ANONYMITY AND RAPE

Google is back in the limelight, for all the wrong reasons, and by all accounts they are struggling with even the most basic form of protection for their many users.  Their latest problem is the ease with which surfers can discover the identity of rape ‘victims’, aka complainants, if they choose to do so, thereby circumventing the protection afforded to them by the courts.

Anonymity for rape victims, whether their complaints are real or fabricated, remains a lively topic as it has been for many years.  The arguments are well rehearsed, the main one being that rape victims are less likely to report the offence if their identity is known.

For my part, I have never been persuaded of the wisdom of this approach.  The ordeal of reliving the dastardly act in court is the main reason why victims do not come forward, it’s got nothing to do with identity, and on that score, I doubt if the ordeal is made any easier if the jury know the victim as Miss ‘A’ rather than Dolores del Rio.

Men and women regardless of their sexual proclivities are supposed to be equal, and this applies at all levels of life, whether in the workplace or out and about. But in relation to rape allegations, this equality does not apply, as the accused is routinely named and shamed, and has no protection from exposure in the Press, or Social Media, or in a court of law.

The recent cases where wholly innocent men were falsely accused of rape have been fully documented.  The Clown Prosecution Service has, as always, come up with wholly implausible reasons for charging these men in the first place, and I have already commented on this in an earlier blog.  But until these men were formally acquitted, they were paraded in public as rapists, a classic case of guilty until proven innocent.  This public parade was permitted because these men were not afforded the same anonymity as their accusers.  In one case, the young man in question abandoned his university career because of the unbearable strain of being falsely accused and having to wait an eternity before the injustice was righted.

I therefore fully support the lobby which advocates equality in allegations of rape between the alleged victim and the alleged perpetrator until the legal process has run its course.

The other thing I find uncomfortable is the fact that in most cases where the complainant admits lying, nothing is done about it, despite the fact that on any view, she is guilty of attempting to pervert the course of public justice. And to make matters worse, her anonymity runs for the rest of her miserable life, pace such help as Google can unwittingly provide.

This approach cannot be right, it certainly cannot be fair, and it brings the criminal justice system into disrepute.  I therefore propose that a senior judge should consider the question of continuing anonymity, and it will be for the ‘victim’ to show cause why this protection should remain.  Were I in loco judiciaris, I would need a lot of persuading.

TIME TO GO

She lacks judgment, she commands very little respect amongst her peers, she frequently calls the wrong shots, and when she does, she offers no apology, only lame excuses.

No, I am not referring to the beleaguered Theresa May, but to Alison Saunders, the equally beleaguered Director of Public Prosecutions and the star comic act in the Clown Prosecution Service. Indeed, if it were not so serious, it would be laughable.

Within a few short weeks, dozens of revelations about the failure of the prosecution to disclose important evidence to the defence which even an idiot would know might undermine their case have come to light, and in some egregious cases, too late to repair the damage. I refer in particular to the case of Christina Bosoanca, who was wrongly charged with human trafficking offences and held in custody awaiting trial for 14 months.  She even had a baby in prison.  The designated judge described the failure of the CPS and the police to make full disclosure as “incompetence or negligence,” an understatement if ever there was.

And so it goes on.  And what is Alison Saunders’ answer to this appalling state of affairs?  She has ordered a review of every rape and serious sexual assault case.  With the Clown Prosecution Service reviewing itself, it’s like leaving the lunatics in charge of the asylum, and with public confidence in the Service at an all time low, it is doubtful in the extreme if the results of the review will bring this shambles to a satisfactory conclusion.

Ms. Saunders does not tell us how many cases will be reviewed, because she doesn’t know, but as a starter, last year a total of 3671 people were charged with rape, and who can say how many were charged with other serious  sexual offences. She can’t.

And it doesn’t end there. What about those convicted and whose convictions may be unreliable because of the failure to disclose?  As I understand it, there are no plans to reopen old cases, because, when asked, Ms. Saunders was to tell us that as far as she knew, and that wasn’t very far, nobody had been wrongly convicted.  Again, I ask rhetorically, how does she know?  Up until a few days ago, she was denying any crisis, it was business as usual, and negligence, or worse still, incompetence, were trademarks of the Service and nothing to get excited about.

