Blog: advice from a criminal defence lawyer (and mother) to young people going to music festivals
16 Jun 2022
After a Covid-induced hiatus, the summer music festivals are here again. As young people head off to the Glastonbury festival for the first time in three years, Aileen Colhoun sets out her advice on how they can navigate the legal risks around sexual assault and rape.
The start of the summer music festival season is a time of high excitement for young people across the country.
Freed from the pressures of education – and physically distant from their parents’ protective gaze – young people head off to Glastonbury, Reading, Leeds (and elsewhere) to make friends, enjoy the music, and relax in the company of like-minded people.
But while most festival experiences are nothing but positive, the freedoms these events offer do not come without risk. Excess alcohol and drug consumption are long-standing features of the festival scene. These, plus the enthusiasms and naiveties of youth, can make them places where serious allegations of sexual assault or rape are common.
Whatever the outcome of a complaint, both parties’ lives will be changed forever.
As a concerned parent and a criminal defence solicitor who has experience of representing young people caught up in these situations, I thought it would be useful to set out some basic advice to young people heading to a festival this summer.
1. Know what consent really means
For a sexual encounter to be legal, everyone involved needs to give their consent for it to occur. Most young people will understand that consent, in this context, means ‘engaging in sexual activity by choice, if you have the freedom and capacity to make that choice.’
However, consent does not need to be explicit. It can be implied or understood.
It is important for young people to know it is defence against a criminal sexual allegation for an accused person to show that they had a ‘reasonable belief’ that consent was freely given. A complainant may argue forcefully otherwise, but if an accused person can satisfy a jury that they had a belief that in all the circumstances could be considered reasonable that consent to sex was freely given, then the criminal prosecution against them will fail.
In my experience, most sexual prosecutions result from a conflict over the issue of consent. Mixed messages can create confusion. My advice to young people is to know what consent really is; be clear in communicating it; and make no assumptions about another person’s desires.
2. Understand the limits of ‘capacity’
The Sexual Offences Act 2003, which governs the law on most sex crimes, identifies certain situations in which capacity to consent to sex is likely to be so impaired that the starting point – or presumption – is that that person will not have consented to sexual activity (and that therefore a crime is likely to have taken place).
These situations include two which are likely to occur at a music festival, namely:
– if someone was asleep or otherwise unconscious
– if someone is ‘stupefied or overpowered’ by drugs or alcohol which have not been consumed voluntarily (for example if someone’s drinks have been spiked).
However, it is important to realise that this does not mean that someone who is involved in a sexual encounter while drunk (or high on drugs, or both) is automatically the victim of a crime.
The courts have considered the effect of excessive (but voluntary) consumption of alcohol / drugs on the ability of a person to consent to sex and have ruled that consent can only be absent if the effect of the alcohol / drugs is so powerful that the complainant lost the capacity to choose whether to engage in the sexual activity.
Waking up, in someone else’s tent, with an awful hangover, and terrible regrets about what happened the night before does not mean, in itself, that a crime was committed.
3. Document your friendship
In many cases, suspects in sexual assault and rape cases provide the police with photographs, video footage or social media messaging to prove that that they believed that consent was given.
This material may have shown the individuals allegedly involved in a disputed sexual encounter laughing and joking together in the hours before or even after this event occurred. Evidence of a warm (perhaps even flirtatious) relationship can support a suspect’s argument that they reasonably believed consent was given.
The same material has also been used by complainants in sexual assault cases to show how the relationship between two people was very far from warm; and thus refute a suspect’s argument that they had a reasonable belief that consent was given.
In any case, it can be a good idea for young people to document any new friendship on social media (while also being careful not to post or share sexually explicit images of a sexual encounter which can give rise to a separate criminal offence).
4. Don’t be secretive
Whilst eyewitnesses to a physical sexual encounter are rare, witness evidence to the events that led up to or followed it can be crucial, both in proving any merited allegation of sexual assault, or in disproving an unmerited one.
My advice to young people attending music festivals is to talk to your friends about your plans. Let them know who you are with, where you are going and (if possible) what you hope to do.
Friends’ recollections about your movements, what you said, and your state of mind may later prove crucial in determining the truth about any disputed encounter.
5. Treat others, and yourself, with respect
Finally (and readers will forgive me if this sounds overly maternal), but I hope that all young people treat themselves, and others, with respect.
Avoid creating risky situations. Don’t take drugs and alcohol to excess. Stay with people you trust.
Don’t assume anything about another person’s sexual desires. Be clear about what you want – and don’t want – and don’t allow yourself to be persuaded to do otherwise.