Rape and Sexual Offences - Annex A: Tackling Rape Myths and Stereotypes

1. Rape is always violent or involves physical force. (FALSE)

• Ignores the reality of rape.
• Disbelieves and invalidates the experience of the victim.
• ·Disregards elements of power, control and humiliation in rape.

• Rape doesn't always leave visible signs on the body or the genitals.
• Challenge any implication that rape involves injury - consider calling a Forensic Medical Examiner as a live witness in appropriate cases.
• Rapists may use manipulative techniques to intimidate and coerce their victims.
• The victim may be legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their life.
• Victims may become physically paralysed with terror or shock and are unable to move or fight.
• Self-protection/defence can be through disassociation or freezing - any effort to prevent, stop or limit the event.

See section in this legal guidance on ‘Understanding vulnerabilities: Pre-existing mental ill health and potential psychological reactions to sexual abuse’

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium - Example 12.

2. Rape most commonly occurs between strangers in dark alleys. (FALSE)

• Assumes that home is always a safe place and that rape cannot happen between parties that know each other.
• Implies that rape can be prevented by avoiding certain places and therefore blames the victim.

• Challenge any implication that rapists only rape strangers. Most rapes are committed by persons known to the victim.
• Date or acquaintance rape is common.
• Most victims are raped in their homes, by their intimate partners.

Andreous [2014] EWCA Crim 1578 Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.

3. Prostitutes / sex workers cannot be raped. (FALSE)

• Provides an excuse for sexual abuse.
• Disempowers prostitutes / sex workers.
• Assumes that prostitutes / sex workers consent to any and all sex under any circumstances, with anyone.

• Rape can have a lasting and devastating impact on any victim.
• Prostitutes / sex workers have the same rights under the law as anyone else: the transactions they negotiate with clients are for consensual activities, not rape.
• Perpetrators often deliberately target individuals on the basis that they are less likely to be believed, which can include prostitutes/sex workers.
• Consider the overall context of the allegation including the vulnerability of the victim and their freedom to choose. Consider also targeting and steps to obtain consent and reasonable belief that someone was consenting.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people – Individuals involved in prostitution’

4. You cannot be raped by your husband or partner. (FALSE)

5. The victim had previously consented to sex with the accused a number of times so s/he must have consented. (FALSE)

• Disbelieves the victim and dismisses their experience;
• Supports an ideology of male entitlement to sex and female subordination within intimate relationships and more widely.

• A significant proportion of rape occurs within an intimate relationship, against a background of domestic abuse, involving power and control.
• Under the law, everyone - irrespective of their relationship status - has a right to choose.
• A person who has freely chosen to have sexual activity with another person in the past does not, as a result, give general consent to sexual intercourse with that person on any other occasion.
• Consider the context of the overall allegation including what impact the relationship had on someone’s freedom to consent, and the presence of domestic abuse and in particularly controlling or coercive behaviour. Focus on steps taken to obtain consent and reasonable belief.

Consider whether the use of Section 41 YJCEA 1999 (CPS legal guidance) ‘the sexual history of complainants’ might be helpful here.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people – Sexual abuse in a domestic setting and, if relevant, Teenagers in abusive relationships’ which provides further information about particular pressures faced in this context.

Section 142 CJPOA 1994 - Rape redefined to include non-consensual anal intercourse with a male or female as of 3 November 1994

R v R [1992] AC 599 held that a marital rape exemption did not exist in English law.

In R v S [2010] EWCA Crim 1579 the trial judge did not permit cross examination about a previous act of sexual intercourse said to have taken place between the parties a few days prior to an incident of a violent rape committed upon a wife by her husband.

There are circumstances where a jury will require assistance with the distinction between reluctant but free exercise of choice, especially, but not exclusively, in the context of a long-term loving relationship, and unwilling submission due to fear of worse circumstances. A direction along the lines of Pill J approved in Mohammed Zafar Unreported, June 18, 1993 ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.’

CA & Watson [2015] EWCA Crim 559: Context is critical. Submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence. 

