If the headlines were to be believed, the sudden announcement last week of new "yes means yes" guidelines in rape prosecutions, reversed the presumption of innocence before guilt in rape trials and with it one of the corner stones of British criminal justice. But that is not actually what the guidelines say, writes Ally Fogg in an exclusive analysis of the new rules for insideMAN.
This week Alison Saunders, Director of Public Prosecutions, announced that a new toolkit of rape investigation procedures is to be sent to police officers. The reaction from men around my digital neighbourhood on social media, comment threads and forums was pretty fierce - abusively angry at worst and concerned or worried at best.
The negative reactions were understandable, given the headlines. They were also misplaced. The proposals announced are I believe modest and necessary, they are also genuinely helpful not only to women and girls, but to men and boys.
What the new guidelines say
First, the facts. Despite what you might have (reasonably) taken from some of the headlines, it is not true that those accused of rape must now produce proof that they had consent in order to defend themselves. Read through to the actual words of the DPP and what she said was:
“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
If there is a scandal here, it is not that police investigators will be expected to ask such questions from now on - the scandal is that they might ever not have asked such a question in the past.
Similarly, it is not true that every drunken hookup will from now on involve a male rapist and a female victim. Again, in Saunders' words: "it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink."
Most importantly of all, it is most definitely not the case that the burden of proof in rape cases has now been reversed, that an accused man is now legally guilty until proven innocent. The guidance under discussion could not be more clear:
"In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting."
In other words the law is exactly as it stands. In order to obtain a conviction, the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. How could the prosecution prove such a case? That will continue to be very difficult.
Not changing the law, but clarifying it
Many or most cases will continue to pivot on a case of he said/ she said, and someone will still need to be found guilty beyond all reasonable doubt. The truly guilty will continue to lie through their teeth, the brave victim will continue to be put through an ordeal, as will the accused innocent. Police will still have to consider the possibility that an allegation is mistaken, misguided or malicious, and as ever, some will be so. Not much has changed.
The new guidelines do not change to law, but they do clarify it, to everyone's benefit. I hold it as an article of faith that most men are not rapists and do not want to be rapists. The law says that there is only one way to be sure you are not a rapist and that is to make absolutely sure you have your partner's consent to penetrative sex. The question that the police are now being told to put to rape suspects is no more or less than the question every one of us should ask ourselves at any time sexual consent is in doubt. If I cannot answer that question there and then, forget the police, I might be about to rape someone, and that is a far, far more important consideration.
A significant milestone for sexual consent
So the new guidelines will probably have a material influence on a tiny handful of the tens of thousands of rape reports filed each year, if that. Nonetheless they mark a significant milestone in how British society considers sexual consent. In the jargon, it has pushed us closer to a definition of consent which stands at yes means yes, rather than no means no.
One of the less-observed elements to a yes-means-yes model, is how valuable it could be for male victims of sexual violence. One of the myths of male-on-male rape is that it is primarily committed by gay men against straight men. In truth the male victims of rape are disproportionately gay or bisexual, and often their attackers identify as straight. One feature that emerges commonly from case studies is victims saying "he told me I must want it because I'm gay."
Underpinning that (homophobic) prejudice is a related myth, that men are - if you'll pardon the expression - up for it at any time. Recent years have seen a slight but growing recognition of the extent and harmful consequences of the sexual abuse of underage boys by women and even sexual assaults upon adult men - an issue which leapt into mainstream debate with the recent case involving actor Shia Laboeuf. It seems likely that many of the women committing such serious assaults do not think of themselves as sexual abusers or even rapists. They have been raised with the belief that men are insatiable animals who will never say no to anyone, allied to the pernicious though pervasive lie that an erection equals consent.
The right thing to do.
it might well be the case that male victims are far from the thoughts of Alison Saunders or most campaigners for affirmative consent. As so often in these respects, male victims tend to he thrown in as an afterthought, if at all. However the laws and the policies are gender neutral, and if there is a problem with the authorities disregarding male victims, that is not helped by the rest of us doing the same. .
Will a more affirmative model of sexual consent prevent the rape at abuse of men and boys, of women and girls? Not alone, not overnight, no it won't. However some small but profound shifts in our sexual mores, our expectations, our habits, our rituals could perhaps make a significant difference in the long term.
Even if that is ambitious, as the father of two boys I am happy to help teach them how sexual consent should be both offered and understood, explaining you should never do anything intimate with anyone unless you are absolutely sure it is what you both want. I will tell them that, not because it is what the law demands, but because it is the right thing to do.
Ally Fogg is one of the UK’s leading media commentators on men’s issues. You can follow his writing on gender at freethought blogs and find him writing in various publications especially The Guardian. He’s also a regular tweeter@AllyFogg
Also on insideMAN:
- Yes, we do need to talk about male violence, writes Ally Fogg
- Is it time to give men accused of sexual offenses anonymity?
- Why do women make false rape allegations?
Around the web:
- The new rape rules will infantilise women and criminalise innocent men
- Debate: Should men have to prove that a woman said yes?
- Consent guidance in rape cases goes beyond 'no means no'