A barrister has provoked a storm of outrage for daring to suggest that sex whilst under the influence of alcohol should not automatically be considered rape. David Osborne, a Somerset-based barrister, made the comments in a personal blog criticising new guidelines stating that men accused of rape will now have to prove that consent was given, reversing the fundamental tenet of English law that citizens are innocent until proven guilty.
The new guidelines were announced last month by Alison Saunders, the Director of Public Prosecutions. The Crown Prosecution Service said that the time had come to move beyond “no means no”, towards identifying situations in which the woman was unable to give consent – including situations in which the woman was drunk.
Mrs Saunders indicated that from now on, she wants police to ask the accused how they knew a woman was not only agreeing to sex, but was doing so “freely and knowingly”.
“For too long society has blamed rape victims for confusing the issue of consent – by drinking or dressing provocatively for example. But it is not they who are confused, it is society itself and we must challenge that. Consent to sexual activity is not a grey area – in law it is clearly defined and must be given fully and freely.
“It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex through drink.It is now well established that many rape victims freeze rather than fight as a protective and coping mechanism,” she said.
Mr Osborne not only disagreed, but voiced his concern over what this would mean for the integrity of justice in rape trials.
“Rape trials from now on are no longer to be prosecution led, but conviction led, and when you add into the mix that prison sentences for rape are getting longer and longer, the opportunities for a serious miscarriage of justice are self-evident,” he wrote.
The blog adopts a provocative stance – it’s titled “She Was Gagging For It” – but is insistent that the question of whether the prosecution can prove that consent was not given is the only proper one to be asked in a court of law.
“My considerable experience tells me that there are basically two defences to an allegation of rape: “it wasn’t me, guv”, or “she was gagging for it”,” writes Saunders. “It is also correct in my own experience that most of those accused of rape are acquitted, not simply as a result of the brilliance of my advocacy, but because the jury did not believe beyond a reasonable doubt that the victim did not consent, and that, at the end of the day, is the proper and only test to be applied.”
“I have always found it distasteful and unattractive the suggestion that as the victim was blind drunk she was therefore unable to give her consent to sex, or more to the point, she gave her consent which she would not have given had she been sober. In my book, consent is consent, blind drunk or otherwise, and regret after the event cannot make it rape.”
Mr Saunders later amended his blog post to clarify: “It is also right to add that the converse is true, namely that if a woman does not consent, blind drunk or otherwise, it would be rape if sexual intercourse takes place. That is what the offence of rape is all about.”
Predictably, his comments unleashed a firestorm of criticism by women’s rights groups. Sarah Green, director of End Violence Against Women Coalition, said: “I find it hard to believe this is not some kind of sick joke or a parody. It is ridiculous. He is suggesting the opposite of the law. The justice system exists to punish and deter perpetrators. The guy is a barrister and there’s no way he doesn’t know all this.”
And Women Centre national lead Clare Jones, told the Mirror: “It’s appalling.
“We are deeply shocked that even today, in 2015, someone can seriously suggest that the violent crime of rape could be provided with a complete defence if a woman was under the influence of alcohol or drugs at the time.
“Is Mr Osborne suggesting that women need to be teetotal in public places in order to protect themselves? I think most people would agree that women have the right to live their lives free from the fear of attack, rape and violence both inside and outside of the home.”
Mr Osborne, however, was unapologetic, telling the Mirror “You’ve seen the news sequences of girls who, regardless of the weather, have their backsides sticking out of their dresses and their tits hanging out of the same dress. Wandering around the streets, staggering around and then wondering at the end of all that why somebody has, if you like, taken advantage of them.
“And so in those circumstances I don’t see for the life of me why the law should now be slanted – as I perceive it with Alison Saunders – towards the victim and therefore against the accused.
“The whole thing is over slanted in favour of drunken victims and against lads who chance their arm. I don’t call them victims. I said that these are complainants.”
Mr Osborne, 71, has defended dozens of men accused of rape over his 40 year career. Drawing on this experience, he continued “A defendant should be able to say to a jury: ‘Well yes she was drunk, she had a lot to drink, she said yes and we went ahead.’ I cannot see for the life of me why a jury should be directed that that is not a defence.
“The last rape trial I did we had much the same defence and much the same set of circumstances. They were at a party. She was drunk. He invited her out. They went round the back. It was all rather unromantic but these things tend to be rather unromantic I’m afraid.
“He invited her round the back of a bicycle shed, had his way with her and she didn’t enjoy it so she cried rape. She was saying ‘I didn’t consent’ and I said ‘well what did you say to him that suggested to him that you weren’t consenting’. And she replied ‘nothing’.”
The new guidelines have also drawn criticism from female journalists who are equally concerned for the integrity of the law. Sarah Vine took to the Daily Mail to write “It used to be that women who made stupid mistakes with men, who had non-violent sexual encounters in dodgy circumstances — while drunk or otherwise intoxicated, in the heat of the moment or for a million other reasons — did not wake up the next morning and decide they had been raped.
“They took a shower, gave themselves a stern talking to, maybe told a friend about it, had a bit of a cry — and then moved on as best they could, vowing along the way never to end up in that kind of damn stupid situation again.
“Now, in our modern it’s-anybody’s-fault-but-mine culture, there’s a far easier option. Blame the bloke. … Even as you urged him on — yes, yes, yes! — you still meant no, didn’t you?”
And writing for Breitbart London, Julia Hartley Brewer said “I’m sure there is a good motivation behind this… But this new move does the exact opposite of empowering women. Instead it infantilises them, and renders them incapable of taking responsibility for their own actions.
“Under these new rules, without a legal consent form being signed in front of witnesses (unlikely in most circumstance, I think we can all agree) a drunk man will be held 100% responsible for anything he does during any sexual encounter with a woman. From the first kiss to the zipping up of his trousers, he is culpable for all of his actions – and hers too.”