“Two-tier” justice has entered the public lexicon. But it is a euphemism. Call it what it is: injustice. This politically-driven phenomenon did not spring out of nowhere. It is not simply a product of the current government or prime minister. It is, after all, implemented by the judiciary not politicians – and the lack of proper independence of those two institutions did not arise suddenly in the last year or two.

Stephen Baskerville will remind us that the corruption of our courts, or those in the USA or the rest of the West, arose first in the family courts. After that it spread rapidly, under the same ideological driver, into the criminal courts in the specific context of sexual offences.

Beware of tolerating the undermining of a principle of justice merely because the context involves disadvantaging a demographic for whom you have scant regard. Because once the principle has been overturned in one context it has been overturned full stop. And soon it will impact on people you are concerned about, perhaps yourself.

Justice is indivisible. There is no such thing as justice for some but not for others because that is not justice. Society at large therefore needs to be wary of demonising people because their villainy has been assumed, not demonstrated, and then tolerating an erosion of key principles of justice in order to give spurious legitimacy to that assumption. In this way, prejudice against some leads to wider corruption of justice.

In the rest of this article I illustrate this process in the context of sex offences in England and Wales. I have written of these things before but it is time for a reminder and a summary.

Gendered Law

Rape is an explicitly gendered law in England and Wales. It is defined as penetration using a penis. Similarly the offence “assault by penetration” is gendered because it fails to cover “made to penetrate without consent”. However, there are also gender-neutral offences defined by the Sexual Offences Act 2003. For example “sexual assault” is not gendered, in principle. The offence “causing a person to engage in sexual activity without consent” is gendered in its specific provisions related to penetration (maximum sentence life imprisonment), but also contains a gender-neutral provision unrelated to penetration which is still a serious offence carrying up to 10 years in prison.

This is the de jure law. But the de facto law is not that. In the case of adult male victims and female perpetrators the sexual offence laws are notable for being largely or completely ignored. The consent of men to sex acts by women is never questioned. It does not arise.

Consent

Sexual offences are defined in reference to consent. This puts sexual offences into a unique category. In other offences the fact that an offence has occurred is objectively verifiable. Whilst mens rea, the state of mind of the defendant, is an important principle of justice it does not bring into question whether the event in question has taken place. But in the case of sexual offences, whether or not a crime has occurred at all is itself defined in terms of the state of mind of the complainant: their consent.

This puts the defendant in a uniquely difficult position. This key determinant of his guilt or innocence depends upon certain claims relating to the state of mind of the very person who is his adversary in court. These claims are,

• The defendant genuinely believed that the complainant consented, and,
• This belief was reasonable.

The Crown Prosecution Service’s Prosecution Guidance on Rape and Sexual Offences (chapter 6) states that there is no requirement that the complainant communicated lack of consent. 

However, CPS advise that some evidence must be put before the jury suggesting lack of consent.

As an example of such evidence the CPS cite the complainant being incapable of consenting, or knowing what was happening, due to the influence of drink or drugs.

Guilty until Proven Innocent

A key principle of justice in English law is the idea that everyone is innocent until proven guilty. This is more than an empty platitude. It throws the burden of proof onto the prosecution to prove guilt. But the nature of sexual offences defined by consent, reverses that principle. The burden now falls on the defendant to prove the two bullet points above to the satisfaction of the court. He has become obliged to prove his innocence. If he cannot then he is convicted.

In additional to this reversal of the usual principle of justice, the defendant faces a host of other difficulties, most of which are specific to sexual offences, as follows,

• The nature of his task is intrinsically difficult due to the dearth of objective (e.g., physical) evidence or witnesses, and the centrality of beliefs and states of mind for which other people can have no direct knowledge;
• The issue of capacity;
• The issue of institutional bias;
• The issue of societal bias;
• The issue of disclosure;
• The issue of “rape myths”

These issues are now discussed.

Capacity

Section 74 of the Sexual Offences Act 2003 defines consent thus: “a person consents if (s)he agrees by choice, and has the freedom and capacity to make that choice.”

The Crown Prosecution Service’s Prosecution Guidance on Rape and Sexual Offences (chapter 6) amplifies this advising that consent is considered in two stages,

• Whether a complainant had the capacity (that is the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
• Whether he or she was in a position to make that choice freely, and was not constrained in any way.

