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Last Updated: Thursday, 24 November 2005, 15:37 GMT
The thorny question of consent
By Jon Silverman
Legal affairs analyst

Jon Silverman looks at the implications of a case which collapsed after a woman who alleged she was raped told a court she had been too drunk to remember whether she had consented to sex.

The failure of one case at a crown court is not going to have a significant impact on the future course of rape prosecutions.

But it does underline the difficulties in this area of the law around the crucial issue of consent.

A policewoman counsels a rape victim
In law an unconscious person cannot give consent

The Sex Offences Act 2003 has made it considerably harder for a defendant to argue that he reasonably believed that a woman had consented to sex.

In cases where a woman can satisfy a jury that she was asleep or unconscious, the onus has shifted towards the man who has to prove otherwise.

However, that still leaves a considerable proportion of trials where alcohol is a factor and where the jury is offered two conflicting versions of events without any third party corroboration.


Some, like Ruth Hall, of Women Against Rape, argue that the judge at Swansea Crown Court should have allowed the jury to reach a verdict.

"We know that in certain circumstances, where drink is involved, a man will often take advantage of a woman," she said.

But judges are obliged to intervene where a prosecution has failed to reach a certain evidential threshold, to protect the right to a fair trial of the defendant.

Some judges have expressed concern about the number of evidentially weak cases brought to court

The Director of Public Prosecutions will want to know whether Mr Justice Roderick Evans made his ruling correctly.

Given that most rape trials come down to one person's word against another, the government is exploring ways of reinforcing the evidence given by a complainant.

A piece of CPS-sponsored research is looking at the use of expert witnesses to place in context behaviour or dress which may lead juries to disbelieve the word of a woman who has been raped.

Such expert testimony is admissible in other common law jurisdictions, including Canada, Australia and the US.

Improving the forensic quality of DNA evidence is also on the agenda.

False complaints

Fewer than 6% of rape allegations lead to a conviction. And in contested trials, the figure is even lower.

This situation goes to prove each rape case has to be taken on its individual merits
Dave Wilson, Chester

Some see the way forward as a greater willingness on the part of the CPS to prosecute rape allegations.

But some judges have expressed concern about the number of evidentially weak cases brought to court.

And a number where women have made false complaints, leading to convictions for perverting the course of justice.

Barristers explain why the case was dropped

Rape case collapses over consent
24 Nov 05 |  Mid Wales

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