Rapists who try to blur the lines of consent by attacking victims when they are drunk, incapacitated or under their attacker's power are the target of new guidance for police and prosecutors, which "moves beyond" the notion of "no means no".
The guidance will spell out situations where someone is incapacitated through drink or drugs or where "a suspect held a position of power over the potential victim - as a teacher, an employer, a doctor or a fellow gang member", the Crown Prosecution Service has announced.
It is intended to spell out situations where possible victims may have been unable to give consent to sex, Director of Public Prosecutions Alison Saunders said, which campaigners hailed as "a huge step forward".
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The ability to consent to sex should also be questioned where the complainant has mental health problems, learning difficulties or was asleep or unconscious at the time of the alleged attack, the guidelines said.
They also cover domestic violence situations and those where "the complainant may be financially or otherwise dependent on their alleged rapist".
They also advise officers and lawyers to ask how the suspect knew that the complainant had consented "with full capacity and freedom to do so".
Mrs Saunders said: "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 though drink.
"These tools take us well beyond the old saying 'no means no' - it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism. We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?"
'For too long society has blamed rape victims for confusing the issue of consent' - Director of Public Prosecutions Alison Saunders
The handling of consent in sexual offence cases has been highlighted by convicted rapist Ched Evans, who was imprisoned for raping a woman when she was incapacitated through drink. He insists she consented and is trying to clear his name.
Sarah Green, director of the End Violence Against Women Coalition, said: “Although we have a long way to go in securing justice for all survivors of rape, the new guidance is a huge step forward in that it will help ensure that juries are asked to look in detail at the behaviour of defendants as well as at that of the complainant.
“It makes clear that consent must be sought as well as given, and it spells out issues around power and vulnerability of some victims which police, prosecutors and ultimately juries should take into account. We believe that broader social attitudes are slowly changing as, for example, we better recognise that girls who are sexually exploited by older men do not ‘consent’ to their abuse, and that men in positions of power target and abuse vulnerable victims.”
Saunders gave her speech at the first National CPS/Police Rape Conference on Rape Investigations and Prosecutions, held at the CPS's London headquarters.
At the conference, Metropolitan Police Assistant Commissioner Martin Hewitt, the national police lead on adult sex offences, said: "As report after report has shown, there is still far too much variation in the way that forces move a complaint of rape through the system.
"Reporting of sexual offences is up 22% in the latest statistics because of increased confidence in our service and recording but we have further to go. We need to tackle the iconic issues of 'no further action' and, particularly, 'no crimes' head on and reduce inconsistencies in our processes so that we can send a clear and unequivocal message to victims about how they will be treated."
