Illusions of consent – Police and Crown Prosecution Service responses to victims of professional sexual abuse in mental health services

The recently published Rape Review by the Crown Prosecution Service Inspectorate for England and Wales (CPSI 2019) drew our attention to a backward trend in bringing alleged rape case to court. The report highlights that since 2016 there has been a 42.5% rise in the report of rape allegations to the police and a 22.6% decline in the number of rape cases charged by the CPS. Sexual offences (including those committed historically) are likely to be under reported to the police and so these figures are likely to under represent an increasingly worrying picture. However, the report has focused on processes, interface between the police and the CPS and whether or not the CPS is ‘risk averse’. In relation to judgements about consent it refers to judgements being ‘finely balanced’ on the assumption that, what is otherwise a lawful act (sexual contact), is only rendered unlawful by a process (of consent or lack of it) which takes place in private and without witnesses. However, this paper challenges these ideas about consent when they relate specifically to the sexual abuse of vulnerable women in mental health services when they are sexually abused by a professional. It is based on an instrumental case study into the experiences of one family who have tried to seek justice after their sister was sexually abused while receiving mental health care. It focuses on the responses of the police and Crown Prosecution Service to the case, who, even though the perpetrator confessed and it was acknowledged a crime had been committed, decided not to bring a prosecution. The case highlights how the legal authorities maintained an illusion of consent and focused on the failure of the victim as opposed to the failure of the perpetrator. Subsequent risks presented by non-prosecuted offenders point to the CPS being in ‘public risk’ denial as opposed to risk averse to its own organisation and targets. The paper takes an emancipatory approach to the methodology and uses a socio-legal framework for the analysis of the data. The conclusions provide useful insights for those dealing with such cases from a mental health, fitness to practice and safeguarding perspective.

HM Crown Prosecution Service Inspectorate (2019) 2019 Rape Inspection – A thematic review of rape crisis by HM Crown Prosecution Service Inspectorate. Available on line https://www.justiceinspectorates.gov.uk/hmcpsi/hmcpsi-rape-inspectio...