Crown Court Compendium - Example 10

Crown Court Compendium - Example 11

6. If your culture condones, or is perceived to condone, marital rape, underage “sex”, or forced marriage, then you should not be upset about it/it does not matter as much/it’s more of a grey area. (FALSE)

• Condones rape due to cultural reasons.
• Creates further barriers to accessing support and justice.

• Under the law, everyone - irrespective of their background - has a right to choose.
• Racial and religious stereotypes can play out in different ways in rape cases.
• Identify and challenge any racial or religious justification for rape with reference to the law.

There are circumstances where a jury will require assistance with the distinction between reluctant but free exercise of choice, especially, but not exclusively, in the context of a long-term relationship, and unwilling submission due to fear of worse circumstances. A direction along the lines of Pill J approved in Mohammed Zafar Unreported, June 18, 1993 - ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.’

CA & Watson [2015] EWCA Crim 559:  Context is critical. Submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence.

See section in this legal guidance ‘Chapter 5: Issues relevant to particular groups of people: Minority Ethnic Communities, Sexual abuse within a domestic setting and, if relevant, Teenagers in abusive relationships’.

7. Sexual abuse at the hands of a perpetrator which took place when the victim was a child has no bearing on the issue of consent if the same parties go onto engage in sexual activity as adults. (FALSE)

• Context, background and history are irrelevant factors when considering consent.
• Disregards elements of power, aggression, violence, control, entitlement and humiliation in rape.

• Context is important.
• If sexual abuse took place at the hands of the same perpetrator when the victim was a child this has the potential to be directly relevant to the issue of consent.
• In cases involving the alleged grooming of vulnerable complainants apparent consent to sexual activity may not amount to consent in law. 
• The 2003 Act identified three categories of offences against children of different age: offences against those under 13, under 16 and under 18.
• Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”
• Consider guidance in relation to consent contained in CPS Rape and Sexual Offences Legal Guidance.

R v C (2012) held that once the jury were satisfied that sexual activity of the type C alleged occurred when C was a child, and that it impacted on and reflected his dominance and control over her, it was open to the jury to conclude that the evidence of apparent consent when she was no longer a child was indeed apparent and not real, and that D was well aware that in reality she was not consenting.

Ali and Ashraf [2015] EWCA Crim 1279 held that submission achieved by high level psychological coercion in the context of any pre-existing relationship between the defendant and the complainant may not amount to free agreement.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Victims of child sexual abuse and exploitation’

The Crown Court Compendium endorses the comprehensive direction on the difference between consent and compliance or submission that was given in Ali and Ashraf [2015] EWCA Crim 1279

8. Rape is only a crime of passion. (FALSE)

• Romanticises rape and implies that rape is the same as sex.
• Assumes that rape is impulsive, unplanned and about uncontrollable ‘passion’.
• Assumes men to be incapable of delaying gratification or controlling sexual urges.

• Some rapes are premeditated and planned.
• Men are capable of controlling sexual urges and refraining from raping women and other men. An assertion contrary to this is sexist.
• Some rapists may reframe events, even to themselves, to claim they were spontaneous and consensual and others may claim the complainant ‘knew the rules’, ‘they were equal’ (despite any inequalities) or they ‘both got carried away’.

New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.

9. When it comes to sex, men have a point of no return. (FALSE)

• Disregards elements of power, aggression, violence, control and/or humiliation in rape.
• Deprives a victim’s right to choose.
• Attempts to remove the responsibility for the rape from the rapist.

• Consent is an ongoing act and can be subject to certain conditions.
• In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Therefore, withdrawal of consent at any point before or during the act is perfectly possible and is the right of any individual to exercise at entirely their own discretion.
• In reference to the law on consent consider what consent was given for. E.g. consent to vaginal, not oral or anal sex; consent only with a condom; consent conditional upon withdrawal before ejaculation.

New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.

Assange v Swedish Judicial Authority (2011) consent conditional on the use of a condom: It would plainly be open to a jury to hold that if (C) had made clear that she would only consent to sexual intercourse if (D) used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom.

R (F) v DPP (2013) consent conditional on withdrawal before ejaculation: She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated.

Crown Court Compendium Section 20-1, Example 11

10. Young adult men should not be convicted as they have their whole lives ahead of them / have good character references. (FALSE)

• Assumes that law does not apply equally to all.
• Implies that the implications for the offender are more important than the impact of rape on the victim as well as wider justice and safety considerations.
• Implies that young adult men are less able to understand consent.

