England: DPP says remaining silent during rape could imply consent

The Director of Public Prosecutions has said remaining silent during a rape could be evidence of consent.

Alison Saunders said a suspect could have “reasonable belief” that the complainant consented if they remain silent.

She also said that the CPS should be “a protection” for both sides, normally understood to be one of the functions of a prosecutor, in the wake of four high profile collapsed prosecutions, which have brought into question the actions of both lawyers and the police.

Ms Saunders said there is a two-stage test for dealing with rape allegations. First, they look at the complainant’s capacity to consent and secondly, whether or not the suspect had a reasonable belief there was consent.

She told the Evening Standard: “So in some of the cases you can see why , even though the complainant may think they were raped, there was a reasonable belief that they had consented, either through silence or through other actions or whatever.

“We are there not just to be able to prosecute cases where there has been an offence, but also not to prosecute cases where there isn’t sufficient evidence.”

The DPP added: “We have never done the extreme of if someone says they’ve been raped or just wants to shout rape then that’s enough.”

The CPS’ Code for Crown Prosecutors, rule 4.2 states: “In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed.”