It was only a matter of time before the law of rape was turned upside down. On Thursday The Daily Telegraph headline proclaimed, “Men must prove a woman said, “Yes” under tough new rape rules.”

This would be quite a change – throwing centuries of common law on the pyre in reversing the burden of proof that “no matter what the charge or where the trial the principle that the Crown must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.  This is the one golden thread that runs through English criminal law.

So for Alison Saunders, the Director of Public Prosecutions, unilaterally to change this would be a breach of her powers, to say the least.

However no such change is proposed – merely a subtle ‘rebalancing’ at investigation stage. Prosecutors and police officers are now to ask the defendant, ‘How did the suspect know the complainant was saying yes and doing so freely and knowingly’.

I doubt this is going to take them very far should the defendant – as is his right – refuse to respond. Any person accused of a crime is entitled to remain silent and answer no questions whatsoever to the police. Surely, this is not lost on Ms Saunders.

However, on close examination what Ms Saunders is proposing is quite Victorian. Men are once again, guardians of female virtue and it is they who must make sure the consent given is ‘free and knowing’. If the woman is too drunk to consent or seems to drunk to consent, it is the man who must exercise his better judgment and desist from any further ‘relations’. It is something straight out of a Jane Austen novel.

As a social conservative this return to the Victorian regime does not really bother me. Nor does it surprise me. The cold black and white of the law is unable to deal with the many cases of “date rape” driven by alcohol currently swamping the criminal justice system.

As a lawyer, however, I do have a problem with it. This change means there will be a different test at investigation stage to that administered by the jury at trial. At investigation stage, the defendant is asked how he knew the woman consented, implying the burden is on him to prove his innocence. But at trial, the jury will be directed that it is the Crown that must make them sure that the defendant did not reasonably believe there was consent. The defendant does not have to prove anything.

This gulf can only end in tears. It could result in allegations of rape being charged and brought to trial where there is no realistic prospect of conviction (the test that the DPP must apply). As such, victims of rape are being set up to give evidence in weak cases and will face challenging cross-examination from the defendant, as is his right. Should this happen Ms Saunders only has herself to blame.

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