Consent, reporting and all things legal
- Brittany-Leigh Coffey
- Dec 22, 2020
- 7 min read
Please be aware the following is not intended as legal advice.
Introduction
This blog post aims to explain what consent is and give a little detail regarding the reporting procedure. A simple metaphor for consent is using the ‘Cup of Tea’ analogy, which is simply put, if you were to offer somebody tea, and they said no, you would not force this upon them. There is a video link in the latter part of this blog that explains this metaphor further. The most important idea this blog tries to denote is that consent must be free and enthusiastic for it to be valid. All experiences are valid, and it does not have to mirror somebody else’s for it to be true. Our campaign, Beyond Sexual Assault, tries to highlight the damage of victim blaming and destroy myths that have arisen from it.
Consent and defining sexual harassment
People are often confused to what consent looks like, or how it should be defined. Misconceptions and myths have arisen from victim blaming which frequently leads to doubt in the mind of the survivor to whether they were in fact assaulted. To minimise it entirely, it falls down to whether there was enthusiastic consent, without any form of coercion. The consent must be at the time; you cannot give consent for the future and consent can be withdrawn at any time. Different jurisdictions will have some differences in how assault is explained or defined, so for the purposes of this blog, I will explain the World Health Organisation’s definition initially. In the latter part of the blog, I will overview the UK’s explanation of consent too.
In the World Health Organisation’s document, examples of sexual violence are given, however, it should be noted it is not limited to the acts mentioned explicitly. Unwanted advancements or harassment, slavery with the intent of sexual violence and forced impregnation are just a few examples of what falls under this definition. The definition is not limited to a minimum criterion and the acts can be judged subjectively (case by case- there is not one set rule that clearly applies to all). It is important to be aware that sexual violence/ assault does not have to look in a certain way or be a certain level of ‘bad’ for it to be considered as assault.
Consent needs to be real and factual; this falls to the state of mind of the victim. If a person has been coerced (pressured/threatened in anyway) the consent is invalid. Coercion can be by varying degrees of force, by use of threats, psychological intimidation, or blackmail. If a person is ‘convinced’ to consent to something, this is not real consent as there has been a form of pressure which resulted in the appearance of consent. Moreover, consent cannot be given in the following circumstances- if a person is intoxicated, drugged, asleep or mentally incapacitated (this means the ability to consent is impaired by perhaps a mental disability). The World Health Organisation’s definition is quite broad, across different demographics there are narrower definitions, however, the broad definition allows a range of offences to be encompassed within it.
Who the perpetrator can be is also broad, it is not limited to them being a stranger to the victim.
It is important to note that assault can be a partner, a family member, another adult, a work colleague etc. A person cannot be excluded from being a perpetrator based upon the nature of the relationship with the victim.
Moving onto looking at the law within the UK, perhaps the two most important pieces of legislation to consider are the Sexual Offences Acts of 1956 and 2003. It is important to note, that within the Sexual Offences Act 1956 there is no statutory definition of consent, and juries are advised to use the ordinary meaning of the word when evaluating whether consent was given, however, they are advised that consent and submission are not of the same meaning. Quite similarly to the World Health’s explanation of lack of consent, it is noted that there is an absence if there was a use of threats or force, and evidence that there was intoxication by drugs or alcohol, the victim being asleep and mental disability (unaware of what was occurring and/ or incapable of giving valid consent). The Sexual Offences Act does give additional exemptions such as considering the age, and deception of identity by the perpetrator.
The Sexual Offences Act 2003 does give some examples where the lack of consent does not need to be demonstrated, but to delve into these may complicate the matter. This later act did provide a definition of consent, this being, that a person must have agreed to (an act) by choice and has the freedom and capacity to make that choice. In the UK, the law is developed by case precedent (the outcomes of previous cases) meaning that in terms of statutory legislation, the law may appear to lack substance, however, this is as judges are bound (must) follow the principles set out in other prior similar cases.
The umbrella of offences can vary in their degree, so it must be noted that just because an act was not the ‘worse’ thing that could have happened in your mind, it does not mean it ‘does not count’. If you felt pressured, too intoxicated, or were sleeping for example, it is not possible to give consent. There is no ‘magic’ word which demonstrates consent, or a certain body language that needs to be displayed, if you are unsure on whether someone is enthusiastically consenting, this means no.