What will concern us particularly here is the court’s interpretation of the complainant’s capacity to consent after voluntarily drinking alcohol. It is so common for a woman to have been drinking before having sex that a draconian interpretation that even a single drink removes a woman’s capacity to consent would result in almost all men being rapists. Though this might seem to rule out such an interpretation by reductio ad absurdum, lamentably it does not because “all men are rapists and all PIV sex is rape” is the line that radical feminists have been touting for half a century.

Institutional Bias (1) The CPS on Capacity

The Crown Prosecution Service’s Prosecution Guidance on Rape and Sexual Offences (chapter 6) is the source of the profession’s advice on exactly that issue: the matter of when capacity to consent is lost due to having consumed alcohol. This guidance states that,

“Prosecutors must be familiar with a number of key cases on this topic.”

It proceeds to cite four such precedent cases, indicating only very briefly their import. Two are quoted as relating specifically to the issue of intoxication but only one has its import briefly stated in the CPS guidance. It is this,

“A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious. A prosecutor must consider the complainant’s state of mind at the time of the alleged assault.”

The quoted precedent is R v Bree [2007] EWCA Crim 804 paragraph 34. The above quote is all the guidance that the CPS gives and hence appears to leave the crucial matter open: just how much alcohol need be consumed before capacity to consent is lost? The CPS here appears to have chosen to withhold the full precedent despite quoting the very paragraph in question. The entirety of R v Bree [2007] EWCA Crim 804 paragraph 34 is this,

“In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.”

This gives a rather different picture from the truncated quote in the CPS guidance in which it is more reasonably observed that “even substantial quantities of alcohol” may result in the complainant having remained “capable of choosing whether or not to have intercourse”. Moreover paragraph 35 goes on to further amplify this crucial individual-specific factor,

“Considerations like these underline the fact that it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption. Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others, and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves.”

This position seems to me to be far better aligned with the likely opinion of a typical member of the public.

The other relevant precedent case that the CPS guidance cites but does not quote from was R v Khamki [2013] EWCA 2335. This is consistent with the above R v Bree case. The Khamki appeal followed a conviction for rape, the basis of the appeal being that the original trial judge did not guide the jury properly on the issue of capacity to consent. The appeal judges found otherwise, that the original trial judge had given the jury the correct advice, and the relevant parts of that advice, from paragraph 17, were,

“A woman can have the capacity to make a choice to engage in sexual activity, even when she has had a lot to drink obviously. Alcohol can make people less inhibited than they are when they are sober and obviously everyone is free, we are all free to decide how much to drink and whether to have sex or not. However, if through drink a woman has temporarily lost her capacity to choose whether to have sexual intercourse or to engage in sexual activity of another sort, she would then not be consenting. Clearly as I have said, a person who is unconscious through the consumption of alcohol cannot give consent, and it may well be there is before that complete loss of consciousness, a state of incapacity to consent which can be reached.

So there are of course, and this is common sense again, various stages of consciousness, are there not, from being wide awake to having a dim awareness of reality. In a state of dim and drunken awareness, a person may not be in a condition to make choices, so you will need to consider the evidence carefully in this case as to what was M’s state of consciousness or unconsciousness at the time of penetration, and decide firstly was she in a condition in which she was capable of making a choice one way or the other.”

The council who appeared for the appellant in this appeal noted that the original trial judge “did not sufficiently emphasise the well-known fact that a regretted but drunken consent remains a consent”.

The CPS chose not to convey the rejection by both appeal hearings of any simple equation between drinking and capacity to consent. In their precis of the key points, the appeal judges reiterated that “a person can still have the capacity to make a choice and have sex even when they have had a lot to drink (thereby consenting to the act)”.

Although the CPS guidance cites these precedent cases, it fails to convey the crucial ruling that drink alone is insufficient to annihilate capacity to consent.

However, the CPS guidance, quoting, R v Hysa [2007] EWCA Crim 2056, does advise that “issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine”. This seems entirely sensible in view of the other features of a case which might have a bearing on the capacity to consent, i.e., that capacity should not be assumed to automatically evaporate after drinking. However, as the R v Khamki appeal demonstrates it is crucial that the judge guides the jury thoroughly in respect of the nuances described properly above. Had the original trial judge in the Khamki case not done so, no doubt the appeal court would have quashed the conviction. As long as the jury is correctly advised regarding the capacity to consent, as described above, it is up to the jury to make the decision.  

In short, it is not the complainant’s drinking that is relevant but their capacity to consent and this does not follow from having taken alcohol alone but must be established by other means. Those “other means” must be found and presented at court by the defence.

