Fresher's Week - A parent's perspective on an essential discussion about rape and navigating consent

As my children headed off to university last week, I gave them each several boxes of condoms, unwilling to leave to chance the possibility that beer would be prioritised in their weekly budget.
 

We also had The Conversation about sex, consent and respect, which for me is not simply born out of parental concern (I have a son and a daughter) but is also heavily influenced by my professional life, since I am a criminal defence lawyer specialising in cases of sexual misconduct, harassment, rape, revenge porn and stealthing, often involving young people.

My children are not freshers, so we've had The Conversation before. But this year it struck me as all the more important. Today Chanel Miller publishes Know My Name, telling her side of the Stanford University rape that made international headlines. And recently media reports pointed to an 82 per cent increase in complaints of sexual violence at British universities. 

Let’s not debate whether the #MeToo effect has simply generated greater confidence to report, rather than a “real” increase in incidents. The fact is that 1,900 students complained about some form of sexual violence last year and that means there are potentially another 1,900 students who are suspects.

There is an atmosphere of zero tolerance towards unwanted sexual behaviour among students these days and almost of militancy over the right to report, the imperative to report and, dare I say it, an expectation of guilt predicated on the allegation alone. To be on the wrong side of that is a scarier prospect than ever.

Universities have displayed a range of responses in the face of allegations. Some have interactive programmes designed to embed and articulate messages of respect for others and the law. Some require students to undergo a more superficial, self-serving, tick-box exercise designed largely to absolve the university of responsibility in the
event of a problem.

Regardless of the approach being followed by my children’s institutions, having worked so hard to keep them safe until now, I am not about to outsource this important conversation to an entity more concerned with potential headlines and its own reputation than that of my darling child.

Particularly having seen allegations of sexual misconduct (including rape) dealt with under university regulations rather than in a criminal court of law – thereby absent the protections one might normally expect for both complainant and suspect.

Who knows whether The Conversation would have stopped Brock Turner from committing an assault, or whether it might have helped others involved in notorious sexual assault allegations on campus. But I consider it the most protective advice I have ever provided as a parent. In the current climate, all young men can be accused of rape and any young woman, man (or they) is a potential victim. I want to do my best to ensure my children are neither.

My advice is simple and clear:

• It has never been OK to take liberties with a (man or) woman - by liberties I mean anything sexual or sexually motivated be it cat-calling, wolf-whistling, bugging someone to go out with you, copping a cheeky feel, hassling, cajoling or threatening someone to go out with you, not to mention touching someone sexually, without consent.
   
• Consent is given in English law when a person agrees by choice and has the freedom and capacity to make that choice. In practice that can mean several things but the best way is to use actual words. Have a conversation about consent. Say what you want and don’t want. Listen and understand that just because you want something to happen, does not mean it must. The other person has an absolute right to decline and just because they do not say no, it does not mean “yes”.
   
• If an allegation is made, none of the following explanations will make any difference: I can’t remember; I was drunk/high; I thought it was funny; there was a “vibe” between us; I could just tell s/he wanted me to; I didn’t realise it was that serious; but I really love x.
   
• A successful legal defence requires the accused to show that they had a reasonable belief consent was given. It may sound overly cautious but in this day and age using a consent app or even a post-it note to help evidence you at least had a conversation about consent is not sexy but is strongly worth considering.
   
• If the other person is more drunk than you, make sure they are safe and leave it at that for now. If it was meant to be then it can happen another day.
   
• Use protection and if consent is given conditional on you using a condom - then keep it on throughout. Stealthing is the deliberate removal of a condom during sex and the law is clear that this is rape.
   
• Finally you are living in an era wholly different to that experienced by any previous generation of university students. Whilst complainants are afforded anonymity or the right to such, the same cannot be said for the accused. You are the person named and shamed if an allegation is made. Whether it is subsequently substantiated or not makes little difference to the fact that every future employer or acquaintance will be able to find that information at the click of a button. It’s a stain that never goes away, no matter what you go on to achieve.

The landscape has undoubtedly changed for us parents too. It's no longer about whether our young adult kids are having sex but equipping them to navigate modern relationships where sex can be but a party game and sexting is the norm. An essential part of their education must be respect for themselves and others, how the law works and the current vagaries of how sexual complaints are dealt with in the criminal justice system - and by our universities.

Genning up on the law around sexual conduct may feel like a sad indictment of today’s attitudes to social interactions – but better that than to live in regret.

This blog was first published as an article in The Telegraph on 24 September 2019. Please click here to read the article on The Telegraph website.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team in confidence.

About the author

Sandra Paul is a partner in our criminal litigation team. She has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual offences. She works with clients in the UK and abroad, including allegations following the #MeToo campaign.

She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.

Drawing on her advocacy experience, Sandra is particularly accomplished in preparing witnesses to give an account or evidence in settings ranging from court proceedings through to internal and external investigations or inquiries.  Sandra’s career has included discreet representation of high profile individuals including politicians, bankers, music, sports and media personalities.