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Thursday 17 January 2019

10 minutes read time

Diary of a consent lawyer

#MeToo has given many more the confidence to report sexual offences. Yet conviction rates remain low. After a ThinkIn on The Future of Consent in November last year, we asked a lawyer to catalogue her thoughts on the system’s struggle to cope with change

Reports of sexual offences have tripled in the past decade. Global publicity surrounding Harvey Weinstein and the #MeToo movement has created an environment in which women and men feel more empowered to disclose allegations of sexual offences and harassment. Yet more than 80 per cent of sexual offences go unreported and victims remain reluctant to put their faith in the criminal justice system. Conviction rates for sexual offences are still low. A consent lawyer dealing with the issues and grey areas surrounding the prosecution of sexual offences opens up her diary to give us an insight into how the legal system is coping.

November 14

I was meant to start a trial today which was going to last the week. The victim is a 13-year-old girl who was sexually assaulted by her father. When she was interviewed the police officer didn’t clarify the number of times she was assaulted and whether it happened before or after her 13th birthday. As a result, it allowed the father to negotiate lesser charges and he ended up with a suspended sentence. His card is now marked but my overwhelming feeling was that justice hadn’t quite been done.

The first step taken by police when someone reports a sexual offence is to invite them to take part in a video recorded interview. The video, called the ABE (Achieving Best Evidence), is played as the complainant’s evidence during trial. It’s designed to get an account as quickly as possible in comfortable surroundings. Generally police interviewers are well trained and help guide the complainant to provide a clear account in difficult circumstances but in this case the interviewer overlooked the significance of the girl’s birthday. The charge for sexually assaulting a girl under 13 attracts a significantly longer sentence.

It’s the third case I’ve had this year where limited legal knowledge of the interviewer has affected the prosecution’s ability to bring a case. Officers are getting the basics right but more training is needed for complex cases.

November 15

Today I dealt with a case where a man is facing trial for grooming a teenage friend of his daughter and having a ten-year affair with her in the 1980s. The complainant in this case said she felt able to make the allegations following the trial of the Australian entertainer Rolf Harris, who was convicted of similar offences in the UK. I’ve witnessed a huge increase in the number of these types of cases in the last few years. In my experience, late reporting used to be a factor held against someone but it’s so commonplace now and, in the cases I’ve worked on, the historic ones even seem to have a higher conviction rate.

The trial was due to start next week but can’t because the lift at the Crown Court isn’t working and the defendant is in a wheelchair. Calls were made to two local Crown Courts to see if they could take the case. Amazingly, neither could take it as their lifts were also out of order. The trial couldn’t go ahead and was put back to spring 2019. I really feel for both sides whose lives are put on hold like this.

November 16

On my way to court today I read that Irish politician Ruth Coppinger took a lace thong to the Dáil today to shine a spotlight on how stereotypes continue to be used against victims in rape trials. She was protesting after a barrister invited a jury “look at the way” a teenage rape victim was dressed: “she was wearing a thong with a lace front”. The suggestion was she must have been up for sex and therefore consented. I was really surprised this line of argument was even allowed by the judge. English courts are much better at dealing with dangers of stereotyping although that’s not to say it isn’t still an underlying problem. Until fairly recently it wasn’t unheard of for lawyers and even judges to suggest a provocatively dressed woman was “contributory negligent”. But much has changed in the past ten years, and the Crown Court Compendium instructs judges how to direct a jury in order to “guard against making unwarranted assumptions”.

November 19

Today I was dealing with pre-trial hearings involving men accused of sexually assaulting women on the London Underground. According to the detective helping me at court the reporting of sexual assaults on public transport is up by about 75 per cent following publicity surrounding the #MeToo movement and a campaign called “Report it to Stop It”. As someone who travels alone on public transport at all hours of the day this figure is really encouraging although the lawyer in me worries how the courts are going to cope with this new wave of allegations. The officer thinks this only scratches the surface. He is currently dealing with 62 pre-charge cases, including one that took place 35 years ago and was dismissed as horseplay at the time.

November 20

I have been instructed to prosecute a rape case involving minor celebrities. It will be a big case and I’m really pleased to have been asked to do it. Part of the work on the case involves trawling through the phones of the parties involved. The task is huge and the Crown Prosecution Service (CPS) is suggesting I do it as part of the usual case fee, i.e. unpaid. The CPS says they don’t have the budget to pay me for this extra work. It’s part of a wider problem of the criminal justice system struggling under the weight of evidence from digital devices. Prosecuting organisations are considering using artificial intelligence to work on large-scale review tasks. It’s difficult to see how a machine can undertake the sensitive task but equally difficult to see how stretched resources and manpower can do it either. Cuts of 40 per cent have left the system on its knees and there are concerns that miscarriages of justice are taking place.

