Put the Sexual Offences Act to bed

The British Home Office is launching a publicity campaign telling men to ensure that a woman has consented to sex – or else they could stand accused of rape. The £500,000 campaign will kick off on 14 March 2006 with radio adverts, and will move on to ads in men’s magazines, stickers on condom machines and posters in pub toilets.

According to officials, the campaign aims to assuage public ‘confusion’ about the implications of the Sexual Offences Act 2003. In a nutshell, this act states that the burden to prove consent lies with the man: the alleged rapist has to show that he had taken ‘reasonable steps’ to ensure that the woman had consented to sex. As a Home Office spokesperson put it this week: ‘Giving consent is active not passive, and it’s up to everyone to make sure that their partner agrees to sexual activity.’

The Sexual Offences Act 2003 also states that a person must have the freedom and capacity to consent to sex, raising the question of whether it’s legally possible for women to consent while very drunk.

It’s the government, not the public, that is confused here. So, men just haven’t got it into their heads that they need to make an effort to check for consent? Perhaps a solution might be standard-issue forms so both partners can add their signatures at all stages of proceedings? That is just not how sex happens, something you’d have thought that even Home Office officials would understand.

To officials’ great surprise, people continue to have sex while very drunk – exhibiting their blatant ignorance of the Sexual Offences Act 2003. Don’t those women know what they are getting into? Don’t men know that their partner has to be of rational mind in order to qualify for the capacity to consent to sex?

New Labour is a master of unworldly laws, emerging out of bureaucrats’ heads rather than public need. Where normal laws express generally accepted ways of doing things, bringing deviants into line, New Labour uses the law to ‘send a message’ or to encourage ways of doing things more in line with its liking.

The Sexual Offences Act 2003 is a case of feminist theory trying to remake society in its own image. But rather than admit the gap between law and reality, the government tries to bring the public around to thinking and behaving in line with the law. If men aren’t checking with their partners that they are consenting, a public education programme must be the solution.

This law strikes no blows for women’s lib. It treats women as feeble creatures who need to be asked for consent (as if they couldn’t make their views on the matter quite clear). It suggests that after a few glasses of wine they lose all capacity to make choices, and should be tucked up in bed, alone. Meanwhile, the law casts all men as potential rapists – and uses a particularly low means of telling them so, through condom machines and posters on toilet walls.

Finally, the Sexual Offences Act 2003 has dangerous implications for legal rights. The presumption of innocence is in effect being overturned here, placing the burden of proof on the accused. As a result, innocent men could end up in jail. Rape is a very serious crime that carries a deservedly heavy sentence, and so it’s important that guilt is proven ‘beyond all reasonable doubt’. Rape should be distinguished from everyday, messy sex – sex that is regretted; sex that you didn’t really want but went along with; sex that you were too drunk to remember.

In cases of rape – forced sex – there should be no confusion among the parties about the fact that a crime has been committed. The government’s sex education programme can only sow seeds of confusion.