In part these potential miscarriages of justice will persist until the CPS mindset changes fundamentally.  I refer to their approach to rape and serious sexual allegations, which is to instinctively believe the complainant, regardless of any other evidence to the contrary  and the absence of any independent corroboration.

Finally, the sentencing regime needs to be revisited, as sentences routinely passed are excessive, and do not fit the crime, but that’s another matter.

David Osborne is the author of several humorous books on the law.  His latest, entitled Order in Court, is now available in all reputable bookstores and on Amazon.

TIME FOR A RETHINK

Here we go again.  Another drink, consent and rape case which featured prominently in the press, and surprisingly, merited half a page in The Times. I suspect this may have something to do with the fact that the accused, now gloriously acquitted, goes to Durham University, was the secretary of the Debating Society, hails from Jersey, as if that has anything to do with it, dresses smartly and has ‘Oscar Wilde’ foppish good looks. All in all, a thoroughly decent young man.

That aside, what depresses me time and again is the ongoing issue of drink and consent which has not been addressed at all since my blog She was gagging for it nearly twelve months ago.  As far as I can tell, Alison Saunders is still the Director of Public Prosecutions, and as far as I can tell, she is still telling her prosecutors to prosecute any drink and consent cases regardless of the evidence if the alleged victim cries rape after the event. In this particular case, the CPS have trotted out the well worn mantra: “Taking all the evidence into consideration, it was decided there was sufficient evidence for a realistic prospect of conviction that it was in the public interest to prosecute this case.”  The jury took less than 3 hours to find the lad not guilty, so how does that square with their statement that there was a realistic prospect of conviction?  It beggars belief.

Consent is not vitiated afterwards simply because the girl didn’t enjoy the experience and wished she hadn’t said yes, but time and again, we hear reports that drunken girls are willingly going with boys right up to the wire, and often beyond, and then crying rape.  The Crown Prosecution Service is primed to believe the alleged victim instead of using their own judgment in highly questionable cases where they should be telling her to grow up and get a life, in the nicest possible way of course.  Prosecuting an innocent person to conviction is life changing, and he becomes the victim.  He will go to prison, he will be placed onto the sex offenders’ register to be monitored indefinitely, and he risks being disqualified from certain types of employment.  The appeal process is slow and cumbersome and designed to uphold the conviction unless it would be compellingly unjust to do so, and those cases are as rare as hen’s teeth.

The debate over anonymity for those accused of rape has opened up, yet again, with the usual suspects, some better informed than others, offering their opinion.  As it happens, I was invited the other day to debate the question of anonymity at Durham University no less, an invitation I have regrettably declined, but it needs debating.  As we say, the jury are out on anonymity for the accused.  The complainant has anonymity, so why not the accused, or so the argument goes.  It barely scratches the surface of the real debate, which is when is it right and proper to prosecute at all, and the CPS mantra needs to be revisited.

In my blog back in February of last year, I caused a furore amongst the strident Feministas when I suggested that where consent was in issue and the complainant was drunk, the accused should not be prosecuted.  Let me qualify this to avoid yet another Feminista verbal firestorm.  The CPS need to take a careful look at their prosecuting guidelines when deciding if it is in the public interest to prosecute.

Far better that the complainant walks away with her reputation and her anonymity intact than one innocent defendant is wrongly convicted.

THE RAPE DEBATE RAGES ON

I was invited onto  a Radio 5 talk show not so long ago, hosted by the ubiquitous Nicky Campbell who, when he isn’t hosting some programme or other of dubious provenance, is extolling the virtues of equally dubious lawyers offering compensation for injury or loss, real or imagined.

Anyway, the subject under discussion and on which I had been invited to comment was the hoary old chestnut of rape and consent.  You may remember my article on this some months ago entitled She was gagging for it, and before I could draw breath, the Feministas and their cohorts were at the palace gates, baying for my blood.  What so excited them was the front page headline in the Daily Mirror which read: “If a woman is drunk, it can’t be rape.”

