Cindy Laing and David Hardstaff consider the CPS's interim guidance in relation to challenging rape myths and stereotypes.

On 19 October 2020, the Crown Prosecution Service (CPS) published interim legal guidance for prosecutors on rape and serious sexual offences (RASSO), to be applicable from 1 November 2020. The new guidance is said to be the "first full refresh since 2012"1, and aims to reflect the shifting contexts in which people connect through the use of technology and the impact on sexual behaviours and encounters. As before, this guidance is to be considered when prosecutors apply the Code for Crown Prosecutors in deciding whether a suspect should face prosecution.

It is the complexity of the offence of rape and the issue of consent, as well as sometimes outdated attitudes towards sexual allegations, that increase the risk of rape myths and stereotypes being perpetuated. The new guidance addresses 40 common rape myths and stereotypes and comes after the CPS's announcement earlier this year of its new strategy to tackle the falling numbers of rape cases resulting in prosecution and conviction, 'RASSO 2025'.2

When launching RASSO 2025 in July, the CPS announced that its key areas of change would be: the impact of trauma and in particular how the memory of a complainant can be affected; reasonable lines of enquiry; cases involving same sex sexual violence, and victim vulnerabilities.

We focus here on the impact of key changes to the legal guidance relating to certain myths involving dating applications, or 'hook-up apps', as the CPS refers to them, and 'sexting'; and, 'victim behaviour'.

'Hook-up apps' and sexting

Several of the newly considered myths focus on contemporary attitudes to sex and dating, including the following:

  1. "If you send sexual images or messages prior to meeting someone, then having sex is inevitable.
  2. If you voluntarily attend someone's house after a date or night out, you obviously want sex.
  3. If you meet men online or through hook-up apps you want sex and should be ready to offer sex." 3

It is clear that in considering these 'myths', the CPS has sought to address two main groups: firstly, young people for whom the exchanging of intimate photographs and videos, or 'sexting', has become commonplace; and, secondly, users of certain 'hook-up apps', which can encourage a high turnover of often casual relationships.

Cases involving incidents said to have occurred within these contexts represent a new challenge to prosecutors and the criminal justice system more widely. In the majority of cases involving an allegation of rape, the complainant and suspect are already acquainted such that digital communications data and social media evidence inevitably play a significant role. In addressing these specific categories of communication and highlighting the risk that prosecutors and jurors may, even if subconsciously, subscribe to associated myths, the CPS has shown a willingness to adapt its policies to keep up with modern trends. These are not fringe issues; indeed Siobhan Blake, the CPS rape lead commented that "many teenagers believe that sending explicit photos or videos is a part of everyday life." Equally, the popularity of relationship apps, ranging from comparatively old fashioned 'dating' sites to what are effectively marketed as online sex clubs, shows no sign of waning.

The complexity of these communications highlights a potential tension between parties within the criminal justice system. This is a delicate area which requires a balancing act between the complainant's right to privacy (against what has been termed a 'digital strip search') and the defendant's interest in the disclosure of all relevant communications data (whether relating to the complainant or other third parties), which may be of evidential value.

Parties will also have in mind the question of the admissibility of evidence under section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts questions or evidence in relation to a complainant's sexual history. This restriction may extend to communications evidence which the defence consider to be relevant. Here lies the potential for further tension still. An understandable response to a prosecutor's attempt to negate evidence by arguing that to rely on it would be to subscribe to a 'rape myth' may be for the defence to push for the admission of as much available evidence as possible. At least then, the defence may argue, the jury can understand the full context of communications and weigh up their weight as evidence.

This exercise can only take place if both parties have access to all potentially relevant material. With this in mind, hopefully this signals a greater push for defence teams to have early disclosure of unused material which might be reasonably be considered capable of undermining the case for the prosecution or of assisting the defence­.

'Victim behaviour'

Several myths in the updated guidance focus on the behaviour of complainants following an alleged rape, including the following:

  1. "A real rape victim is visibly distressed when describing what happened to them.
  2. How can someone who has really been raped carry on with their normal life.
  3. Inconsistencies in accounts provided by a victim mean they lack credibility as a witness."4

Although not to be taken for granted, it is becoming more generally accepted that the traumatic nature of sexual offending means there is no set way in which victims behave following rape. Delays in reporting incidents are common and can have an effect on recall, memory and presentation.

However, prosecutors must also recognise that the passage of time between an incident and it being reported can impact on a defendant's ability to challenge an allegation; for example in relation to the retention of potentially exculpatory evidence, and the defendant's own ability to recall events accurately. For the defence, the importance of the complainant's first account and subsequent disclosures cannot be understated. Indeed, it is in these complex and difficult cases that the disclosure process must be capable of being relied upon as robust and fair.

Striking the right balance

The CPS's updated guidance serves as a reminder to prosecutors to keep up with the times and to recognise the ever-changing nature of relationships and sexual offending. However, the potential implications of defining certain case characteristics as 'myths' extend beyond prosecutorial decisions. This is not without its difficulties, including the risk that defendants may be prevented from making simple arguments and observations, which in isolation risk being categorised as one of the CPS's 40 'rape myths', but which also form part of a wider factual matrix.

There is undoubtedly a consensus that prosecutors and courts should avoid subscribing to outdated ideas and assumptions relating to sex and sexual offending. However, care should be taken to approach each case on its own facts and merits, and to avoid discounting potentially relevant evidence on the basis of policy alone.

The CPS's last quarterly figures showed rape convictions at an all-time low. The latest figures covering England and Wales are due out on Thursday 22 October will set the scene for the new guidance when it comes into play next month.

Footnotes

1. https://www.cps.gov.uk/cps/news/new-legal-guidance-prosecutors-helps-tackle-rape-myths-and-stereotypes-against-changing

2. https://www.cps.gov.uk/cps/news/cps-announces-five-year-blueprint-prosecution-rape-and-serious-sexual-offences-rasso

3. https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-annex-challenging-rape-myths-and-stereotypes

4. https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-annex-challenging-rape-myths-and-stereotypes

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