Prosecutors in rape cases in England and Wales need to be aware of changing sexual behaviour in the digital age, when deciding if a case should go to court, new guidance says.
Naked selfies, dating apps and casual sex are covered in a wide-ranging Crown Prosecution Service (CPS) review.
The CPS says prosecutors must understand that many teenagers believe sexting is part of “everyday life”.
It follows criticism over record-low rape convictions in England and Wales.
There has also been a big drop in cases being taken to court.
The CPS says it has worked with victim support groups to produce this new guidance aimed at challenging long-held rape myths and stereotypes.
It found such stereotypes are common, such as believing that wearing a short skirt is proof of implied consent to sex.
However prosecutors also need to understand that technology has changed the way people communicate and behave.
Siobhan Blake, CPS rape lead, said: “It’s vital that our prosecutors understand the wider social context of these changes. For example, many teenagers believe that sending explicit photos or videos is part of everyday life.
“Our prosecutors must understand this and challenge any implication that sexual images or messages equate to consent in cases of rape or serious sexual violence.”
Changes have also been made to guidance in cases involving same sex violence and when there are victim vulnerabilities, with a focus on psychological and mental health issues.
The latest statistics for rape convictions in England and Wales are due out on Thursday. The last quarterly figures in July showed convictions at an all-time low.
In 2019-20, 1,439 suspects in cases where a rape had been alleged were convicted of rape or another crime – in 2016-17 there were 2,991 convictions. The number of prosecutions also fell from 5,190 in 2016-17 to 2,102 in 2019-20.
At the same time the CPS launched “a five-year blueprint” to reduce the gap between reported cases of sexual violence and those which come to court.
Over the past five years, cases reported to police and initially recorded as rape have risen sharply to 59,747, but the number making it to court in that time has more than halved.
In 2017 Rebecca began a relationship with a man who lied to her that he was a police officer. In reality he was a convicted criminal with a history of violence.
She discovered this after he threatened her with a knife, punched her, tried to break her hand and raped her.
After the attack Rebecca says she had some seemingly normal WhatsApp exchanges with her attacker because she was terrified of him.
She was told by CPS lawyers that because of this he would not be prosecuted.
Rebecca says she was left suicidal by her experience and she’s unsure whether she would advise other complainants to come forward.
She describes the timing of this new guidance – with rape convictions at a record low in England and Wales – as a whitewash.
“I hope the myth-busting training starts with the CPS lawyers who specialise in rape and serious sexual offences. In my view they are the problem,” she says. “I have seen first hand how the CPS strategy is to pull apart a case and play the ‘odds’ game.
“Their approach is to second guess what a jury will decide. The lawyers are fixated on conviction rates and funding, not on representing victims.”
Rebecca says that while a focus on digital communication might help younger complainants, it won’t be relevant to older victims.
“Rape doesn’t discriminate. It is endemic and it happens to people of all ages. There are swathes of people who do not get involved in sharing naked pictures or sexting.”
The End Violence Against Women coalition and their lawyers at the Centre for Women’s Justice are currently involved in legal action over rape prosecutions.
In a case due to be heard early next year, they are mounting a court challenge that will examine rape prosecution policy and practice.
Sarah Green, director of the End Violence Against Women Coalition, said: “The new guidance for rape prosecutors is welcome if it enables those who prepare cases for court to predict and reject sexist stereotypes about rape and to really consider the impact of trauma on how rape survivors may present.
“Rape prosecutions are at an all-time low – with just one in 70 reported cases going to court. We hope therefore that this new guidance will be accompanied by comprehensive new training for all prosecutors and a clear message from CPS leaders that improvement here is expected and is a top priority.”
Fay Maxted, chief executive of the Survivors Trust, said it was important to dispel misconceptions and misunderstandings.
“Negative stereotypes and myths about rape victims are pervasive in society, creating a toxic environment where victims and survivors fear they will be judged or disbelieved.”