The rape conundrum: should a suspect know consent – or the DPP know the law?

‘How did you know she consented?’  This is the question that Alison Saunders, the Director of Public Prosecutions, wants the police to put to men suspected of rape.  It’s part of a new ‘toolkit’ designed to increase the rate of convictions in rape trials.

The initiative is one of a wider series of measures intended to exploit the current law on rape with particular emphasis on demonstrating capacity to consent, since intoxication or mental illness or disability may vitiate apparent agreement to the extent where it’s not only ‘no’ that means no, but ‘yes’ may mean no too in the eyes of the law.

The 2003 Sexual Offences Act significantly changed the law on consent.  Whereas it used to be sufficient for an accused person to rely on a belief in consent, even if this was passive acquiesance, it became necessary to demonstrate that their belief was, in all the circumstances, reasonable. 

In other words it moved from what a person believed, to what they ought to have believed.  In legal terms this was a shift from a subjective test to a subjective one with an objective element.

At the same time, the notion of capacity became more slippery.  Because if a partner was asleep, unconscious or even conscious but drunk, they might be presumed incapable of giving meaningful consent and therefore guilt could be inferred without more.

While all of this looks fine on paper, in the real world of the dizzying excitement of transitory sexual encounters, where the magic of the moment may be followed by a rude sense of alcoholic remorse, it can be very messy indeed.

Where, as is often the case, both parties have voluntarily consumed significant amounts of alcohol, is it reasonable to expect only one party to take responsibility for ensuring the other would have consented despite intoxication? And where memory lapses occur through drink, should this mean a lack of capacity can be presumed on behalf of a complainant, whereas a suspect similarly affected is presumed guilty, since he cannot rely on the notion of drunken intent?

Ms Saunders is unapologetic.  From her standpoint there is a presumption of guilt the moment a complainant makes a report. That’s why she defends the use of the term ‘victim’ for ‘complainant’ and is determined that the criminal justice system as a whole should follow suit.

But with her ‘toolkits’ there is an inherent danger a complainant may be prompted into making claims about consent and capacity which fit the formula of ‘case building’ to meet the law, rather than relying on what actually did occur to the best of her memory.

In other words, it’s all too easy for case building, in such circumstances, to become case manufacture.

Such potential betrays not a respect for the law and the office which she is privileged to hold, but a profound abnegation of the responsibility of the CPS.

For despite indications to the contrary, it is not the role of the DPP or the CPS to act as witch finder general on behalf of interest groups, but to act in the interests of justice and fairness on behalf of us all, including suspects.   

For the DPP, it would appear the ends justify the means as far as case building goes. But what she cannot do is change the law.

And this is where her consent question oversteps the mark.  Because expecting a suspect to know a complainant consented is not, even within the current vagaries of the law, valid.  What is required is reasonable belief in consent.  Knowledge goes beyond this in it being what was actually the case.  

There is, rightly, in the law, still an element of subjectivity enshrined in the word ‘belief’ which is, in all the circumstances, all a sexual partner can be expected to do. Anything beyond this would be a form of mind-reading and that cannot be his responsibility.

To be confronted with the question of knowledge is therefore both oppressive and illegitimate. 

It would appear only to be designed to put the unwary suspect on the back foot, his being forced, hopelessly and haplessly, to prove his innocence.

It has no place in the ‘toolkit’, as indeed the DPP should know since the subjective definition of ‘reasonable belief’ is included in the CPS legal guidance which preceded her tenure. 

But perhaps more worrying, is the fact that although the new measure has received copious media attention and commentary, there has been no apparent recognition hitherto that this move is illicit.

The DPP does not make the law, she follows it.  

Perceived ‘political correctness’ does not give licence to legal invalidity and it is vital that critical scrutiny goes beyond the knockabout tournaments of ‘blame the bloke’ versus ‘blame the victim’.

For as George Orwell once wrote ‘English… becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.’

The Rotherham Report: verdict first, trial later?

