Why is society having trouble defining rape? Stylist investigates why there are still blurred lines

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Rachel*, 32, can’t really remember what happened that night, eight years ago. She can remember segments, but not all the details she would like to have in her possession. For instance, she knows she was at her friend Jane’s* house party and that her ex-boyfriend Greg*, with whom she was still friendly, was there. She knows that she was dancing and drinking a lot. And she knows that in the early hours she found a bed to sleep in. Then at some point during that foggy night, Greg joined her. She has flashes of them having sex but doesn’t remember being fully conscious or actively participating. But she’s pretty sure she didn’t say ‘yes’. In fact, she’s pretty sure she didn’t say anything at all.

Does that count as rape? Rachel just wasn’t sure. Now picture it like this: a young woman and young man, formerly sexual partners, are both drunk. The man sees his ex-girlfriend is heavily intoxicated, so he sidles into bed with her and starts touching her, undressing her, and has sex with her while she struggles for consciousness. Now, does that count as rape? In the eyes of UK law, absolutely. In the eyes of Rachel, it’s taken the best part of a decade for her to arrive at the same conclusion. But back then, after it happened, she just felt odd, unsettled. She decided she didn’t really want to see Greg again. Besides, she’d drunk too much and that was foolish. But if she’s honest about it – really honest – what happened that night has never left her.

Judging by news headlines over the past few months, it seems that Rachel is not the only person confused about what constitutes rape. From the impassioned defence of convicted rapist and former Sheffield United player Ched Evans by the likes of Hull City manager Steve Bruce, who said, “There is a question of the rape and how he’s been convicted by a jury,” to top barrister David Osborne recently stating that men should not be tried for rape if the woman is too drunk to remember whether she gave consent (under a blog post charmingly titled, “She was gagging for it”), it’s clear that for some people the line is still alarmingly blurry.

But is there anything to be confused about? To be consensual and therefore legal, sex requires clear agreement from all parties involved. Our current legislation was put in place in 2003 and goes to great lengths to delineate the issue: “Someone consents if s/he agrees by choice and has the freedom and capacity to make that choice. Consent may be given to one sort of sexual activity but not another, or with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs.” Simply put, to consent you have to be conscious, not mentally impaired by drink or drugs, and not under pressure to say yes.

According to the Office for National Statistics (ONS), one in five British women has experienced some form of sexual violence. Look around you, this means that for every 10 women sitting in your bus or train carriage, two of them will have been or will be sexually assaulted in their lifetime. Of course, this figure is a fraction of the reality. Despite the fact that the number of reported rapes increased by 29% in 2014, around 89% are never reported, and 38% of victims never tell anyone.

Such is the confusion about the issue that at the end of last month, the director of public prosecutions, Alison Saunders, introduced new guidelines which aimed to elucidate it for the police and prosecutions service. The message to prosecutors was clear: consent is not a grey area, it is clearly defined by law. Worryingly, this suggests that, even legally, there hasn’t been agreement on what rape is. Strange, considering rape and its illegality are not new concepts. It came into English law as ‘forced sexual intercourse’ in the 12th century and has been subject to numerous clarifications since. There were far-reaching reforms of the rape law during the 18th and 19th centuries – including the raising of the age of consent from 13 to 16 in 1885, though only in 1991 did it become possible to convict a husband for raping his wife in England.

“Rape is rarely what everyone thinks: a stranger dragging a woman off the street at night, at knifepoint,” explains Saunders. “It’s often a person known to the victim and many complainants freeze, they don’t struggle, but they don’t consent either.” Rape is rarely a ‘yes-means-yes’ and ‘no-means-no’ situation; there are as many nuances to the context surrounding an attack as there are to consensual sex.

The debate

Yet, despite the very clear definition of what consent is, the debate about culpability powers on. Last year, English Judge Mary Jane Mowat contended that rape conviction statistics will not improve until women “stop getting so drunk” (she meant that a sober woman is more likely to be able to give solid evidence about an attack and, therefore, more likely to secure a guilty verdict). The soundbite chillingly side-steps the fact that if a woman is so drunk that she can’t remember details, then by law she is too drunk to consent.

