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Rape prosecutors in England and Wales given new advice over dating apps

Nude selfies and use of such apps should not be taken as ‘blanket consent’, says CPS

Reprinted from the Guardian, by Caelainn Barr – 2020-10-19

Dating apps like Tinder have come out on top of conventional dating websites like Match.com, at least among those under 35. As users exchange intimate photos and messages before even meeting, what does this mean for the concept of consent? In England and Wales, the Crown Prosecution Service has made it clear that exchanging nude selfies does NOT equate to sexual consent, as this article from the Guardian explains.

nude selfies are not consent
The updated legal guidance for rape and sexual assault cases comes into effect on 1 November. Photograph: Eva Hambach/AFP/Getty Images

Prosecutors are to receive new guidance on common myths and stereotypes in rape and sexual assault cases, in an attempt to turn the tide on plummeting rape prosecutions in England and Wales.

Revamped advice from the Crown Prosecution Service will cover the use of dating apps and sending explicit photos, as well as the impact of trauma and striking the balance between privacy and a thorough investigation.

Prosecutors are to be told meeting people on hook-up sites and sending explicit photos should not be taken as “blanket consent” for sex, while details about how trauma can impact victims’ memories are to be addressed in greater detail

The guidance for prosecutors, which comes into effect on 1 November and is subject to a three-month consultation, contains updates on 39 rape myths and stereotypes including false statements such as “If you send sexual images or messages prior to meeting someone, then having sex is inevitable”, and “If you meet men online or through hook-up apps you want sex and should be ready to offer sex”.

Rape convictions in England and Wales have fallen to a record low. Prosecutions and convictions more than halved in the three years to 2019-20 despite an increase in reported rapes. Last year there were 1,439 convictions, although more than 55,000 rapes were recorded by police in England and Wales.

The guidance is an attempt to address conviction rates among 18- to 24-year-olds, which are among the lowest of any age group. In 2018 the Guardian revealed men aged 18-24 were consistently less likely to be found guilty than older men on trial.

Updated guidance to prosecutors
Updated guidance to prosecutors (left) is identical to that from the merits-based approach (right). Photograph: The Guardian

The guidance issued also reinstates elements of guidance outlining the “merits-based approach”, which were previously removed. The merits-based approach (MBA) means a prosecutor should treat evidence as if it will be heard by an unprejudiced jury, rather than the “bookmaker’s approach” where a prosecutor tries to second-guess a jury.

Women’s organisations have accused the CPS of quietly moving from a merits-based approach to a bookmaker’s approach, meaning they were less likely to bring a prosecution if they thought a jury could be prejudiced against a victim.

Updated guidance to prosecutors
The guidance contains updates on 39 rape myths and stereotypes. Photograph: The Guardian

A CPS spokesperson said: “Our approach to prosecuting rape has not changed. Our legal test for prosecution – the full code test – has never included a specific reference to a merits-based assessment because it is already an integral part of the evidential stage.”

Harriet Wistrich, director of the Centre for Women’s Justice said: “We welcome the introduction of new guidance which we hope will improve decision-making by police and prosecutors and begin to reverse the recent dramatic decline in the volume of prosecutions. We believe the decline was largely caused as a result of a retreat by the CPS from a robust approach informed by the ‘merits-based approach’ to decision-making.

“However, the guidance must be properly implemented, we have seen far too many decisions recently infected by the CPS risk-averse approach and a failure to follow existing guidance on rape myths and stereotypes, with the consequence that many victims have been denied justice and perpetrators have been left free to attack again.”

Earlier this year two charities, End Violence Against Women and the Centre for Women’s Justice, were granted a judicial review of how rape cases were being prosecuted by the CPS.

At issue is whether there has been a change in how the CPS prosecutes rape. The Guardian revealed the details of a training roadshow which took place in 2017, where prosecutors were advised that prosecution rates could be improved by taking the “weak cases out of the system”.

Siobhan Blake, rape lead at the CPS, said: “We share the public’s concern about the disparity between the number of rape and serious sexual offences reported and those cases getting to court, and are determined to make significant changes to improve that for survivors of these appalling crimes.

“Clear, up to date guidance is crucial to help our specialist prosecutors make fair and effective decisions and make sure that justice is delivered in every case for victims and alleged perpetrators.”

If you have been affected…

If you have been affected by any of the issues in this article, SD Law is a firm of family attorneys in Cape Town with deep experience of helping women who experience abuse. If you have suffered sexual assault, and have been too scared to bring charges, we will support you through the process and help keep you safe. If you experience intimate partner violence, we can serve a protection order on your partner and  help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services. Contact Simon on 086 099 5146 or email simon@sdlaw.co.za for a confidential discussion. We can call you back on a safe number.

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Simon Dippenaar | SD Law Cape Town

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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