Spiking and the lack of specific legislation in the UK
Spiking occurs “when someone puts alcohol or drugs into another person’s drink or their body without their knowledge and/or consent”.This is a serious problem which affects people of all genders, although women are disproportionately affected. It constitutes a violation of a person’s bodily autonomy and can lead to physical harm and in some cases, death.
The current situation of spiking in the UK
In the UK alone, the National Police Chiefs Council received reports of around 5,000 cases of needle and drink spiking incidents in England and Wales between September 2021 and September 2022 alone. This suggests a rapid increase in spiking reports from autumn 2021, with many of those cases coming from students at university on nights out. However, the government has recognised that spiking is a “largely under-reported crime”,suggesting that the real figure may be much higher than the reports registered by the police, leading to a much more widespread and serious issue.
Despite the reports to the police, there is a notorious difficulty in detecting and proving that a drink has been spiked. Symptoms of spiking are largely similar to those of intoxication by drugs or alcohol but can be exacerbated. Also, the drugs used for spiking such as GHB and Rohypnol are usually odorless, colourless and tasteless, making it difficult for victims to identify that they have been spiked until they have consumed their drink and notice its effects.
Victims of spiking usually are dismissed and accused of having drunk too much, leading to a stigma around spiking and sexual assault, if it arises, as well as the victims’ fear to report the crime. This could be an explanation for the lack of reporting.
Furthermore, as part of a questionnaire of the 1895 victims, “almost nine in 10” allegedly received “no support after an incident, fewer than a third reported it and in most cases no further action was taken”. That same questionnaire suggested that most of the victims were “young women”. These questionnaire answers speak for themselves: the lack of support, under-reporting and shelving of cases alone would suffice to explain the deterrence that victims of spiking experience when seeking support or reporting the crime. The lack of support that is reported following claims of spiking is a factor in the under-reporting of cases and suggests that victims may not want to re-experience their trauma of being spiked by reporting it only to be told that nothing can be done or to be turned away from help. As such, the UK government decided to investigate specific legislation to create an offence of spiking in late 2021.
Michael Kill, CEO of the Nighttime Industries Association, stepped in to show the steps taken by the nightlife industry in the UK such as “barriers […], enhancing CCTV, enhancing security, enhancing searching, and […] being more vigilant, particularly in training staff”.The awareness of the nightlife industry is a step in the right direction although reports of spiking remain high and women in particular are becoming more fearful of taking part in nights out due to the threat and risk of spiking.
With regards to the perpetrators of spiking, there is currently no specific legal recognition of the crime, as previously mentioned. Spiking falls under various other crimes but no crime specifically recognises spiking and as such, so there currently exists no specific sentence. The insufficient data around spiking is problematic; identifying it as a “specific criminal offence would help deter offenders and demonstrate it was being taken more seriously”.Indeed, the fact that spiking does not exist as an offence results in a frequent miscategorisation of the crime or dismissal of a report altogether due to insufficient evidence or unclear criteria. Although there exist sentences associated to the other crimes that spiking could be recognised under, it is usually difficult to extend the crime to that of spiking, resulting in perpetrators walking free of the crime only to continue committing it because there are no warnings, punishments, or deterrents presently in place.
Why is the UK refusing to recognise spiking as a specific offence?
In a letter disclosed in January 2023, the government decided that there was no need to create a specific offence of spiking because it could fall under the remit of other crimes which already exist and already have specific legislation. Home Office Minister Sarah Dines indeed reiterated that there are already various offences which cover spiking incidents “including by drink, needle, vape, cigarette, food or any other known form”, and the government had not identified a specific “gap in the law”. Although spiking can fall under other crimes, the lack of specific legislation almost undermines the gravity of spiking as a crime, underrates it and suggests that it can simply fall under the umbrella of other crimes. As a growing crime in seriousness and frequency, the government’s approach seems too lax and to miss the point about the importance of spiking, protecting victims and prosecuting perpetrators appropriately.
Indeed, the creation of a specific offence of spiking, especially spiking for the purpose of committing a sexual offence, could help increasing the reporting of spiking incidents, improve police data as well as “sending a clear message to perpetrators that this is a serious crime”. Indeed, according to Labour’s shadow Home Office minister Sarah Jones, “we should call a spade a spade in this case and introduce a specific offence for spiking”.
Instead, the government decided that it would focus on “non-legislative measures to tackle spiking and it would consult on potential changes to statutory guidance to include ‘explicit reference to spiking being illegal and give examples of such spiking’”.The government seems to recognise in this instance that spiking is serious and needs further consideration although the unwillingness to recognise an offence of spiking and identify specific punishments demeans this statement. The government seems to stand on the side of the perpetrators by insinuating that spiking is not as serious as other crimes such as rape and sexual assault, so no specific legislation is required. However, rape and sexual assault can arise following spiking because the victim may have lost consciousness and will be incapable of consenting; in the same way, the victim will then be unable to refuse a sexual act.
Should a specific spiking law exist? Will the creation of such a law change the frequency and gravity of spiking?
According to the government, “police are yet to encounter a case where they could not apply an existing offence”.However, this statement alone should suffice to and justify the creation of a new offence to coincide with growing reports of spiking and by new means such as needles, which have been used most recently. Anticipating such a surge in spiking as well as having a specific legislative framework in place would ensure a greater level of victim protection, an appropriate sentence for the perpetrator as well as a deterrent for the perpetrator not to commit such a crime to avoid the punishment altogether.