• Rape can have a lasting and devastating impact on victims irrespective of the age of the perpetrator.
• Young offenders can be just as dangerous as older offenders and can be serial offenders.
• Prosecutions will always proceed where there is sufficient evidence and it is in the public interest.
• Challenge any assumption that attempts to remove the responsibility from an adult rapist due to their age / future prospects.

Andreous [2014] EWCA Crim 1578. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.

11. He was satisfying demands for BDSM / choking / aggressive sex. This cannot be not rape. (FALSE)

• Assumes consenting to BDSM is consenting to any type of violence, abuse or rape. 

• BDSM can be explored between two consenting adults following discussion about safety and harm;
• Consent is an ongoing act and even within BDSM can be subject to certain conditions;
• Consider any discussion prior to the incident related to exploration of BDSM in general as well as: safety, risk, harm, the use of safe words, limits which someone might want to explore cautiously and activities which someone never wants to try.
• In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Therefore withdrawal of consent at any point before or during the act is perfectly possible and is the right of any individual to exercise at entirely their own discretion.
• Consider carefully the context of the allegation and any role which alcohol or drugs might have on freedom and capacity to consent as well as steps taken to obtain consent and reasonable belief that someone was consenting.

R (F) v DPP (2013)She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated.

Kaitamaki (1985) Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw.

R v Olugboja (1982) held that the jury should be directed that consent, or the absence of it, is to be given its ordinary everyday meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves submission, but it by no means follows that a mere submission involves consent.

Crown Court Compendium – Example 11

12. Only gay men rape other men / only gay men get raped. (FALSE)

• Reinforces homophobic fears and prejudices.
• Creates the illusion of safety for straight men.
• Results in under-reporting of rapes on men.

• People of all sexual orientations get raped.
• Men who rape other men might be heterosexual - they may have a relationship with a woman.
• Rapists rape as part of their violence and need for power, dominance and control.
• Consider the overall context of an allegation when assessing someone’s freedom and capacity to choose, as well as, steps taken to obtain that consent and reasonable belief in consent.

See the CPS’s same-sex sexual violence toolkit for further advice.

Crown Court Compendium - Example 10

13. The victim provoked rape and implied consent simply by their dress / flirtatious behaviour. (FALSE)

• Stigmatises and blames the victim.
• Assumes that if someone draws attention to themselves, they are seeking sex, consenting to sex or ‘deserve to be raped’.
• Asserts that women cannot dress / behave how they want - that it’s for others rather than their own preferences.
• Attempts to remove responsibility from the rapist by taking away their agency - that they are so provoked by clothing or behaviour they cannot help themselves.

• Challenge any implication that the victim provoked rape or automatically consenting to sex by their dress or behaviour.
• Consent cannot be implied from the way a person dresses or flirtatious behaviour.
• Women can be raped regardless of what they are wearing - this is just an excuse.
• It would not be reasonable to believe that a person would consent to sex simply because of the way they are dressed.

Consider whether the use of Section 41 YJCEA 1999 ‘the sexual history of complainants’ might be helpful here. See legal guidance for further information: https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-10-sexual-history-complainants-section-41-yjcea

Crown Court Compendium - Example 8

14. If you send sexual images or messages prior to meeting someone, then having sex is inevitable. (FALSE)

• Attempts to excuse rape and blame the victim.
• Assumes that if someone sends a sexual image of themselves, they are seeking sex or ‘deserve to be raped’.
• Assumes sending of a message or messages automatically means physical sex is wanted any time, under any conditions.
• Assumes that someone cannot change their mind, even if they had initially been interested in sexual activity.

• Consent to sexual activity cannot be implied from flirtatious behaviour or from the sending of a sexual image or message.
• Challenge any implication that sexual images or messages equate to consent, explaining how normalised they are these days.
• Consider steps taken to obtain consent.

