The UK’s crime rate in 2019/20 was about 97 per thousand people. That figure includes more than 179,000 sexual offences in the UK that were recorded in the same year. There is a list of crimes that are categorised as sexual offences under UK law. These include – but are not limited to – rape, child sexual offences, prostitution and family relationships (including, what is commonly known as, incest). It is important you understand the rules surrounding sexual offences and what protection you might have under the Sexual Offences Act 2003 – the legislation that governs sexual offences to ensure everyone can live safely and freely.
As the topic of sexual offences is so broad, we will explore the specific law that regulates rape. There is a big difference between consensual sex and rape. A rape victim may be either a woman or a man, while the perpetrator can only be a man.
We will discuss what ‘consent’ means and the test that must be satisfied in order to prosecute a rape allegation. Sometimes, the rape allegations are false or can be held false. We will therefore discuss how this situation might come about. The article will then touch upon whether rape can occur between spouses, before exploring why rape convictions are falling.
The topic of rape can be very sensitive. We have therefore provided you with some contact details of helplines that assist victims of rape. Remember to stop reading if you feel uncomfortable at any point in the duration of this article.
The meaning of consent
It is consent that is often disputed, inside and outside court. If you consent to vaginal, anal or oral penetration, it means you agreed by choice to the penetration and you had the freedom and capacity to make that choice. Let’s break this down and take it in turn.
What does it mean to ‘agree by choice’?
If you were forced to accept penetration, that simply means you did not give consent by choice. You were forced to give consent: you could have been, for example, pressurised or threatened in some way. If you said or indicated ‘no’ at any point, consent did not take place. You can also withdraw your consent at any time – in other words, you have the right to say ‘no’ even after you have willingly said ‘yes’.
What does it mean to have ‘freedom and capacity’ to make a choice?
You might not have the freedom to make a choice if, for example, the person committing the act was in a position of power or control – such as an employer, teacher, doctor or your partner. Your freedom might also have been affected if you were being domestically abused and had no option but to engage in sexual activity. Or you might be significantly younger than the perpetrator so might have felt under pressure to say ‘yes’. These are just some of the situations that might affect your freedom to consent.
Whether you had the capacity to consent depends on your mental state at the time. It can be established that you were not able to consent due to a mental health condition. Or you might be under the influence of drink or drugs. If you consent under the influence of alcohol or drugs, this does not automatically mean you had the capacity to consent. It is very possible that you might have been heavily intoxicated which might have affected your ability to think properly. However, it is also possible that you might still have been capable of deciding to have sexual intercourse despite being intoxicated. Each case will therefore need to be examined on its own specific facts.
Rape can also occur if the victim was unconscious or asleep, as that would affect their capacity. In all those situations (and more), you would be able to argue that you did not have the capacity to consent.
What if I didn’t say anything at all?
It has been said again and again that silence does not amount to consent. You might be unable to say something due to fear, confusion and/or shock. This does not mean you agreed to engage in sexual activity, so the act would still be an act of rape.
Just because you also did not fight back does not mean you consented to the sexual activity. It is very possible that you were scared at the time, so retaliating would perhaps have been the last thing on your mind.
The Crown Prosecution Service (CPS) is responsible to prove, beyond a reasonable doubt, that you did not consent and/or that you did not have the freedom or capacity to consent to the sexual activity. This is the evidential test. It then must be in the public interest to convict a person of rape. ‘Public interest’ simply means that the case must be for the public good, not just in the private interest of the victim. Only once these two stages are met, rape can be proved.
If you are under 13 years of age and were raped, the CPS will not need to prove that you did not consent. The act automatically constitutes rape. The same applies if you are under 18 and have been involved in sexual activity with someone in a position of trust (eg. teacher or doctor) or with family members above 18 (eg parent or sibling).
In summary, if it is found by the court that you did not consent (ie you did not agree by choice nor did you have the freedom or capacity to make a choice), this would amount to an offence of rape. The offence of rape carries a maximum penalty of life imprisonment.
What happens if the allegations are false?
The law regulating rape is designed to protect victims against this violent crime. If allegations are false, this can have a negative impact on the person falsely accused. The CPS may therefore prosecute anyone who has made a false allegation, as long as there is sufficient evidence and it is in the public interest to do so.
If the CPS stops the case or does not put any charges forward, this simply means that there was not enough evidence to meet the evidential test. It does not mean that the allegation made is false. Similarly, if the jury decides a not-guilty verdict, this does not mean that the victim made a false allegation. It simply means that the jury was not fully satisfied, based on the evidence provided, that the offence of rape occurred.
Did you know that rape can occur between spouses and partners?
Many people take non-consensual sex less seriously when the people involved were spouses or partners. However, the offence of rape can indeed occur between such people. The year 2019-20 saw that 16% of rape prosecutions were in fact cases of domestic abuse. Entering into a relationship or partnership does not mean sex will always be consensual. It is quite possible that victims are pressurised in a relationship environment and will unwillingly give their ‘yes’ to the other. In fact, the vast majority of rape cases involve people who know each other, as opposed to those who are strangers.
Are rape convictions falling?
In October 2020, the Guardian reported that rape convictions almost halved during the coronavirus pandemic. What this means is that although rape and domestic abuse cases were increasingly being sent to the CPS, they were not progressing. Even though the cases are not officially closed, it is likely that they will not go any further if they do not hear from the police within three months. This is mainly because of the backlog of rape matters: there are far too many cases, yet lots of administrative issues and a lack of resources that prevent the cases from moving forward. In fact, the Guardian reported that less than 2% of traumatic crimes are being charged (which means the statistics are even less for rape cases). The CPS has promised that rape cases will be of high priority during the lockdown, but we have yet to see this in the figures.
It is never alright to be touched without your consent, regardless of your gender. If you are, you should try to make this known to someone you trust. If your concern is growing or if you are suffering even more as a result of lockdown, you should seek help as soon as you safely can. If you’re suffering from sexual abuse and find yourself in an emergency, call 999 straight away.
Regardless of when, where and how it happened, there are several services and helplines for victims of rape. These are normally confidential, free and available to everybody. If you know somebody who might need some help, we’ve listed a few useful contacts below:
- Victim Support – offering free and confidential services for anyone who has been raped or sexually assaulted, now or in the past. Visit them at www.victimsupport.org.uk or call them on 0845 30 30 900
- Rape Crisis – offering support and counselling for those affected by rape and/or sexual abuse. Visit them at https://rapecrisis.org.uk/get-help/
- Rape and Sexual Abuse Support Centre (RASASC) – national helpline for survivors of rape and childhood sexual abuse. Visit them at https://www.rasasc.org/get-support/helpline/ or call them on 01483 546400.