In England and Wales, spiking currently falls under various crimes to administer substances. Indeed, the Sexual Offences Act has such an offence where the person does not consent, with the intention of “stupefying or overpowering” them to enable any other person to engage in sexual activity with them, which carries a maximum sentence of 10 years’ imprisonment. The Offences Against the Person Act 1861 contains two offences: one to maliciously administer poison to endanger a person’s life or inflict grievous bodily harm with a sentence of a maximum of 10 years’ imprisonment and one to administer to a person “poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy” with a maximum sentence of five years’ imprisonment.
Spiking thus carries a potential sentence of a maximum of 10 years’ imprisonment in England and Wales if it falls under the crimes stated above. However, this is rarely applied due to the lack of specific recognition of spiking in law. As such, the perpetrators of spiking may be able to walk free without an incentive to stop spiking.
The CPS has alleged that spiking data is inaccurately recorded because there does not exist a legal definition of “spiking”. So, most cases are prosecuted under other offences which involve “administering substances to another without their consent”,as above, but are frequently dropped because there is insufficient evidence to prove that a substance was administered or a lack of reporting because of the associated stigma.
It seems that the creation of a specific law would therefore implement a legal definition of spiking as well as afford greater levels of protection to the victim and punish perpetrators of spiking accurately and efficiently.
Why is spiking affecting women disproportionately compared to men?
As part of a YouGov survey, it was identified that one in nine women said they had their drink spiked with a third of women also knowing someone who had been spiked.
Some recommendations given to women to avoid being spiked are to avoid accepting drinks from strangers, stay with friends, cover their drink, amongst others. However, this advice is redundant, overheard and repetitive. Women, and those spiked, should be able to enjoy an evening out without the fear of being spiked. Additionally, such defenses may only be used against drink spiking, and would be useless against needle spiking, which has been recently occurring.
Women are generally perceived as being more at risk of being spiked and affected as a consequence due to the use of the so-called ‘date-rape’ drug to spike some drinks. Indeed, the drugs known as Rohypnol and Gamma Hydroxybutyrate can be used “to commit physical and sexual assaults as they can sedate or incapacitate a victim, making them more vulnerable to attack”.
Date-rape drugs are frequently used on women so that the perpetrator can sexually assault or rape the victim in an attempt to bypass consent as well. These drugs can be used on men too; however, UK data suggests that women are raped at a much higher frequency than men. Indeed, the figures show that around 85,000 women and 12,000 men “experience rape, attempted rape or sexual assault by penetration in England and Wales alone every year”. This leads to the conclusion that more women are likely to be spiked using the ‘date-rape drug’.
In conclusion, the decision from the UK government to dismiss the potential implementation of specific legislation for the offence of spiking is problematic and incomprehensible. Given the surge of spiking reports and the knowledge of large under-reporting from victims due to stigma, the lack of legislation is unhelpful and will continue putting victims off from reporting and will allow perpetrators of the crime to continue to commit the crime and allow the possibility of walking free afterwards.
 Rape Crisis England & Wales, What is spiking?, < https://rapecrisis.org.uk/get-informed/types-of-sexual-violence/what-is-spiking/#:~:text='Spiking'%20is%20when%20someone%20puts,their%20knowledge%20and%2For%20consent.> Accessed on 18th January 2023.  The Telegraph, Nearly 5,000 cases of needle spiking reported to police in a year, new figures shows, < https://www.telegraph.co.uk/news/2022/12/29/nearly-5000-cases-needle-spiking-reported-police-year-new-figures/> Accessed on 18th January 2023.  House of Commons, Home Affairs Committee, Spiking: Government Response to the Committee’s Ninth Report of Session 2021-22.  BBC News, Spiking victims dismissed as having ‘one too many’, says MPs, < https://www.bbc.com/news/uk-61182345> Accessed on 18th January 2023.  House of Commons Library, Prevention of spiking incidents, < https://commonslibrary.parliament.uk/research-briefings/cdp-2022-0242/> Accessed on 21st January 2023.  BBC News, Drink spiking: What’s being done to stop it? < https://www.bbc.com/news/newsbeat-59235121> Accessed on 18th January 2023.  BBC News, Needle spiking: ‘I’m losing out on my 20s and having fun’, < https://www.bbc.com/news/uk-england-suffolk-63960790> Accessed on 18th January 2023.  BBC News, Spiking: No need for specific offence, government says, https://www.bbc.com/news/uk-politics-64244147>, Accessed on 18th January 2023.  BBC News, Spiking: No need for specific offence, government says, https://www.bbc.com/news/uk-politics-64244147>, Accessed on 18th January 2023.  Ibid.  Ibid.  Ibid.  Sexual Offences Act 2003, s.61.  Offences Against the Person Ac 1861, s.23-4.  BBC News, Needle spiking: ‘I’m losing out on my 20s and having fun’, < https://www.bbc.com/news/uk-england-suffolk-63960790> Accessed on 18th January 2023.  YouGov, One in nine women say they had their drink spiked, < https://yougov.co.uk/topics/society/articles-reports/2021/11/18/one-nine-women-have-been-drink-spiked> Accessed on 18th January 2023.  Drinkaware, Drink spiking and date rape drugs, < https://www.drinkaware.co.uk/advice/staying-safe-while-drinking/drink-spiking-and-date-rape-drugs> Accessed on 18th January 2023.  SOSRC, Sexual Violence Stats, < https://www.sosrc.org/sexual-violence-stats/#:~:text=Approximately%2085%2C000%20women%20and%2012%2C000,of%20adults%20alone)%20every%20hour.> Accessed on 18th January 2023.