Interpretation of Capacity in Practice

Despite the position taken by the appeal cases, above, what line do the courts take in practice in respect of loss of capacity through drink? In 2017 barrister, and former policewoman and solicitor, Cathy McCulloch advised men against having sex with a woman who has had even one drink. This was based on her 34 years of experience, including as both a defence and a prosecution barrister in rape trials, and so suggests that this draconian line on a woman’s capacity to consent does occur in practice, and perhaps not uncommonly. McCulloch warns that “the mixture of alcohol and sex can be toxic. It can give a criminal record to even the most lovely person who would never deliberately do anything to hurt anyone, let alone knowingly commit the evil act of rape”.

It is this outcome that is the motivation for my concern which underlies this article.

Institutional Bias (2) Disclosure

The rash of collapsed rape cases in early 2017 led to an awareness by the public of the parlous state of disclosure. This resulted in the early departure of then DPP Alison Saunders.  

Disclosure is the formal name by which evidence that has been acquired by the prosecution is made known to the defence. The prosecution is obligated to provide the defence with any material which could undermine the prosecution case or strengthen the defence case (though there may be some judgment involved in deciding whether evidence falls into this category).

For convenience of exposition we can extend the term “disclosure” to include the gathering of evidence by the police and their subsequent passing on that evidence, initially to the prosecution. The key role of the police is crucial because they are the body charged with investigating the issue. Lawyers do not do so. Disclosure failures can arise if, (i) the police fail to acquire or assess evidence that is relevant, or, (ii) the police fail to disclose it to the prosecution, or, (iii) the prosecution fail to disclose it to the defence.

In rape cases where the defence seek to demonstrate the complainant was capable and consenting, social media messages might be the only means by which an innocent man avoids a very long prison sentence. The famous case of Liam Allen is a prime example in which a message from the complainant to a friend after the event stated bluntly “it wasn’t non-consensual or anything”. And yet there continues to be push-back on searching a complainant’s mobile phone on the grounds of privacy.

Disconcertingly, the CPS guidance on this specific issue in Social Media: Reasonable Lines of Enquiry includes this,

• “There is no obligation on investigators to seek to review a witness’s digital material without good cause.
• The loss of a mobile device for any period of time can amount to an intrusion into a witness or complainant’s personal life. Consideration should therefore be given to whether the relevant messages or other communications are available on the suspect’s digital devices, within the witness or complainant’s social media accounts or elsewhere, thereby potentially avoiding the need to take possession of the personal devices.
• If a reasonable line of inquiry is established to examine, for example, communications between a witness and a suspect, there may be a number of ways this can be achieved without the witness having to surrender their electronic device.”

The disturbing thing about this advice is that it suggests that the police might have to confirm the relevance of evidence they have not yet seen in order to justify searching for it – the ultimate catch 22. And confiscation of the suspect’s mobile and other IT devices is commonplace, the above concerns appearing not to apply to him.

The Justice Select Committee which carried out an investigation following the 2017 disclosure failures stated, “the law is clear in that the right to a fair trial is an absolute right which cannot be violated to protect the right to privacy”.

The Select Committee also saw fit to remind the CPS of some fundamental principles, including, “Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction” and “It is fundamentally important that all police officers recognise both that they are searching for the truth and that they have core disclosure duties which are central to the criminal justice process”. One might have hoped that these principles did not need restating, but it seems they do. The mindset of the CPS is rather betrayed by commonly referring to a conviction as a “success”.

Concerns over disclosure now focus on Operation Soteria and its embedding within police procedure. This initiative, originally imported from the USA, promotes a close collaboration between the CPS and the police in “building a case”, following specific protocols promoted by Soteria, the whole being overseen by academics. The nature of the Soteria process was more transparent when it was first piloted in 2022 as the CPS’s own press release at that time made clear. I have criticised the initiative previously here. The emphasis is on building “stronger” cases, by which is meant a case which is more likely to result in conviction. But such a mindset is what drives the police to put all their effort into finding prosecution evidence but little effort into finding exculpatory evidence, i.e., disclosure failure.

There are now mountains of verbiage around Soteria, such as the CPS’s The National Operating Model for Adult Rape Prosecution or Operation Soteria Bluestone Year One Report – GOV.UK. These are less forthright than the original press release. Though references to the “building of cases” can be found, this is mostly buried behind terms like “victim centred” and “supporting the victim” and avoiding victims feeling they are on trial. But terminology betrays. The first of these documents contains the word “victim” 62 times but the word “complainant” not once. The second (authored by academics) contains the word “victim” 872 times but the word “complainant” just 3 times.

