The burden of proof in rape cases

I had an interesting discussion - well, more of a row, really - with my girlfriend yesterday following last night's episode of Silk on BBC 1. This featured a rape case in which - as is usually the case - the conviction or not of the defendant came down purely to the question of who the jury believes. In this instance, the defendant was acquitted, although the programme provided additional information to the audience compared with what was available to the jury so as to suggest that a guilty verdict would have been more reasonable.

The argument with my girlfriend was sparked off by my observing that, as far as I am aware, the guidance that is now given to boys in English schools is that they have to obtain definite, positive consent to sex in order to be sure that they are not committing a rape, rather than just the absence of a 'no'. In other words, it's no longer an excuse to assume that, if the woman does not say no, she is giving her consent: she has to provide a clear and unambiguous 'yes'. I then went on to say to my girlfriend that, in the rape case on the TV drama, this had not been reflected in the interrogations in court of the victim and defendant: the victim confirmed she had not said 'no', but this was allowed to be construed as a potential 'yes'; whereas if the man had been under an obligation to obtain a positive 'yes' (not just the absence of a 'no'), then the incident in question would much more likely have been interpreted as a rape. In other words, if a man does not obtain unambiguous consent, then consent should not be assumed, either by the man or by a court. I observed that the trial in the drama did not seem to reflect this shifting of the burden of proof in favour of the woman.

The row that ensued owed more to my girlfriend's own personal experiences than to the merits or otherwise of the technical point I was making, and my girlfriend argued that distinctions of the kind I was making changed nothing about the basic dilemma that it still comes down to who the jury believes. This is true. But it's equally true that the change in emphasis to which I was referring is not insignificant: while it doesn't affect the fact that rape cases hinge on who the jury believes, it does affect what they are required to believe; i.e. whether explicit verbal consent is given or not, rather than just implicit, tacit consent.

This distinction can be brought to bear on one of the drama's pivotal moments, where the council for the defence (a woman who has strong reservations, to say the least, about the merits of her own case) asks the defendant to look her, the jury and the victim in the eye and state that he didn't commit a rape. With the change in emphasis from tacit to explicit consent, the prosecution would have been able to ask the defendant not whether he had committed rape but whether at the time he was absolutely sure that he wasn't committing rape. Any hesitation or uncertainty on the defendant's part could then have been construed as implying that the defendant wasn't completely sure. In other words, even if, in his own mind, what he was doing didn't constitute rape, if there was any doubt about the consent of the woman at the time of the incident, then this is tantamount to rape: having sex without obtaining the explicit consent of the woman.

Of course, it is always possible that a man can have sex with a woman without being completely sure he has obtained her consent, and that the woman is in fact consenting but subsequently decides to accuse the man of rape. This is not a rape but the man is on one level just as 'guilty' as if it were: whether the woman was actually willing or not, the man did not fulfil his moral or legal obligation to obtain explicit consent.

If this principle were reflected in law, and not just in English school class rooms, then women would in fact be much more likely to be given the benefit of the doubt by juries; and it would make it easier to obtain convictions in rape cases.

However, if this principle were indeed incorporated into English law, would it mean that, in every single instance, consent could not be assumed and would have to be explicitly requested, thereby destroying the magic of intimate moments between loving couples slipping wordlessly into passionate love making, to say nothing of eroding the bonds of absolute trust that should exist between, say, a husband and wife?

And is a man making love to a woman without being 100% sure he has obtained consent - but where that consent is both apparent and actual - really effectively guilty of rape?