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More than just a hangover

We have noticed an increase in cases where a high-spirited student night out has resulted in an allegation of rape, with drink and issues of consent often in play. This article offers some practical advice if you find yourself on the wrong end of an untruthful allegation of rape or sexual assault.


As if it isn’t difficult enough to navigate your way through the politically correct minefield that life at university now treads, there are greater concerns that any student daring enough to mix business with pleasure, should bear in mind.


Gone are the days of an embarrassing “one-night stand” which, at worst, might result in an awkward social situation for a few days. In today’s culture, some people prefer to blame others for their own personal mistakes, regret or embarrassment. This is facilitated all too eagerly by the prosecuting authorities.


In the one-night stand scenario, false allegations might be made for any number of reasons: a complainant might have become so intoxicated that they suffer a genuine episode of anterograde amnesia (which means they have little to no recollection of what actually occurred and whether or not they had given consent to it); an allegation could equally be made out of sheer spite if, say, one party had hoped for more than a fleeting liaison; an accusation could also be made out of guilt or regret where the accuser is already in a relationship. The list of reasons is long but in each of these scenarios, the complainant knows that it might be easier to cry rape than to take responsibility for his or her own actions and face the consequences and embarrassing repercussions.


Police investigation into this type of allegation can be a traumatic and bewildering experience for the accused. Authorities keen to secure a prosecution do not always investigate thoroughly or fairly.


So, what should you do if you are accused of a sexual offence following what you understood to be a consensual liaison? This answer to this firstly depends on who is undertaking the investigation.


Investigation by a university or college


If the allegation has been reported to your place of learning, there will be a standard procedure which your university or college must follow. Protocol between universities can vary but you should expect to be invited to a formal interview by an establishment official. In most cases, you will be allowed to be accompanied by a friend or relative but not a lawyer.


Your invitation to a formal interview may/may not indicate what will be discussed at your meeting and you may have time to take advice from a solicitor. How should you deal with the interview? It is important to bear in mind that the allegation you are facing might end up in the criminal courts. This means anything that you say to the university should be consistent with the evidence you might have to give in any subsequent prosecution. With this in mind we often advise that a sensible way to proceed is to prepare a closely detailed statement which can be read out at the start of the interview – after which you can answer questions. The advantage of this approach is that you are providing your account in your own words rather than a composite account given in response to questions.


Further education establishments are not obliged to report allegations to the police if their assessment is that no crime has been committed. But of course, a complainant is entitled to report the matter to the police.



Investigation by the police


If an allegation about you has been made to the police, you can expect an entirely different procedure to the above.


You may be invited to attend a police station as a volunteer (which means that you are not under arrest), giving you the opportunity in advance to source your own solicitor (who may or may not be covered by legal aid) or you may be arrested at any hour and interviewed at a police station. Whether you attend as a volunteer or are arrested your interview will be under caution. This means anything that you say in your interview is admissible as evidence at trial were you to be prosecuted.


If you are arrested and brought to a police station to be interviewed it is unlikely that you will have the opportunity to choose your own solicitor, but you will be offered a duty solicitor free of charge. We would always recommend that you take advice and accept representation from a duty solicitor if you are unable to instruct your own. A good duty solicitor will ensure you are treated fairly by the police and offer important advice.


Whether you instruct your own solicitor or a duty solicitor, it is sensible to prepare a closely detailed statement of your account of the incident. Your statement should include, where consent is in issue, why you had good reason to believe that the complainant was consenting. This statement would be read out by your legal representative at the start of the interview (hopefully answering some of the questions that the police were planning to put to you). You may then answer the interviewer’s subsequent questions.


It is important that you co-operate with the police and answer questions if possible. This is your opportunity to give your version of events and which may avoid you being charged. A failure to answer police questions may count against you if you are prosecuted. However, it is important that you do not speculate or guess. If you do not know that answer to a police question just say so. Once your interview is concluded you will invariably be released from the police station. It might be months before you hear from the police again.


You should not make the mistake of thinking that because you have not committed the offence you will not be charged with it! If the CPS (the body to whom the police refers cases for prosecution) decides that you have a case to answer, then it is likely that you will be charged.


The issue of consent


A person’s understanding of consent in fundamental in situations where an allegation of sexual impropriety has been made. Consent may seem obvious; ‘yes’ means ‘yes’ and ‘no’ means ‘no’. In reality, it is not this straightforward. Our 2015 blog regarding the DPP interpretation of consent outlines the law; the accused must show that they had a ‘reasonable belief’ that the complainant consented. It is no longer enough to hold an honest belief in consent – the ‘reasonable’ element, adds an objective step to the previously existing test. You must now be able to explain why you had reason to believe you had been given consent, all things considered.


Alcohol often plays a major part in consent-related allegations. Having sex with a partner who is unconscious or asleep through drink vitiates consent, but not if they were awake and consenting at the time. Drunken consent is a valid defence; but it may be compromised if the person was barely conscious.


The position may be further complicated when an allegation is made by somebody who suffers an episode of anterograde amnesia. This is when people who have drunk large amounts of alcohol, and who are fully conscious at the time of consent, later forget what they were doing and what they were consenting to.


Do not place yourself in harm’s way. In practical terms, do not have relations with a partner who you feel may not be in a position (through drink or for any other reason) to give informed consent.


University is a place to seize opportunities and make friends. However, if you are unfortunate enough to find yourself with more than just a hangover, do not despair. We have extensive experience in dealing with this type of case and are here to help.



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