Section 41 YJCEA 1999 ‘the sexual history of complainants’ restricts scope for reference to certain evidence at court, including:

• sexual activity with the defendant or another;
• engaging in sexually-charged messaging on Facebook as in R v D [2011] EWCA Crim 2305;
• completion of sexual quizzes on the internet (R v Ben-Rajab and Baccar [2012] 1 Cr App R 4) where the Court of Appeal took the view that the expression is wide enough to embrace the activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection and included answering questions in a sexually explicit quiz.

See Section 41 legal guidance for further information:

Crown Court Compendium - Example 11

15. If you voluntarily attend someone’s house after a date or night out, you obviously want sex and constented to it by going there. (FALSE)

• Assumes that if a person goes to someone’s house after a date or night out, they are looking for sex or deserve to be raped.
• Assumes that rape is impulsive and unplanned.
• Assumes that someone cannot change their mind, even if they had initially been interested in sexual activity.

• Consent to sexual activity cannot be implied simply by the act of someone going back to a someone’s house.
• Each occasion is specific and consent needs to be given for each occasion, and can always be given under certain conditions or withdrawn entirely.
• Consent can be withdrawn at any time.
• Humans have to understand and negotiate consent regularly in their day to day lives.
• Many rapes are premeditated and planned.
• Consent is an ongoing act and can be subject to certain conditions.
• Challenge any implication that going back to someone’s house equates to consent.
• Consider steps taken to obtain consent.

Crown Court Compendium - Example 11

16. If you drink alcohol or use drugs then you have made yourself vulnerable to being raped and you bear the responsibility. (FALSE)

• Disregards the law on consent, including capacity to consent and reasonable belief that someone was consenting.
• Assumes that being under the influence of alcohol / drugs means that someone is looking for, or willing to have, sex.
• Assumes that if someone is looking for sex, they therefore consent to anything that happens or are deserving of anything that happens.

• Section 74 SOA 2003 - “For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”.
• Victims of rape are never responsible, wholly or in part, for their rape or sexual assault, regardless of whether they have drunk alcohol, taken drugs, are asleep or otherwise incapacitated.
• Consider carefully the role which alcohol or drugs might have on freedom and capacity to consent as well as steps taken to obtain consent and reasonable belief that someone was consenting.
• Some people drink alcohol and some people take drugs. This does not provide a justification or reason for someone to rape or be raped.
• Just because a person is drunk or has taken drugs does not mean that they must be looking for, or willing to have, sex. (from Crown Court Compendium)
• It would also be wrong to leap to the conclusion that someone else who sees and interacts with that person could reasonably believe that person would consent to sex. (from Crown Court Compendium)
• If someone is unable to give consent because they are drunk, drugged or unconscious, it is rape.

R v Bree (2007) held that drunken consent is still consent, but that capacity to consent may well evaporate well before a complainant becomes unconscious.

R v Hysa [2007] EWCA Crim 2056 Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine.

The jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether or not he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.

Tambedou [2014] EWCA Crim 954: The complainant’s evidence that she could not remember on account of voluntary intoxication was not sufficient for the judge to remove the case from the jury.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Victims who have potentially committed drug offences’ .

Crown Court Compendium - Example 9

17. If you meet men online or through hook-up apps you are consenting to sex and should be ready to offer sex. (FALSE)

• Assumes that if someone goes on dating / hook-up apps or websites then they are looking for sex or deserve to be raped.

• Online dating, apps etc., are increasingly being used to meet people.
• Consent to sexual activity cannot be implied from the method of meeting.
• Consent can be withdrawn at any time
• Consensual sexual interaction online does not automatically imply consent to offline sexual interaction
• Challenge any implication that online dating / apps etc., equate to consent

Consider use of Section 41 YJCEA 1999 ‘the sexual history of complainants’. See legal guidance: In Harrison [2006] EWCA Crim 1543 the trial judge concluded that questioning about the complainant having sex with a third party three hours prior to the rape was irrelevant to issue of consent and the evidence was thus prohibited by Section 41 YJCEA 1999

18. If you have lots of sex, including with different people, then you are promiscuous and ‘deserve what you get’ and are not harmed by rape. (FALSE)

19. If someone has truly been raped then they would never seek, or want, sex soon afterwards. (FALSE)

• Assumes that if someone has multiple partners then they are looking for sex with anyone, deserve to be raped, or are less impacted by rape.
• Assumes that victims of rape behave in a certain way.