November 21

Today was spent looking at the phone material. There is so much to review and it’s going to take considerable time. I always like looking at phone messages as it’s like a window into someone else’s life. Reading through this one has been an eye-opener. Reading the competitive WhatsApp chat between the two defendants and friends has been an education into how some men talk in private. While trying to make allowances that the parties are young and immature, the content can only be described as filthy, and the utter disrespect for the large number of women they’re having sex with is breathtaking. It’s left me feeling disillusioned about millennial men who I’d previously thought had more enlightened attitudes to women.

November 22

Continuing my review of the material, I’m reminded of a case earlier this year involving some Irish rugby players. Similar group posts included a reference to the alleged gang rape – “What the fuck was going on? Last night was hilarious” – and comments such as “Any sluts get fucked” and “Pumped a girl with Jacko on Monday”.

I have male friends who complain to me that men are being made the enemy and they feel they can’t even put their arm around a girl these days. I have some sympathy for those who feel overwhelmed and on the back foot as a result of the #MeToo movement. However, this kind of chat shows there is still a long way to go in challenging attitudes towards women. The number of wrongful convictions is tiny in relation to the vast majority of sexual offences that go unreported or un-convicted. For me, the conversation isn’t about making men the enemy; it’s about respect and equality, which there’s absolutely no evidence of in these messages.

November 23

Today, I was meant to be starting a trial in a case that makes me think of Hitchcock films. It involves a man who is prevented by way of a SHPO (Sexual Harm Prevention Order) from dressing up in female clothing and sexually assaulting women in public places. To try and get around this he’s been carrying a woman’s fur coat, which he’ll put on just before offending and then take it off afterwards. At the last minute, the defendant pleaded guilty. A further term was added to his order “not to approach lone women in public” but it’s difficult to see how further terms are going to prevent this repeat offender. It’s one of a number of cases I’ve had recently where men in their 50s or 60s are masturbating in public due to mental health issues. Often they have problems that aren’t serious enough to warrant hospital orders but which aren’t being treated adequately by community sentences or custody.

November 27

This morning on the way to court I listened to a new podcast series by Edwina Grosvenor called Justice featuring one of my pin-ups, Helena Kennedy, a barrister, author and member of the House of Lords. She has written an excellent book for the post #MeToo era called Eve was Shamed about women and the Criminal Justice System. She concludes in spite of many positive changes women are still being let down.

I was struck that Kennedy compares the wave of women making sexual allegations via social media as a form of civil disobedience, happening because they feel the system lets them down. As a lawyer this is worrying, trial by social media might be the easy option but it’s not real justice. Our system has its flaws, is slow in reflecting contemporary attitudes and is being eroded by cuts. However, I believe the flaws are human rather than institutional and there have been huge changes over the past ten years to help make the process much easier for those making sexual allegations.

November 28

Last month I prosecuted a trial in which the defendant was convicted of inciting his six-year-old stepdaughter to rub his penis with her foot when he put her to bed. She was an excellent witness in spite of her young age and the case is an example of how a credible account can lead to a conviction without the need for supporting evidence.

The defendant had a foot fetish, which was documented on his phone with extreme pornography of high heels, red nail varnish and testicle injuries. At trial, the judge refused an application to show this foot fetish to the jury. He decided it would be prejudicial as it didn’t show a tendency to engage in sexual activity with children.

Today I’ve been considering if the defendant should also be prosecuted for possession of these extreme pornographic images. The defendant said they were sent and received as part of a WhatsApp group at work and claimed he hadn’t opened the majority. I suspect it’s not uncommon for extreme images to be shared for the shock value. If so, a word of warning: possession of extreme images depicting injury to genitals or sexual intercourse with animals attracts a custodial sentence of a year. In this case, it didn’t seem to be in the public interest to have another trial for the images, since the defendant will get an eight-year sentence for the offences on his stepdaughter.

December 5-7

I had to take the last few days off because of a winter bug. I’d normally try and keep going but this is a bad one. Being self-employed and knowing how much a day in court costs, barristers rarely take time off even when feeling awful. I remember when I started my mentor broke off a cross examination to be sick in the loo, then carried on where he left off.

A bit of time in bed has given me a chance to read the reports on a major new survey commissioned by the campaign group End Violence Against Women dealing with public attitudes and understanding of rape and sexual violence.

The findings suggest that a quarter of adults don’t think marital sex without consent is rape. The marital rape exemption was abolished in 1999, it seems the public has been slow on the uptake. Whether you’re in a long-term relationship or having a one-night stand, a person who has freely chosen to have sexual activity with another person once does not give general consent to sexual intercourse with that person on any other occasion.

One third of men also thought that a woman couldn’t change her mind after sex started. It’s a worrying statistic not only for potential victims of these attitudes but also because the public makes up our juries. Consent may be withdrawn at any stage during a sexual encounter. Earlier this year I dealt with a case where a woman pleaded with her partner to stop, as intercourse had become painful. He didn’t and was rightly convicted of raping her. Consent can also be conditional on the use of a condom or the man not ejaculating; consent is about a person’s freedom to choose, whatever stage of the sexual encounter.

The diarist has chosen to remain anonymous in order to prevent any identification of the cases and victims.

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