One of the problems with our instant gratification society is the unwillingness of so many to read beyond the sound bite, and so it was with my article.  Once the dust had settled, many of the more mature comments came from readers who had bothered to read the whole article, and not just the headline.  What I wrote then, and I repeat now, is that drunken consent is still consent, and anybody indulging in sexual intercourse should not be liable to prosecution.

I reminded Campbell and his listeners that the definition of rape included the important proviso that an accused person is guilty of rape if the complainant does not consent AND the accused does not reasonably believe that she consents.  So there is an onus on the accused.  It goes further: whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the accused has taken to ascertain whether the complainant consents.  All this and more is to be considered by the jury when deciding if the complainant has been raped.

Back to Campbell and the subject under discussion.  It was whether or not young people should be required to attend ‘consent lessons’, and a brave and articulate student had written an article in his student rag  stating “I don’t have to be taught to not be a rapist.”  Somewhat lacking in syntax, that’s universities for you, but the message was clear enough.  The lad in question was 19 years old.

He suffered the same furore as me, but as a ‘veteran’ lawyer, at least according to the Daily Mirror, I had broad shoulders and could withstand the brickbats.  For his part, he was subjected to  venomous criticism and appalling abuse at a relatively tender age.   Embarking as he does at the beginning of life in the market place, clutching his totally useless degree and weighed down by enormous student debt, he is fearful that this explosion of vilification will affect his career prospects.

If it helps, he has my unqualified support, not only for saying what needs to be said, but also for refusing to be intimidated against all the odds.  And as for those baying for his blood, shut up and get a life.

PS. Important news hot off the press. Scientists have discovered a drug that can extend the life of old dogs by as much as 4 years. Very good news indeed for all those old dogs in the legal profession still clinging to the wreckage.

STILL GAGGING FOR IT

The firestorm continues apace following my original blog of the same title and the Daily Mirror’s take on it.  Whatever else, it has got people talking about the issues raised in (alleged) rape cases, and most important of all, the issue of drink and drugs. Whilst my remedy for the resolution of this issue was not well received by the majority of women who have commented on it, I remind my readers that there is a real prospect of a miscarriage of justice if the prosecution are allowed to move the goalposts as Alison Saunders is suggesting.  I also remind my readers that a conviction for rape carries with it an immediate sentence of imprisonment, and trying to overturn an unsafe conviction is a protracted and uncertain procedure.

That said, the purpose of this update is to put this lively debate into proportion.  Excluding the Press and the Media, who often work to their own agenda and where truth can be a moveable  feast, the reaction of those leaving comments on my blog has been most instructive.  They divide almost equally along gender lines.  The women for the most part are strident in their condemnation.  According to the Daily Mail, leading the pack is Ms. Sarah Green, director of End Violence against Women Coalition, followed hard on her heels by Ms. Louise Pennington, of the campaign group Ending Victimisation.  By the very banner headlines under which they parade their prejudices, it is unlikely I shall find a balanced and reasoned argument.

The men have a different take on the issue.  I wonder if a brother organisation similar to Louise Pennington’s campaign group, but there to protect men from being falsely accused of rape, might find favour to redress the imbalance.

For the purposes of a headcount, I ignore the expletives and offensive comments, once again from women, which add nothing  to the debate and which have been deleted.  By the same token, I cannot comment on individual cases brought to my attention by men or on behalf of men, who claim they have been the subject of a miscarriage of justice.  I would need to know all the facts before reaching a conclusion.

You can read the comments left on my blog for yourselves and make up your own minds.

Postscript.  It seems that my timely intervention in the casual sex and consent debate is already reaping dividends.  Teenage pregnancies have fallen to their lowest rate since records began more than four decades ago. And it doesn’t stop there. There is a new government initiative to encourage discussions amongst children as young as 11 on difficult subjects such as rape, coercion, drink, and at what point teenagers are capable of agreeing to sex. You can thank me later.