• Rape can have a lasting and devastating impact on victims irrespective of their sexual history.
• Challenge any implication that having sex with multiple partners negates someone’s right to consent.
• Challenge any implication that having sex after being raped negates someone’s right to consent.
• Challenge any assumption that all victims behave the same way either prior to or following rape, and make clear that trauma affects individuals in a huge range of ways, sometimes causing victims to behave in counter-intuitive ways.
• Sex is not confined to people who are married / co-habiting / in long term relationships etc.,
• People have a right to have consensual sex with however many people and whenever they like.
• Consent cannot be implied by the number of people someone has slept with prior to, or after, an incident.
• Just because someone has consented to sexual intercourse on one occasion it does not provide grounds for reasonably believing that they consented to sexual intercourse on other occasions - either with the same or different people. Each occasion is specific and consent needs to be given for each occasion, and can always be given under certain conditions or withdrawn entirely.

Section 41 YJCEA 1999 ‘the sexual history of complainants’ restricts scope for reference to such evidence at court. See legal guidance for further information:

In Harrison [2006] EWCA Crim 1543 the trial judge concluded that questioning about the complainant having sex with a third party three hours prior to the rape was irrelevant to issue of consent and the evidence was thus prohibited by Section 41 YJCEA 1999.

In R v S [2010] EWCA Crim 1579 the trial judge did not permit cross examination about a previous act of sexual intercourse said to have taken place between the parties a few days prior to an incident of a violent rape committed upon a wife by her husband.

If relevant. See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Sexual abuse within a domestic setting and Teenagers in abusive relationships.’

Crown Court Compendium - Example 10

20. You can tell if someone has 'really' been raped by how they act afterwards. (FALSE)

21. Real rape victims are always visibly distressed when describing what happened to them. (FALSE)

22. A real rape victim would never freeze when attacked, they would fight back. (FALSE)

23. A real victim of rape would never be able to carry on with their normal life – go to work, take children to school etc.

24. If the victim didn't scream, fight, or get injured then it could not have been rape. (FALSE)

• Disbelieves and re-traumatises the victim.
• Invalidates the victim’s experience and individuality.
• Assumes all victims behave in the same way/in a pre-determined way, during or following rape.
• Discourages the victim from seeking help.

• Reactions to rape are highly varied and individual.
• Victims in a rape situations often become physically paralysed with terror or shock and are unable to move, resist or fight.
• Many women experience a form of shock during or after a rape that leaves them emotionally numb or flat - and apparently calm.
• Rape doesn't always leave visible signs on the body or the genitals.
• Consider the overall context of an allegation including addressing any seemingly counter-intuitive behaviour displayed by the victim.
• Focus on steps to obtain consent and reasonable belief.
• Carefully assess appropriate digital material - considering highlighting relevant evidence which supports the allegations and countering relevant evidence which points away from the allegation.
• Victims in rape situations are often legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives.
• Rapists use many manipulative techniques to intimidate and coerce their victims.
• When under threat, the brain will implement instinctual survival response that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain would choose based on basic instincts: not just fight or flight, but flop, freeze or to befriend the attacker.

Malone [1998] 2 Cr App R 447. No requirement that absence of consent has to be demonstrated or communicated to the accused.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Pre-existing mental ill health and potential psychological reactions to sexual abuse’.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium - Example 3

Crown Court Compendium - Example 6

Crown Court Compendium - Example 7

Crown Court Compendium - Example 12

25. If the victim didn’t complain to the police immediately it can't have been rape. (FALSE)

• Disbelieves and re-traumatises the victim.
• Discourages him or her from seeking help.
• Assumes all victims behave in a uniform, pre-determined way.
• Ignores known trauma responses.

• Consider the overall context of an allegation when including reasons behind a delay.
• Most victims of rape do not report the attack to the police. Some may tell a friend, GP or other individual. Many others will not tell anyone perhaps owing to feelings of shame, guilt and fear of the perpetrator and/or fear of being disbelieved.
• A delayed allegation is not equivalent to a false allegation.
• The time taken to make an allegation is not indicative of the level of upset.
• The trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint.
• The process of reporting rape itself can be traumatic, as well as prosecution process, and can deter victims from reporting the rape.
• When under threat, the brain will implement instinctual survival response that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain would choose based on basic instincts: not just fight or flight, but flop, freeze or friend.

