Sext messages do not equal ‘blanket consent’, CPS advises

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Sext messages do not equal ‘blanket consent’, CPS advises

Prosecutors have received new guidance that sexual messages must be discounted in rape and sexual assault cases. The first fully updated CPS Guidelines in eight years have been drafted to take into account of the rise of digital communication and ‘hook-up’ apps and follows concerns about the use of rape victims’ mobile phones and a decrease in the number of successful convictions.

‘There have been massive changes to the way people live their lives in the last 10 years and this has undoubtedly transformed the way people interact, date and communicate with sexual partners,’ said Siobhan Blake, CPS rape lead. ‘As dramatic technological advances have changed the way people meet and connect, it’s vital those in the criminal justice system understand the wider, social, context of these changes.’ To this end, the CPS consulted victim support groups to identify 39 ‘new rape myths’, which have contributed to lower prosecution and conviction rates in cases involving the 18-24 age group. One common myth reads: ‘If you meet men online or through hook-up apps you want sex and should be ready to offer sex.’

Blake said that explicit photos and use of such apps should not be taken as ‘blanket consent’ for sexual contact. ‘The critical issue is around consent, and the giving and understanding of consent,’ she said. ‘We must not as a society or indeed as prosecutors get distracted by some of the peripheral behaviours that might seem quite unusual to us.’

Prosecutors are advised to be vigilant to these stereotypes in order to construct the strongest possible case. The guidelines also call for heightened sensitivity to the factor of trauma, which may impact the actions of victims following the alleged sexual offence. In addition, prosecutors are advised to maintain an appropriate balance between privacy and thoroughness, pursuing all reasonable lines of enquiry.

One example of this heightened sensitivity concerns sexual offences arising from ‘chemsex’, which occurs when the parties take drugs immediately before or during the sexual activity. Specifically, prosecutors are advised to be aware that victims in this context ‘may be reluctant to engage with a prosecution for fear of disclosing offences they have committed with respect to the use or supply of prohibited drugs’.

Claire Waxman, the London Victims’ Commissioner, welcomed the changes as ‘a much-needed updated that will help to tackle pervasive myths and stereotypes around rape and the culture of disbelief’.

The Guidelines form a part of an overarching five year strategy, set out in Rape and Serious Sexual Offence (RASSO) 2025,  centred on increasing the number of convictions for sexual offences, which reached a record low in England and Wales at the end of July.

The Guidelines are open for public consultation until 18 January 2021.