Oxford Brookes University Scandal - Considering ‘consent‘

Alan Collins and Feleena Grosvenor discuss a recent case regarding alleged gang rape that took place at Oxford Brookes University in February 2018.

This case concerns one woman, a British student and the victim, and four international students, the alleged perpetrators.

It is understood that one of the accused was admitted to the university while under investigation in the United States over two allegations of rape by a female student.

The victim, who was aged 19 at the time, alleges that the topic of “group sex” had come up in a hypothetical and humorous context and she had “laughed it off”. But, on another occasion, the men allegedly turned serious and told her that she “owed them group sex”. The woman felt pressured to participate and claims that she initially took part in some non-penetrative sexual activity. She states that she was clear that she did not want to continue but was overpowered and repeatedly raped.

The case was investigated by Thames Valley Police but they concluded that there was ambiguity over the woman’s consent and so they could not refer the matter to the Crown Prosecution Service. This is allegedly because she consented to some sexual activity both before and after the alleged rape. The decision was reviewed by a detective chief inspector who concluded that there was no reasonable prospect of conviction.

This led to the student attempting to kill herself, by overdose.

After the police concluded their investigation, Oxford Brookes University initiated a misconduct investigation. It was held that the woman was subject to “sexual harassment, violence or abuse” and three of the four men were found to “had not taken appropriate care to establish that consent was present throughout the entire evening, and this constitutes abuse”. It was found that apparently the fourth individual did not participate in the rape. The three individuals were expelled from university. The fourth had a term’s suspension and was ordered to write a letter of apology to the alleged victim.

This case highlights concerns that have been growing around rape culture on campuses, and in relation to men with power or social status, as athletes, as these men were. This case also addresses the difficulties with consent in a criminal context.

The different outcomes to the criminal investigation and the university investigation are because of the different “burden of proof” that applies.

In a criminal context, the lack of consent has to be proved beyond reasonable doubt, meaning you are sure, in order for someone to be guilty of rape, assault by penetration, sexual assault or causing a person to engage in sexual activity. The university needed only to look at a “balance of probabilities”, meaning more likely than not.

Section 74 of the Sexual Offences Act 2003 defines consent as “if [s]he agrees by choice, and has the freedom and capacity to make that choice”. Prosecutors should consider this in two stages. They are:

• Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
• Whether he or she was in a position to make that choice freely, and was not constrained in any way.

Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Determining if the four men had “reasonable belief” that the woman consented can be a difficult one.

The best way of dealing with this issue is to ask two questions.

• Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
• If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

It is, of course, difficult when the alleged perpetrator alleges that they reasonably believed there was consent, when in fact they do not believe the same.

We encourage anyone who has comments or concerns relating to this subject, or about abuse in general, to get in touch with Alan Collins at Alan.collins@hughjames.com or Feleena Grosvenor at Feleena.grosvenor@hughjames.com.

 

Sources:

• Oxford Brookes University expels athletes after ‘gang rape’ claim | News | The Times
• Four students are alleged to have gang-raped 19-year-old fellow undergraduate  | Daily Mail Online

Rape and Sexual Offences - Chapter 6: Consent | The Crown Prosecution Service (cps.gov.uk)