R v Doody [2008]: The defendant appealed against convictions for rape and sexual assault, criticising the judge’s comments to the jury about the credibility of a rape complainant delaying making a complaint. The prosecution said that the judge’s comments were justified.
Held: The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning, but any such comment must be uncontroversial. If not, the court must hear evidence. In this case the judge had overstepped the mark, but on the facts the convictions were not unsafe.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Pre-existing mental ill health and potential psychological reactions to sexual abuse’.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium - Example 2

26. If you don’t say ‘no’, it’s not rape. (FALSE)

• Disregards elements of power, aggression, violence, control and humiliation in rape.
• Goes against the legal definition of consent.

• Section 74 SOA 2003 - “For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice”.
• Challenge any implication that absence of consent has to be demonstrated - consent must be actively given.
• Experience has shown that different people respond to unwanted sexually activity in different ways.
• Victims in rape situations can be legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives.
• Consent and submission are different.
• Rapists use many manipulative techniques to intimidate and coerce their victims.
• Victims in rape situations often become physically paralysed with terror or shock and are unable to move or fight.
• When under threat, the brain will implement instinctual survival response that the victim will not necessarily have any control over. The response may not appear logical to others, or even the victim, but in the moment the brain would choose based on basic instincts: not just fight or flight, but flop, freeze or friend.
• Was there any evidence of coercion or control?

Malone [1998] 2 Cr App R 447. No requirement that absence of consent has to be demonstrated or communicated to the accused.

R v Olugboja (1982) held that the jury should be directed that consent, or the absence of it, is to be given its ordinary everyday meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves submission, but it by no means follows that a mere submission involves consent.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Pre-existing mental ill health and potential psychological reactions to sexual abuse’

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium - Example 12

27. Only young/ attractive people get raped. (FALSE)

28. Strong / independent / powerful / older people don’t get raped. (FALSE)

• Assumes that only young or 'attractive' people are raped.
• Disregards elements of power, aggression, violence, control and humiliation in rape.

• There is no typical victim of rape. People of all ages, appearance, status and backgrounds can be raped.
• Challenge any assertion that typifies who rapes and who is subjected to rape.

Andreous [2014] EWCA Crim 1578. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.

Crown Court Compendium - Example 1

29. The victim’s race / religion / background is responsible for the rape. (FALSE)

Condones rape due for racial / religious / cultural reasons.

Creates further barriers to accessing support and justice.

Can deploy racial and religious prejudices and stereotypes to blame the victim and disregard the facts of the case.

• There is no typical victim of rape.
• People of all races and religious backgrounds can be raped.
• Challenge any racial or religious stereotypes and focus on the facts of the allegation.
• Identify and challenge any racial or religious justification for rape with reference to the law.
• Racial and religious stereotypes may play out in rape cases in a number of ways. For example:
  • ‘South East Asian women are more submissive and docile’
  • ‘African or black people are more aggressive or have “unconstrained” libido.’
  • ‘Middle Eastern/Arab/Muslim women are oppressed’
  • ‘White girls are more sexually promiscuous’
  • Latina/South American women can be fetishised for their ethnic identity/sexuality.

Andreous [2014] EWCA Crim 1578. Dentist on trial for a sexual offence: the Court of Appeal approved a direction given to the jury that they should proceed on the basis that an individual is not more or less likely to have committed an offence because of his culture, age, class or profession.

There are circumstances where a jury will require assistance with the distinction between reluctant but free exercise of choice, especially, but not exclusively, in the context of a long-term loving relationship, and unwilling submission due to fear of worse circumstances. A direction along the lines of Pill J approved in Mohammed Zafar Unreported, June 18, 1993 - ‘C may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.’

CA & Watson [2015] EWCA Crim 559:  Context is critical. Submission to a demand that a complainant feels unable to resist may in certain circumstances be consistent with reluctant acquiescence.

See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Minoritised Ethnic Communities’.

