Stay silent during rape and attackers may assume consent, warns DPP

Rape victims have been warned by the director of public prosecutions that if they stayed silent during the assault their attackers may have assumed consent was given and therefore could escape being charged.

Alison Saunders’ comments come in the wake of the collapse of a series of rape prosecutions. Her implication that silence or apparent acquiescence can amount to consent is likely to prove controversial among those who monitor sexual assaults.

In an interview with the Evening Standard newspaper, Saunders said that the Crown Prosecution Service never assumed that “if someone says they’ve been raped or just wants to shout rape then that’s enough” to prove a case.

“We look at two stages,” she said. “The capacity to consent. Also, it’s the second limb which prosecutors apply: did the suspect have 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.

“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 … There are high stakes here and I understand entirely if I think about whether that happened to me or anybody I knew, it would be devastating. We want to get it right. Prosecutors feel this, they know they are dealing with people’s lives.”

Saunders’ comments appear to be a response partially to recent allegations that the CPS has been too eager charge male suspects in rape investigations.

Her statement, however, follows the collapse of at least four recent rape prosecutions after it emerged that police had failed to find or disclose crucial evidence from mobile phones which cast doubt on the complainant’s version of events.

In the case of Samson Makele, the CPS offered no evidence when it emerged that images from the defendant’s phone of him in bed cuddling his alleged victim had not been disclosed to his defence lawyers.

Such cases raise the somewhat different issue of whether the police and CPS have sufficient resources to examine the vast quantities of data now associated with many sexual offences cases.

The Metropolitan police is already conducting an urgent review of similar problems after another rape case was halted in Croydon in December under similar circumstances when phone messages between the man and woman cast doubt on the prosecution’s version of events.