The “What is Consent?” toolkit announced by the Crown Prosecution Service this week is a welcome but long overdue measure. It is also accelerating a vital social debate about what we understand by consent and how it needs to be proven in court.
Since I started my role as the shadow minister for preventing violence against women and girls, the issues around the understanding of sexual consent and the lack of clarity in the criminal justice system has emerged as one of the issues most often raised with me. And it is one we need to urgently grapple with if we are serious, not only about investigating and prosecuting rape and other sexual offences, but stopping them altogether.
The new CPS guidance goes beyond a “no means no” definition of consent, to identify situations in which the victim may not have been able to give consent.
It’s a necessary start in turning around a culture where, all too often, a victim of rape is not believed and is left having to prove they did not give consent in what can be an incredibly traumatic experience in a court of law.
Research by the Children’s Commissioner in 2013 found that, despite being able to define “sexual consent”, were still all too ready to blame victims when they were presented with real life scenarios. If a girl goes round to a boy’s house alone, she can be seen to be leading him on. If she sends provocative texts, she is sending out the wrong message. If she has had sex with him once, she tacitly agrees to consent in the future.
For many, young women are held responsible for “getting themselves into situations” and are expected to take a lead in physically or verbally demonstrating refusal. We also know that almost one in three 16-18 year old girls has experienced “groping” or other unwanted sexual touching at school, and one in ten women in the UK has experienced non-consensual sex since the age of 13.
But a shift in culture is possible, with real leadership from the government and with schools, universities and influential organisations like the Football Association playing their part.
The experience in the United States is starting to generate useful insights, where the “no means no” slogan is increasingly being replaced by the affirmative consent campaign of “yes means yes”. The states of California, followed by New Hampshire and New Jersey have introduced bills to define consent more explicitly. These affirmative definitions, including the caveat that there is no consent under the influence, are spreading rapidly through the country and on over 800 university campuses. Campaigners are starting to say that a shift in culture in America is demonstrable, with young boys and girls being clearer that “if she’s really drunk, she can’t give consent”.
In the UK, despite measures by universities to conduct consent workshops, there is less clarity and consistency of view as to what exactly consent is. And consent when under the influence is perceived as a blurred line which only reinforces the culture of victim blaming.
There have been some extremely harrowing case studies. In one case, I was told the story of a police officer recently speaking to a young victim who had alleged a rape by someone over 30 years her senior. The officer ended up giving her a rape alarm “in case it happened again” and that “she should look after herself better” after deciding the case wouldn’t succeed following her answers to his questions of “Were you drunk? Did you scream? Do you think he understood that you didn’t want to? What were you wearing?”
In the last year, while there has been a substantial rise in reported rape, by 4,000 cases, the number of arrests has fallen by nearly 1000. Under this government, despite the number of reported offences going up, the proportion of prosecutions for rape are at their lowest level ever.
HMIC has talked about a widespread “culture of disbelief” in police forces that Theresa May has done little to address. And feedback from services working with victims suggests cuts to frontline police forces and inadequate awareness on issues of sexual violence and consent are contributing fewer rapists being brought to justice.
So while new guidance for the police and CPS is essential, there is much more that needs to be done. Education remains key. It is inexplicable that the Tories have repeatedly voted against introducing compulsory SRE in schools to teach young people zero tolerance of violence in relationships and the importance of sexual consent. This situation cannot continue, and compulsory PSHE was even advocated in the recent Home Affairs Select Committee Report on FGM.
We need to take greater responsibility as a nation for the world in which young people are now growing up, learn from what has worked abroad, and consider moves to bring about a shift in public attitudes towards positive consent, particularly amongst young people. This is why it is so important we back campaigns like “yes means yes” which educate both young men and women about the importance of sexual consent and the consequences of getting it wrong.
Seema Malhotra is Labour MP for Feltham and Heston and shadow minister for preventing violence against women and girls
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