Crown Court Compendium - Example 1

30. A real victim would always be able to provide a clear and coherent account of being raped. (FALSE)

31. Inconsistencies in accounts provided by a victim always means they lack credibility as a witness. (FALSE) 

32. Where a victim has consumed alcohol or drugs prior to an incident s/he will always be an unreliable witness as their evidence won’t be accurate. (FALSE)

• Reinforces stereotypes of women as untruthful.
• Disregards the impact that trauma has on memory.
• Assumes that human beings have perfect memory recall.
• Discourages him or her from seeking help.
• Intoxicated victims are inherently unreliable witnesses.
• Disbelieves and re-traumatises the victim.
• Discourages victims from seeking help.

• Rape can be very traumatic and memory can be affected in a number of ways.
• Understanding the effects of fear and the psychological mechanisms that may occur during a sexual assault is vital when considering recall and memory.
• Some, understandably, may try to avoid thinking about being raped or try to avoid recalling it all - this can impact upon recall.
• Research conducted by Dr Heather Flowe and others has shown intoxication to impact upon the level of detail that can be recalled by the witness rather than on the accuracy of memory. It is therefore essential that in making casework decisions, prosecutors do not assume that a witness who was intoxicated at the time of the sexual assault is less reliable than a witness who was sober.
• Reasons behind any inconsistencies should be addressed as part of an overall case strategy.

See section in this legal guidance on ‘Understanding vulnerabilities: Pre-existing mental ill health and potential psychological reactions to sexual abuse’. [LINK]

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

Crown Court Compendium - Example 4

33. False allegations are common and women¹ always cry rape when they regret having sex or want to seek revenge. (FALSE)

34. Other complaints of rape which have not resulted in successful prosecution outcomes always mean the victim lacks all credibility as a witness. (FALSE)

• Reinforces stereotypes of the 'vindictive woman'.
• Reinforces stereotypes of women as untruthful.
• Re-victimises and stigmatises the victim.
• Undermines her support for seeking justice / access to courts.

• A decision to stop a case on evidential grounds does not mean that an allegation is false. It means that the case does not meet the evidential standard required to put an allegation before a jury under the Code for Crown Prosecutors.
• When a jury returns a not guilty verdict it means that they were not satisfied ‘beyond reasonable doubt’ that the offence was committed.
• Avoid an either/or argument that allows a complainant’s evidence to be wholly dismissed because of a peripheral inconsistency. Don’t pit it as either you believe the defendant OR you believe the complainant for this reason.

R v All-Hilly [2014] 2 Cr App R 33: The fact the complainant had made but did not pursue previous allegations did not provide a sound basis for suggesting they were false so evidence was excluded.

In most cases where the defence want to ask a complainant about an alleged false allegation, in addition to seeking a ruling that section 41 YJCEA 1999 does not apply, the defence will be required to make a ‘bad character’ application under Section 100 of the Criminal Justice Act 2003

Section 41 YJCEA 1999 ‘the sexual history of complainants’; legal guidance: 

See legal guidance on charging perverting the course of justice on allegedly false rape and/or domestic abuse allegations.

Crown Court Compendium - Example 4

35. Previous withdrawals of complaints, or previous reluctance to co-operate with a prosecution, always means the victim lacks credibility as a witness. (FALSE)

36. Where the victim has previous convictions s/he always lacks credibility as a witness as a result. (FALSE)

37. The victim has previousl convictions or had told untruths about other matters and so can never be relied upon to tell the truth about rape. (FALSE)

• Reinforces stereotypes of the 'vindictive woman'.
• Reinforces stereotypes of women as untruthful.
• Re-victimises and stigmatises the victim.
• Undermines her support for seeking justice.

• Victims can face very difficult decisions when deciding to report rape and supporting a prosecution. Some may decide not to report, or withdraw support for an investigation or prosecution for a number of reasons including intimidation by the accused.
• Victims come from all walks of life. Previous convictions or untruths do not automatically impact on the credibility of allegation - it is important to consider relevance and applicability.
• ·Perpetrators often deliberately target individuals who are less likely to be believed.
• Only issues of relevance should be considered when dealing with specific allegations.
• Where relevant, consider context of any previous convictions. For examples, are they a result of previous victimisation (eg child sexual abuse) or do they indicate a form of vulnerability.