Since the  explosion  of allegations about the late Jimmy Savile in 2012, we have become accustomed to a plethora of inquiry reports pronouncing  guilt without the merest whiff of due process.

In a similar vein in August this year, the Rotherham Independent Inquiry into Child Exploitation came to the shocking verdict that at least 1400 children in the town had been hideously  abused over 14 years in plain sight of the protective authorities with barely a prosecution to show for it.

During the past few years public awareness of the ‘grooming gangs’ has increased through a number of high-profile prosecutions, but if the claims made in the Rotherham report have substance, these are indeed the tip of the proverbial iceberg.

However at Chris Saltrese Solicitors, we have learnt to be wary of presumptive and stereotyped claims – and how they can preface a witch hunt.

 With investigative expectations to the fore, too often evidence may be coaxed and confabulated to fit a pre-conceived image, especially where the events in question are long past and there may be financial incentives for complainants.

In the Rotherham report, a handful of extreme case history allegations documented are said to typify the speculative number of victims’ experiences as a whole predominantly at the hands of ‘Asians’. 

In so doing, the entire the 8000 strong Pakistani –Kashmiri community in the town has been veiled in suspicion and suggestions of a cover-up, while the National Crime Agency has taken charge of investigations from the seemingly hapless  South Yorkshire Police.

We have in the past written critically of the oversight by police and social workers in allowing young girls to engage in sexual activity detrimental to their welfare, while  urging caution in accepting oral testimony uncritically.

Thus we make no apologies for questioning the presumptions and the soundness of the evidence-base of the Rotherham report in our newly published critique.

 Furthermore we point to the hypocrisy of the child protection establishment in their support for the Gillick ruling in the 1980s which granted children sexual autonomy as if they were adults by permitting contraception and abortion services without parental notification and consent.

Little wonder therefore that some girls were easily vulnerable to persuasion as to perceived sexual freedom, aping  the culture of clubbing and recreational casual sex that the adult and media  world shamelessly flaunts.

While the Rotherham report clearly documents the processes that failed potential victims and their families over the years, it is far from clear how reliable and extensive the violent exploitation, trafficking and multiple perpetrator rape claims were.

Furthermore the source of much of the ‘hard core’ evidence appears to emanate from an untrained advocacy source, Risky Business. 

One member of the project provided a report for a Home Office project in 2001 which appears to have been rejected in mysterious circumstances. 

Perhaps even more mysteriously however, since this researcher’s original findings are held as being unjustifiably suppressed, the identity of this key player remains anonymous. 

She has since the report was published given media interviews claiming that her original data was stolen (something not alleged in the report), and also given evidence anonymously to the Home Affairs Select Committee in private.

While complainants in sexual offence cases enjoy lifetime anonymity, it is not clear why a council employee responsible for gathering claims of serious criminal offences should be allowed a similar licence, particularly in the light of the fact that a succession of senior officials and councillors have been forced to stand down over the affair.

Stripped of hyperbole, the fact is we know very little of the nature and extent of the criminal activity underpinning the conclusions of the Rotherham report.

The liberal use of emotive terms such as 'grooming' and 'trafficking' can obscure rather than identify the facts given their broad definition spanning from being nice to a child and giving someone a lift to abduction and murder.

In a climate of fear, the more severe the conclusion the more likely it is that sexual abuse inquiries are guaranteed virtual immunity from critical scrutiny.  'Better safe than sorry' is the understandable overriding maxim. 

But this is misconceived. A rush to presumptive judgment will do little to ensure justice, or protect future children from harm and could foster widespread injustice and avoidable harm.

However other than pointing the finger of blame, there has been little or no critical debate to be heard either in the media or political circles. 

 Our critique, based only on the report itself,  is a small step in that direction. 