In the recent Ched Evans case, the jury was tasked with adjudicating on that very issue. In its starkest telling, a woman leaves her friends at 3am tottering with alcohol. She meets footballer Clayton McDonald outside a kebab shop in Rhyl. They get in a taxi together and McDonald sends his friend, Ched Evans, a text that simply reads, ‘Got a bird.’ McDonald and the girl go to a local hotel and proceed to have sex. Twenty minutes later, Evans let himself into the room, waits for McDonald and the woman to finish, then he too has sex with her. She wakes naked and alone in a hotel room. She doesn’t remember how she got there, though she is aware that she has had sex. CCTV footage puts her with McDonald. She calls the police and when Evans and McDonald are arrested they claim that the sex was consensual; that she was as willing as they were.

In his summing up at the end of the trial, Judge Merfyn Hughes QC explained to the jury, “A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink or drugs, but there are various stages of consciousness from being awake to dim awareness of reality […] Was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent. If on the other hand you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty.” The jury found McDonald not guilty on the grounds that she could have given consent when they met. Evans, on the other hand, was a different matter.

“One defence for rape is reasonable belief,” explains Saunders. “If a perpetrator reasonably believes that a woman gave consent then he is not guilty.”

Helen’s* story demonstrates this. She met her future husband when she was 21 and they lived a nomadic life outside of the UK. When they finally decided to come home, after 15 years together, the marriage wasn’t working. “He slept in a different room,” she says. “We were selling the house and going our separate ways.” One night, two weeks before the move, Helen’s husband let himself into her room and raped her. “I was sleeping and woke up with him inside me. I told him to stop and eventually he did. Afterwards, I was numb, so afraid and so shocked. I remember saying to him, ‘What you’ve just done is rape,’ and he laughed at me. I went to the police an hour later.” When they arrested Helen’s husband, he admitted to having sex with her but contested he’d done nothing wrong. “He was found not guilty,” she explains. “Because I was his wife he had a ‘reasonable belief’ that I would have given or was giving consent.” This is despite the fact that if someone is asleep, by law they are unable to give consent and any sexual activity is rape.

Stephanie* also knew her rapist, a work acquaintance. On a night out with friends, he bought her a few drinks and before she knew it, she woke up in a hotel room, with him on top of her. “I passed out again immediately. When I woke I was naked and confused. I’ve gone over that night a thousand times, counted out all the drinks I had – five – thought over and over about what I was wearing, and what I said to him.” It took Stephanie three weeks to go to the police, “I didn’t have the courage at first. I was engaged. I thought people would judge me. Then I heard that another woman had a similar story about him and I knew I had to come forward.” In this instance, the police decided not to take the case further, citing lack of evidence. “I’m angry more than anything,” says Stephanie. “I understand the difficulties of the case, but I also feel I haven’t been kept in the loop. I’ve been suffering from post-traumatic stress disorder. I don’t know what my emotions will do on any given day.”

Non-verbal consent

Of course, we live in liberated times: sex happens in corridors, cars and cloakrooms. We drink, we dance, we stumble home, sometimes with a stranger in tow. We meet partners online, in bars, on the bus home. To confuse matters, consent is rarely given verbally; how many times do we stop to talk to our intended about what we’re doing, how often do we await a definite statement: “Yes, I’m happy to proceed with this sexual act”? In fact, one Australian study found that 93% of women encourage their partner sexually by not stopping them, and 98% encourage them by responding to advances. Verbal consent is not a common element of sexual relations.

Complications such as non-verbal consent and reasonable belief make rape a difficult crime to prosecute. What’s more, most attacks happen in private spaces, away from witnesses and without the conclusive proof that would compel a juror to believe, beyond reasonable doubt, in a defendant’s guilt. The burden of proof rests with the prosecution; essentially it’s up to the accuser – with the help of the police – to gather evidence which proves someone is guilty. This is the beating heart of our legal system and a positive thing, because few people would argue against the fact that putting an innocent person in prison is the worst possible outcome.

Yet, we can’t ignore that so few assaults ever result in conviction. If a victim decides to go to the police, to relive the attack in a grey statement room, to submit herself to examinations and cross-examinations, the likelihood of the case being referred to the Crown Prosecution Service is 28%. As in Stephanie’s case, a lack of evidence, or witness testimony, often means that there aren’t sufficient grounds to prosecute. If the police do feel a woman’s case is strong enough, this woman will go to trial, might take the stand, might face her attacker and at the end will have a 60% chance of seeing him convicted. All in all, this means that of the reports filed to police, about 6% result in rape convictions. Undeniably, in these statistics, there are the bones of an argument to be made against a system which seems unwilling or unable to stand for the rights of abused women.