R v All-Hilly [2014] 2 Cr App R 33 found that the fact the complainant had made but did not pursue previous allegations did not provide a sound basis for suggesting they were false.

Section 41 YJCEA 1999 ‘the sexual history of complainants’ See legal guidance for further information: 

Consider bad character provisions as per Section 100 of the Criminal Justice Act 2003. 

38. Where the victim has a learning disability or mental health condition s/he always lacks credibility as a witness. (FALSE)

• Disbelieves and re-traumatises the victim.
• Disregards elements of power, aggression, violence, control and humiliation in rape.

• Ability or disability can be impaired by trauma. A person with a disability can become more symptomatic after trauma or during recall of trauma.
• Perpetrators often deliberately target individuals that are vulnerable due to mental or physical health disabilities.
• Because disclosure of medical records will engage the Article 8 right to privacy of the victim it is crucial that the police obtain the victim’s informed consent to:
  • a) gain access to the records; and
  • b) enable disclosure, where appropriate, to take place.
• Prosecutors must satisfy themselves that consent to disclose the medical records has been obtained by the police from the person to whom the notes refer before any disclosure of material takes place.
• When obtaining consent, the victim should be informed by the police why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.
• Sexual Offences Act 2003: Sections 30 - 41 protect persons with a mental disorder who are vulnerable to sexual exploitation and creates three categories of offence:
• Sections 30 - 33 Offences against a persons with a mental disorder impeding choice
• Sections 34 - 37 offences where there are inducements etc. to a person with a mental disorder
• Section 38 - 41 Offences by care workers against persons with a mental disorder

R v Alibhai, [2004] EWCA Crim 681. The Court of Appeal held that before taking steps to obtain material held by third parties, it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test. The case goes on to say that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.

Branney v HM Advocate [2014] HCJAC 78. A Scottish case where court stated “we are unaware of any automatic association between depression and lack of credibility”

For further information refer to guidance on disclosure: 

‘See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Disability issues and : Pre-existing mental ill health and potential psychological reactions to sexual abuse’.

Further information on trauma can be found in the CPS’s Psychological Evidence Toolkit and training video on trauma.

39. If someone displayed signs of sexual arousal during abuse, the only conclusion is that they wanted and/or enjoyed it (FALSE)

• Disbelieves the victim.
• Disregards how bodies and brains can work.

• Victims themselves might believe this myth and can feel a huge amount of shame and guilt.
• People can respond to any stimulation - even those which are non-consensual / traumatic / painful.
• Focus on the definition around consent; ensure that this is dealt with proactively and sensitively with the victim; and ensure a rounded assessment of the case including careful consideration of the actions and behaviour of the accused / suspect.

40. Gay men who attend sex parties and/or take drugs are asking to be raped. (FALSE)

• Assumes gay men are promiscuous and are attracted to all men.
• Assumes that sex is not romantically significant to gay men - it is all something they regularly engage in on a casual basis.
• Assumes gay men do not have long-term loving relationships - for gay men it is all about sex.
• Assumes gay men always have penetrative sex.
• Assumes men cannot be victims of sexual offences.
• Assumes men who have sex with men are gay.
• Denies any incidence of coercive control ie if man was coerced to attend/participate.

• Challenge any homophobic implications and focus on the facts of the allegation.
• ·Forming assumptions about gay men’s propensities to have multiple relationships or their sexual preferences is homophobic.
• ·Gay men can face multiple barriers to seeking support and accessing justice.
• ·Not just gay men attend chem sex parties (i.e. bisexual men, or ‘men who have sex with men’ who wouldn’t define themselves as gay or bi.
• A gay man may well be promiscuous and be in a loving relationship.
• Gay men have the same right as everyone to remove consent at any time.
• There will be nuance in each situation that needs to be explored, including any power and control elements to attending a sex party - was there any underlying coercion.

‘See section in this legal guidance: ‘Chapter 5: Issues relevant to particular groups of people: Same-sex sexual violence and Victims who have potentially committed drug offences’.

See the CPS’s Same-Sex Violence Toolkit.

Crown Court Compendium - Example 14