A video demonstration that easily explains consent is the ‘Cup of Tea’ metaphor which can be found using this link- https://www.youtube.com/watch?v=pZwvrxVavnQ.
Reporting
Before continuing to read this section, please remember that there is no right or wrong way to respond to assault, you do not have to report it if you are not comfortable doing so. Each and every person will react in a different way to trauma, and all reactions are real and valid. Just because you may not have chosen to report an assault, that does not mean it was invalid.
Reporting to the police can be quite a daunting experience, especially if you do not know what to expect. Admittedly, when I reported what happened to me, even though I had studied criminal law, I was still quite in the dark regarding the actual procedure of reporting an assault and what happens once you have reported a crime. I think the first thing to point out is that you do not have to have plentiful knowledge of the procedure, somebody will guide you through each step and you are free to withdraw you statement at any given point. The procedure can be quite long and exhausting, and for some people this is too much of a mental drain (which is completely okay!)
For any crime to be convicted, evidence is required. With a crime of this nature, it can be difficult as the issue is more providing a lack of consent rather than something physical (this sounds confusing I know- let me explain). With theft, for example, you have to prove there was an item that was stolen by another person, however, here the crime is of a different sort. If you can prove the physical act (by way of DNA for example), the two people may agree there was contact, but dispute whether there was consent. Consent is a difficult thing to either prove or disprove, and unfortunately, the UK’s system is one of which the supposed perpetrator is innocent until proven guilty. This means that, unless there is a situation where consent does not need to be demonstrated, the issue is word on word.
To collect evidence, DNA samples may be taken these may be swaps of you, any strands of hair on you, under your fingernails etc. If you are uncomfortable with any of the evidence samples, you are by no means bound to give these. You can ask for the samples to be stopped at any time, you can take a break and you can ask to leave. When gathering the series of events leading up to the assault, you may be asked on several separate occasions to explain what has happened. You will be given the opportunity to give a statement and you may be questioned (not as a suspect, but to gather more information) on the details you have provided. This can be quite a long and both physically and emotionally exhausting procedure.
It is difficult to explain the procedure without ‘putting you off’ reporting, so instead of delving into details I have compiled a list of rights for the victim, and things I wish I had known before reporting an assault to the police.
Rights to be aware of
You have the right to influence how your case is controlled, this should focus on your needs.
Offering referral to a SARC (Sexual Assault Referral Centre).
To be informed of the progress of your case.
Hear when a suspect is arrested, charged, bailed and sentenced.
Able to apply for additional support.
Apply for compensation.
Make a personal statement.
Information about restorative justice schemes.
Seek a review of a decision not to prosecute.
Things I wish I knew
You will most likely be asked questions that seem to blame you, i.e how drunk you were, what you were wearing.
The procedure can take a long time and it is difficult to get the result you would like.
You should keep the clothes to give to the police (where possible).
Do not shower if you are reporting the same day, this will ensure any DNA evidence is retained.
You are not alone, there are sadly so many people in a similar position.
Practice self-care and healing; this is something that can be really quite scarring so do what you need to do to heal.
It is normal to have patches of ‘blurry-ness’ or lack of memory, it does not mean you have made it up, trauma can impact your retention of events.
It is okay to feel confused, or lost, or numb. There is no right or wrong way to feel, trauma impacts everybody differently.
There are several ways you can report an assault, this does not necessarily have to be to the police, but for example to a university. If you are looking to report an assault, this can be to the following places (UK):
999/101.
Visiting a police station.
Crimestoppers (Either via the website or 0800 555 111).
The Havens (London).
Equality and Human Rights Commission (Harassment)- Freephone 0808 800 0082.
NHS Helpline- 111.
Victim support- victimsupport.org.uk
To your university or college.
Conclusion
Please know that it is never the victims fault, just because of your relationship with the perpetrator, or previous sexual activity, or you not fighting and screaming, that does not mean you consented. Consent can be demonstrated verbally or through body language, do not pressure someone into something they are not sure of. Consent needs to be informed, free and with the correct mental capacity.
You are not alone, and never will be.
Useful links with further information.
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