Our response to the government
The government has replied, ‘We have no plans to amend the law on consent,’ claiming they ‘have taken a robust and zero tolerance approach to rape and sexual assault.’ This is a disappointing reply that fails to align with the reality survivors experience. How can the government believe they have taken an adequate approach when rape conviction rates sit at less than 2%?
Their reply continues with information we neither sought to address nor believe provided sound reasons for opting not to protect survivors.
The government’s reply centres strongly on the custodial sentence of convicted offenders being longer. This isn’t an issue we brought up, and we’re unsure why they felt that perpetrators receiving longer sentences addressed the issue of low conviction rates. However, since they brought this to our attention, we would like to note that the government recently announced early releases wherein sex abuse offenders, like Stephen Bear, are being released early. Lengthy sentences do not address the issues of a lack of conviction, and we fear that the lengthy sentences they assure us of are not as solid as they imply, given Justice Secretary Alex Chalk’s early release decisions.
The reply shares how the Sexual Offences Act 2003 had a consultation and modernised the law (we know- at the time, it was groundbreaking!). But it’s been twenty years, and we’ve seen no real progress since. The law should not be static but should be updated with new knowledge and expertise. We’ve unfortunately allowed our law to stagnate, leaving survivors to face the harms of the past while the rest of the world moves into the future.
They say the Act gives the strongest protections and enables the police to do their job. The CPS states the most difficult part of securing a conviction is proving a lack of consent. Survivors consistently say they are let down by the courts. There is a disconnect between what the government believes and the reality of the issue.
Their reply further tries to explain that the unspecific “free agreement” description in the current law is indeed sufficient, neglecting to recognise that the issue of implied consent remains and failing to understand that affirmative consent is not a question of solely verbal agreement but the establishment that consent was sought and affirmed (either through verbal agreement or physical signals such as nodding yes or signing).
To reiterate: Affirmative consent is an active, voluntary, and mutual decision to engage in sexual activity. The concept of affirmative consent emphasises the need for clear and enthusiastic communication of willingness to engage in sexual activity rather than simply the absence of a “no.” Affirmative consent has recently been enshrined in law in other nations, and we believe it should be adopted in the United Kingdom.
Yes, the law is consent-based. No, it’s not affirmative consent, and it accepts implied consent. Furthermore, there is no definition of consent or rape in the family court.
They then detail the reasonable belief clause.
Affirmative consent would remove the complications of reasonable belief because there would be clear and simple: Did they say yes?
As stated in Berkeley’s research:
“The current model where the perpetrator should determine whether he “reasonably believed” that consent was given based on “all relevant circumstances”, including the steps taken by him to ascertain the same is insufficient. These abstract, imprecise terms and factors focus on whether the victim “implied” any resistance or consent rather than engaging in voluntary approval. Furthermore, the need to investigate “relevant circumstances” gives the jury wide discretion to look into the complainant’s behavior, the relationship between parties, gender roles, bias, prejudices, norms, and other wider social attitudes in a judicial test.”
“There is an objective and subjective element to this test:
1. The perpetrator’s ability to evaluate consent – Subjective element
2. The perpetrator’s reasonable belief to such consent (Jury decides this) — Objective element’ The common law system often leaves the issues of consent and capacity for the jury to determine in cases of alleged rape. They would have to approach the evidence relating to “choice”, and the “freedom” to make any particular choice must be approached in broad common sense.
In the case of R v Olugboja, it was held that the jury is to decide cases of consent by “applying their combined good sense, experience and knowledge of human nature and modern behavior to all the relevant facts of that case.”
The perpetrator can rely upon a mistaken belief as long as it is deemed reasonable in all circumstances – and those circumstances presumably include the complainant’s conduct.”
The MOJ concludes, noting, “The law in this area is long established and well understood by the courts, police, practitioners and the public. We therefore have no plans to amend the definition of “consent” as suggested by this e-petition”
Having a law for twenty years does not mean we should remain complacent. Unfortunately, this reply does not reflect reality, given the low conviction rates and public acknowledgements that the law is not serving to protect and support survivors.
We won’t stop pushing for change and hope the government will re-evaluate their decision not to protect and support victims.
