Posted on 24th October 2014

Rape, as everyone knows, is having penetrative sexual activity with someone without that person’s consent and the defendant not reasonably believing that that person is consenting.

Consent has become a hot topic in light of numerous cases involving women being drunk, the issue being whether they drunkenly consented, or were too drunk to give consent.

Ched Evans is considering appealing his case on the basis that whilst he had intercourse with the complainant she was not so drunk that she could not give informed consent – the subsequent media storm demonstrates how sensitive an area this is. A Judge retiring from Oxford Crown court recently drew heavy criticism when she suggested that the conviction rate for rape would not increase until women stopped drinking so heavily that they could not consent – the implication being the woman may be at fault for being drunk, rather than a male defendant raping a vulnerable, intoxicated woman.

Good2Go was a new app for mobiles, designed to avoid rape allegations post drunken encounters. In short both partners had to sign up to the app as being “Good2go” ie willing to have sex, and then confirm that they were not intoxicated. Security controls were built in to prevent someone signing in on your behalf then later relying on the app as proof of consent.

The app was partly inspired by a new Californian Bill, which requires affirmative consent, so consent must be conveyed to a sexual partner either by word or deed, but lack of resistance or objection cannot constitute consent.

The app was in reality no more than an old fashioned signed piece of paper, any person can sign something they agree to have sex, however if they later change their mind, for example, if the man refuses to wear a condom then that would still constitute rape if the man continued – the fact that both had earlier signed up to an app or signed a piece of paper consenting to sex would make no difference to that.

In England the app may suggest that a defendant had reasonable belief that his partner was consenting but it would still be a matter for the jury and would not be a defence that would prevent the case coming to court.

The makers of the app were aiming at the student market, trying to “alleviate the fears on campus” but was such an app necessary? As I have already pointed out signing up to the app does not prevent a woman from later changing her mind. Is it worrying though that the makers at the time felt there was a need for such an app? Should England sign up to an affirmative consent policy?

There are already laws in place defining consent, s74 of the Sexual Offences Act 2003 states a person can only consent if they have the choice, freedom and capacity so in theory if a person is too drunk they cannot give consent. Section 75 sets out evidential presumptions about consent, such as a person who is unconscious or asleep is taken not to have consented, so again, someone passed out through alcohol cannot be said to consent. The only difference between the SOA and the new Californian law is that the Californian law removes the limb of reasonable belief. So should we introduce a concept like this to England? In my opinion, No.

The rape laws are clear enough and men ought to know when sexual activity is consensual or not, the difficulty in getting convictions lies with some people’s preconceptions and myths that can only be broken down with education.

Jurors need to be given more robust directions about not judging complainants about what they were wearing at the time they went out, about the fact they had had a drink too many. There are no excuses for men to rape women, or indeed other men, we shouldn’t need an app to show that both parties were consenting adults. However neither should we remove the limb of reasonable belief, there will be circumstances that are not black and white whereby a man misreads signals, or a woman does consent but then changes her mind without necessarily conveying that clearly, in those circumstances it is right that a defendant gives evidence about what happened and be afforded with a defence in law if he held a genuine belief of consent.

An app like Good2Go is a gimmick, evidence of which comes from the fact Apple removed it from its store just nine days after launch. The app sparked debate, which is itself is healthy, but no App could ever remove the responsibility from men to ensure that whenever they have a sexual encounter the person they are with has the ability, freedom and capacity to consent.

Written by Michelle Heeley, Barrister at No5 Chambers.

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