“Yes? Do You Have Full Capacity and Freedom To Say So?”

Rape is an especially horrid and heinous crime and something must be done to curtail the number of rapes occurring throughout the globe. The UN estimates that, globally, “one in five women will be a victim of a rape or an attempted rape in their lifetime.” Specifically, in the United Kingdom, the most recent data on sexual assaults showed that 15,670 women reported being the victim of a rape, and that of the 2,910 cases that got to court, only 1,070 of those accused were convicted. While the problem has no easy fix, the United Kingdom has taken an interesting approach in an attempt to make the prosecution of alleged date rape suspects easier.

The Director of Public Prosecutions, Alison Saunders, has stated that it is time for law enforcement to move beyond the concept of “no means no” for situations where a woman may be unable to consent to sex. Ms. Saunders goes further, opining that a greater onus must be placed on the suspected attacker, who under her new guidance must be able to demonstrate how the accuser consented “with full capacity and freedom to do so.” A focus of the new guidance is to curtail sexual assaults arising from attacks where the complainant is intoxicated from drugs or alcohol. The end goal of the new guidance is to create an atmosphere where more rapists face punishment for their actions, creating a deterrent against future crimes.

While this new guidance from Ms. Saunders is undoubtedly made with the best intentions, it forces the accused to prove his or her own innocence. In other words, the new guidance forces the accused into a situation where he or she is presumed guilty until proven innocent. One could argue that the guidance creates a dangerous precedent, flying in the face of the long-standing presumption of innocence legal tradition. In the U.K., the presumption of innocence traces its roots back to the Magna Carta. The presumption of innocence stipulates that the accuser must prove that the accused committed the crime, rather than the accused being forced to prove his or her own innocence. In this sense, the guidance threatens to establish a dangerous precedent by discounting the presumption of innocence tradition.

In addition to the legal implications of the new guidance, it has faced criticism for criminalizing innocent men and infantilizing women. Situations may arise where the accused was also not in a state to remember the events of the night before, and, what happens then? The accused is seemingly facing sure conviction under the new guidelines. The new guidance would likely place more guilty rapists in prison, but how many questionably-guilty accused will have to bear the cross for this uptick in convictions? Only the future implementation of the guidance will be able to give us a definitive answer.

The global rape epidemic is real and something must be done to lower the number of crimes committed as well as lower the number of unsolved crimes. Is the new guidance in the U.K. the answer to the problem? Only time and implementation will tell, but for the time being, it threatens to set a dangerous precedent, a precedent that has the potential to make a mockery of one of the world’s longest standing legal traditions.

Ryan Mentzer is a 3L and a Student Work Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


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