What's to be done?

We will undoubtedly continue to try cases that, unlike in times gone by, don’t question whether the sex happened, something forensics can usually prove, but will rest on how each party interprets the situation. And what we need, as women, is to be given the freedom to behave as we choose without being punished with rape. The problem with views like Judge Mowat’s is that they skew the odds against us by putting the onus on a woman’s actions (Was it dark? Was she drunk? Was she alone?), rather than asking the more salient question of what type of man chooses to approach and have sex with someone who is clearly vulnerable.

The recent UN Barbershop Conference aimed to address the issue of violence against women and girls, by inviting men to sit down and discuss gender equality. There was a feeling that, for the first time, the responsibility for ending gender discrimination was being put on the discriminators. The recent HeForShe campaign – a UN initiative encouraging men to play an active role in the fight for gender equality – did something similar, focusing on men coming together to make the world fairer for women.

Alison Saunders’ new guidelines also aim to shift focus. “The work we’ve been doing is about making sure that police and prosecutors ask the right questions. And what we should be asking is, ‘How do you know she gave consent?’” she explains. There is also a growing movement that aims to make ‘affirmative consent’ part of sexual conduct. Consent classes have been added to the curriculum in some schools – making it clear to teenage boys that it isn’t up to the drunk girl at the house party to protect herself, it’s up to them not to take advantage. And just last year, California brought in Bill 967, which sets out an ‘affirmative consent standard’ on college campuses – a ‘yes means yes’ rule. It states that for sexual activity to be legal, it requires “affirmative, conscious and voluntary agreement” from both partners. It’s about educating the next generation that every sexual act needs affirmative consent from all sides.

In the UK, campaign group Juries is calling for a change in the law that would see juries in sexual offence trials given “mandatory briefings in myths and stereotypes about sexual violence”. Their argument is that too few people know what constitutes rape in the eyes of the law. To ensure women get justice and perpetrators are held accountable, they suggest it isn’t just prosecutors who need to be clear on what is and isn’t consent, it’s also society.

Ultimately, we should all know what rape is: unwanted sexual intercourse. It seems so simple. Yet, we’ve come to a point where other considerations – what was she wearing? how much did she drink? – are clouding our judgment, hinting at the inequality the Barbershop Conference, Saunders and HeForShe are standing against.

If the discussions are happening at an international level, things are moving in the right direction. Now it’s up to us – all of us – to reject tired notions that for too long have stood in the way of justice and to say clearly there are no shades of rape, there is just right and wrong.

Help is out there

If you or someone you know has experienced any form of sexual violence and don’t know what to do, here are the charities that can help

Rape crisis
This organisation aims to improve services for women and girls who have experienced sexual violence and raise awareness of the problem on both a local and national level. Rape Crisis runs a network of centres and support groups throughout the UK and their website carries clear information about current rape laws. They can refer you to a local support centre for counselling or independent advice.

0808 802 9999;

Women against rape
A group providing emotional and legal support, legal information, advocacy and self-help information for victims of sexual assault. They are particularly good at offering support to women who are unsure of their rights after an attack has been reported to the police. Founded in 1976, Women Against Rape also campaigns for change and has helped to make alterations to UK law, including making rape in marriage a crime.

020 7482 2496;

The Survivors Trust
An umbrella agency which is partnered with more than 135 support groups and organisations throughout the UK. The Survivors Trust aims to empower and support victims of sexual abuse, while raising awareness of rape and sexual violence. Their website provides information on the long-term effects that victims can suffer, such as post-traumatic stress disorder, as well as online resources for abuse survivors.

01788 550554;

As well as running a number of refuges throughout the UK and centres for genderbased violence, this organisation operates a 24-hour domestic violence helpline which offers support and advice. Their Independent Domestic Violence Advocates provide expert guidance for women going through civil and criminal courts, and their campaigns aim to educate the general public and ultimately prevent domestic violence from occuring.

0808 2000 24;

Will we ever stamp out victim-blaming in cases of sexual assault? Read more of the argument here

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Stylist Team