   

BBC - looking the wrong way yet again

On Sunday 6th October  I went along to the BBC studios in Salford to take part in a BBC Radio 5 Live programme http://downloads.bbc.co.uk/podcasts/5live/5linvestigates/5linvestigates_20131006-1500a.mp3 discussing the rise in the number of allegations of historical sexual abuse post-Savile. Or the “post-Savile spike” as it was rather gruesomely described.

There was a great story to be told here, or so I thought. A story of police and prosecutors, of charities and charlatans (aka personal injury lawyers) whose individual and collective moral blindness has contributed to the greatest series of miscarriages of justice in the history of the criminal justice system in this country; where hundreds (if not thousands) of innocent men have been sent to prison for vile crimes which they have not committed (for more on this see the works of the late, great Richard Webster  http://www.richardwebster.net).

But, as is customary these days, the BBC fluffed its lines. It failed completely to get to grips with the real story behind the epidemic of historical abuse allegations and instead of giving listeners a Sunday morning treat it dished up the thinnest of gruels: a dismal pot pourri of pre-recorded propaganda from the usual suspects; the nice policeman saying how terribly difficult it is to investigate and prosecute theses cases (nonsense, there is no investigation required and they are a piece of cake to prosecute); the nice man from the NSPCC bleating on about the usual stuff they bleat on about (I cannot recall a word he said); and the anonymous “victim” who had the great misfortune to be abused by two choirmasters, had then gone on to join the police and had managed to unburden himself only after a course of therapy (no comment necessary).

And then there was me, an afterthought, no doubt drafted in to maintain the BBC’s love of “balance”; given a minute’s airtime to state my case only to be told by presenter AdrianGoldberg that I am  in it for the money before being ushered out of the studio by the gofer. I now know how Nigel Farage must feel, the poor chap.

Had I been extended the courtesy of five minutes on the subject here’s what I would have said.

The increase in historical allegations post-Savile has very little, if anything, to do with brave “victims” summoning up the courage to report their abusers. Rather it has everything to do with complainants making false allegations (for whatever reason, but money often comes into it) safe in the belief that their stories will not be subjected to the slightest scrutiny by the police and the prosecuting authorities. For these complainants (and more especially their money-grubbing lawyers) have picked up clear signals that the police and the Crown Prosecution Service are on their side and that their allegations will be gratefully received and unquestioningly believed.

Nowhere is this signal stronger than in the Metropolitan Police’s infantile report on the Savile affair itself (Giving Victims a Voice). In its breathtaking disregard for both logic and common sense the report, co-authored by the NSPCC, assumes that because the allegations against Savile were made, the offences were committed. And it goes on to solemnly declare that 214 incidents of abuse have been “formally recorded” as crimes. Nowhere in the report is there mentioned the possibility that a single one of these allegations might be false. This is not so much a retreat from scepticism as a dereliction of duty.

Yet no one at the BBC or in the mainstream press (with the notable exception of Charles Moore at the Daily Telegraph) has dared to question the report’s methods or conclusions.  Rather the BBC has responded by setting up its own expensive internal investigation, which has rubber-stamped the Met’s findings, and has devised its own scheme for compensating victims (seven grades of compo available if you’re interested); and all of this paid for by the licence fee, naturally.

We now live in a country in which, like the old Soviet Union, an unsupported allegation is enough to send a man to prison; where we rejoice in the hounding and prosecution of old men (and this is for the most part about men) for uncorroborated offences that, in some instances, are alleged to have taken place before the introduction of decimal coinage, before they put a man on the moon, before England won the World Cup, before the Beatles. That we have allowed this moral panic to so consume us is a national disgrace for which we should all hang our heads in shame. And yes, it is the handiwork of the police, the lawyers and the Courts, all of whom have the blood of the innocent on their hands.  But the journalists must also take their share of the responsibility: for theirs is the sin of omission.  And that applies particularly to the journalists at the BBC who, although best placed to get to the truth at the heart of the Savile affair, have, as Sunday’s lamentable effort so amply demonstrates, insisted on looking the other way and in so doing have helped to send others to a living hell.

Chris Saltrese
8 October 2013
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