The origin of Soteria in a highly partisan lobby is clear, for example from the people and bodies consulted, including, the Victims’ Commissioner, the London Victim’s Commissioner, the Domestic Abuse Commissioner, Rape Crisis, The Survivors Trust, Southall Black Sisters, Women’s Aid, Welsh Women’s Aid, End Violence Against Women and Girls Coalition (EVAW), Centre for Women’s Justice, Latin American Women’s Rights Service (LAWRs) and the Women’s Resource Centre.

The defendant has no representation in this process. The declared aim is to increase convictions. In contravention of the Justice Select Committee’s report, this is unconstrained by any acknowledgement of the paramount importance of truth and justice.

Men’s Intoxication is Irrelevant

Any degree of intoxication does not allow a man to evade responsibility for his actions, nor to evade responsibility for ensuring the consent of his partner and correctly gauging her capacity to consent.

However, there is another context in which the man’s intoxication is ignored in the de facto law, namely in the context of the man as the victim of a sexual assault rather than its perpetrator. In principle, if a woman has sex with a man who has been drinking, and if drinking removes the capacity to consent, why is that woman not guilty of  “causing a person to engage in sexual activity without consent”? The de facto position appears to be this,

• Even a single drink may remove the capacity of a woman to consent, but,
• Even large amounts of drink never remove the capacity of a man to consent (unless, possibly, he is actually unconscious, though prosecution of the woman is doubtful even then).

The second bullet applies even if the woman has not taken any drink.

This disparity cannot be physiological or cognitive; it is clearly prejudice.

Demonstrating Capacity to Consent

An accused man faces the problem of demonstrating the woman’s consent and her capacity to do so. Recall how wrong it is in principle that the accused is obliged to prove his innocence, but it is so. This difficult task is made harder because, (i) key evidence may not have been disclosed, and (ii) counter-narratives attempt to discredit evidence that the public might naturally be inclined to consider relevant. An example is evidence, such as messages or witness statements, that indicate the woman continued to be on good terms with the man after the event. Longstanding feminist arguments attempt to discredit this as having any bearing on consent at the time in question. But feminist arguments will attempt to discredit anything that stands in the way of a conviction, and the psychological veracity of such claims is dubious. Some feminists even appear to support a woman’s right to withdraw consent after the event.

Key evidence might be witness statements regarding the woman’s apparent condition immediately prior to the sex act. Despite drink, did she seem capable of making her own decisions? But a determined prosecutor can always argue that, after drink, her apparent consent was actually invalid. This perspective seems to have been triumphant in many cases if Cathy McCulloch is correct.

Juries

Ultimately an accused man’s fate is determined by the jury. Jury’s will be fallible, but jury trials are a bulwark against institutionalised bias and a time-honoured principle of common justice. The lobby seeking to increase convictions has long proposed doing away with juries in rape trials. This was intended to be piloted in Scotland, but the plan has now been scrapped. One of the arguments that is used to support juryless trials is that the public are inclined to believe in so-called rape myths. I have written in detail about UCL’s Professor Cheryl Thomas and her team’s work to examine this claim. Their conclusion was that it is emphatically untrue. The actual juries they studied did not believe these “rape myths”. Indeed rape myths themselves appear to be a myth.

In a broader context, Justice Secretary David Lammy is proposing to massively restrict the ancient right to a jury trial in England and Wales by only guaranteeing it for defendants facing rape, murder, manslaughter or other cases passing a public interest test. Ostensibly this is solely to facilitate clearing the courts’ massive backlog of cases, though the considerable savings of money must also be a consideration. One can easily anticipate the practice spreading to all trials once embedded.

How common is sex after drinking?

Rather an unnecessary question in Western countries, isn’t it? Exact percentages aside, it is commonplace for women to engage in sex after drinking alcohol. Some reports claim that 80% of first-time sex involves alcohol consumption. It seems that a sizeable proportion of women only have sex after drinking. Recent reports suggest that sex after drinking (and, indeed, sex at all) is falling among Gen Z. But at present the concerns expressed in this post are directly relevant to almost everyone. All that stands between almost all men and a long prison sentence is for an accusation to be made and for the man’s defence to fail to discredit it.  

Lamentably, any lingering faith in British justice is unlikely to survive a close involvement with it.