of all its investigations into alleged rape and serious sexual assault following the collapsed trials of Liam Allan, 22, and Isaac Itiary, 25.

A third case against Samson Makele, 28, was also halted at Snaresbrook Crown Court last Monday after his defence team unearthed key images from his mobile phone which had not previously been made available, law firm Hodge Jones and Allen said.

Ms Saunders explained that​ when a rape allegation is made concerning two people who know each other, prosecutors have a two-stage test, examining the capacity to consent and whether or not the suspect had a reasonable belief in consent.

"So in some of the cases you can see why​, even though the complainant may think they were raped, there was a reasonable belief that they had consented, either through silence or through other actions or whatever,” she told the Evening Standard.

“We are there not just to be able to prosecute cases where there has been an offence, but also not to prosecute cases where there isn’t sufficient evidence.”

She said the judgment in such cases was about “context” and insisted that​ despite recent criticisms, she understood the “devastating” impact rape allegations could have on the lives of innocent suspects.

“We have never done the extreme of if someone says they’ve been raped or just wants to shout rape then that’s enough,” she added.

The contention that silence could amount to consent is likely to cause rancour among campaigners.

Katie Russell, a spokesperson for Rape Crisis England & Wales, said it was common for rape victims to find themselves unable to speak when being attacked.

“Through more than 40 years' experience of providing frontline, specialist support to people whose lives have been impacted by sexual violence, we know it's common for victims and survivors to freeze or flop, finding themselves unable to speak, fight back or even move, and that knowledge is backed up by a large body of independent evidence, of which the Crown Prosecution Service (CPS) is aware,” she said.

“We must not forget that the vast majority of those who experience sexual violence still choose never to report to the police, and last year only 16 per cent of cases that were reported reached court. This does not represent justice.

“The system is currently failing victims and survivors of sexual violence in multiple ways at every stage of the process; it's time for radical overhaul."

She said the law was clear that someone consents to sexual activity when they agree by choice and have the freedom and capacity to make that choice.

Ms Saunders insisted that prosecutors had to tread carefully, aware that there were "high stakes" and that they were dealing with “people’s lives” and did not want to put people wrongly before the courts.

Sarah Green, co-Director, End Violence Against Women Coalition, said the issue of disclosure was “really serious” and that public needed to understand the context of the debate.

She said insinuations that there were a lot of people making up rape allegations were extremely harmful, stressing that the police and the CPS were not pursuing an agenda.

“A person must give consent and be in a fit state to give consent and a person must seek consent,” she said. “The law was always there but it is about the context of each individual case.”

Addressing the furore surrounding the John Worboys case for the first time, Ms Saunders said she empathised with victims alarmed by the prospect of the black cab rapist’s release but defended prosecutors’ handling of his case, saying that it had been “well prosecuted” in a “very thorough prosecution”.

But she admitted that police mistakes during their investigations into Worboys, who was convicted of 19 offences, including one rape and five sexual assaults in 2009, meant there were “missed opportunities” to bring other charges against him at the time.

She suggested there was no possibility of taking him back to court unless new complainants or new evidence emerged.