Archive for the ‘ Prosecution ’ Category

Some deserving messengers…

Belying the parting shot (literally!) at the end of my last post, here are a few interesting articles regarding the DSK case or rather, now it’s been dismissed, the ‘affair’. 

  • Clyde Haberman, who writes a blog hosted on the New York Times website, gives a stern but fair account of the unravelling of the case, both regarding the legal proceedings but also the wider context of what has happened, or seems to have happened… 
  • This article in the Independent is a more emotional account of why rape victims must have flawless past to get justice. It’s not just because of procedure governing the criminal trial though, and has much to do with the way rapists ‘pick’ their victim in the first place (hint: it’s not the ‘pretty’ or ‘sexy’ ones…). This is an important and rarely considered point, though the way Joan Smith applies it to the DSK/Diallo case is not exactly fair to the prosecutor. She asks: 
Are prosecutors really saying that anyone who has lied on an asylum application cannot be considered a credible witness in an unrelated matter, no matter how many years later and regardless of forensic evidence supporting their claims?
Although she obviously sees this as a rhetorical question, it is in fact not what the prosecutors are saying in their decision… If that were the case, it would indeed
be setting the bar too high, as well as sending a message that some potential victims cannot expect the protection of the law.
  • And, finally, from across the smaller pond, an article (in French) by an American lawyer reminding all those envious of such an expeditious and seemingly fair criminal justice system. Not only was a powerful and influential man arrested within a few hours of his being accused of rape by a chambermaid, but in four months, and after only a few days in prison, the case was resolved. However, as Mr Greenfield reminds us, it is 
but another example of a horribly imperfect system, upon which many lives depend, which has just had the good fortune of working well this time…

All’s fair in sex and law?

I’m going to make a wild assumption here, and guess that most of you won’t have read the ‘Recommendation for Dismissal’ filed in the case of the People of the State of New York against Dominique Strauss Kahn… And to be honest, it feels like many journalists haven’t either.

Which is a shame though, as it makes for a very interesting and instructive reading. It is hard enough to get any sense in stories of rape accusations, and even more so when there are politics and power involved. Which is why the motion to dismiss is impressive in its clarity and pedagogy to explain why the charges against Mr Strauss Kahn were dropped, point by point.

The proceedings

The initial important thing to remember is that nothing has been decided. The dismissal of the case does not indicate guilt or innocence, it merely indicates that there is not enough reliable evidence to put the case to a jury. The case can always be opened again one day if new evidence comes to light, or indeed if the complainant decides to bring a complaint in France.

However, in the meantime, the charges are dropped, and now that the court of appeal of New York has rejected the request for a ‘special prosecutor’ to be appointed, DSK will soon be free to go as he pleases, which will probably be back to France.

But what of the evidence you might say? Hasn’t Ms Diallo been vilified because she happened to have lied years ago on her asylum claim and she kept dubious company? Isn’t the physical evidence overwhelming, including vaginal bruising, semen and DNA samples around the suite and even blood?
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The rape of humans

This Sunday morning, thanks to my empty fridge and bad shopping, I had to venture out for breakfast and came across a fascinating and harrowing article over my cup of coffee. An occupational hazard of working on sexual offences is having to read accounts of fairly harrowing stuff on a regular basis and I do sometimes wonder whether I might become a little jaded by it all. Yet every now and then, something happens to remind me both of the fact that I do care and of why I do what I do.

And my Sunday morning reading was just one of those moments. The article deals with the issue of the ‘rape of men’, and how it affects war-ridden countries and I highly recommend reading it (though you might not want to read it over breakfast, or any meal for that matter). It’s not just the account of what is done to these men that will knot your stomach, but also the account of what happens to them afterwards and how the victims seem condemned to a life of pain, physical, psychological and emotional excruciating pain.

As the article points out, the issue of male rape is a little considered issue, and this is true both in terms of war crimes but also regarding sexual offences in general. The rape of a man was only recognised in English criminal law in 1994, the same year that the courts (finally) held that non-consensual sex between husband and wife was still rape, even if they were married.

The legal formulation stays clear of any gendered approach and relies instead on the physicality of the act. Because rape can be committed by anal penetration, then it can be committed against men. This is one of the many ways the concept of rape has changed drastically over the last century or so. From ‘stranger-rape’ to ‘date-rape’, from vaginal penetration to anal or oral penetration and from female to male victim.

Maybe the next step is a more radical and even more important shift in our understanding of rape. Namely that it isn’t to do with sex or attraction at all. That it is about power, coercion and violence rather than sexual desire, and that it’s that behaviour as imposed on others which needs to be condemned, punished but also better understood.

This does not mean that an act of rape or sexual assault is the same as any act of physical violence, but rather that the sexual element of it is a consequence rather than a cause of the act itself. In the article, we hear from men who are highly traumatised by what happened to them, some even suicidal. The impact of being raped on these men is not just the act itself and the physical repercussions. It’s also how they are treated when they get back home, by their wives, their doctors and society in general.

The violation of one’s intimacy and sexual integrity, followed by a dysfunctional social response is what makes these crimes truly terrible. This is the same whether the victim is male, female or indeed a child, and it is the same if the act takes place in war-torn Africa, a dimly-lit park at night, or in a conjugal bedroom.

And so maybe we should stop fooling ourselves that raping someone is about sex: it’s just another, terrible way to hurt someone, which has incredibly traumatic consequences. And maybe if we do so, then we might realise that the problem here is violence, not sex. And while this will unfortunately not stop all rapes, it might just make things a little easier for the human victims of it…

Home, Reasonable Home?

If I was slightly more cynical, I would almost be tempted to believe that all the fuss and repeated gaffes over the Legal Aid and Sentencing Bill was a way to distract from the massive and dangerous cuts to the legal aid system.

First, the ‘rape might not always be as serious as other types of rape’ non-debate, then the accidental publication of the bill on Tuesday morning, and the expected U-turn on the 50% sentence reduction for early guilty plea. And just in case that wasn’t enough to catch one’s attention and make our collective heads spin, David Cameron then stepped up to provide some distraction, in the popular and populist form of “Grrrr! Look at me I’m tough and not at all soft” posturing. Or, as John Humphrys elegantly put it this morning, “willy-waving”.

(the video link is here – apologies for unwanted and scarring mental images…) 

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A Striking Balance

An interesting interview in the Guardian yesterday with Keir Starmer, head of the Crown Prosecution Service and therefore in charge of who gets tried for what crime in England and Wales. He talks in particular about the guidance that the CPS has issued as part of a consultation on whether a woman who retracts a claim of rape should be charged with perverting the course of justice when there is a history of abuse with the accused.

A broad enough measure of compassion?

image courtesy of Joe Gratz, via

This consultation (which is open until May 6) was prompted by a case a few months ago where a young mother was jailed for a few months after she was found guilty of perverting the course of justice. She had accused her husband of rape, only to withdraw her claim later. This ‘false retraction’ had led to her being sentenced to prison, despite the fact that the court accepted she had suffered abuse at the hand of her husband and had withdrawn her claim because of pressure from him.

Although the court of appeal ‘freed’ her, it did not quash her conviction. This means that she is still guilty of a criminal offence of ‘perverting the course of justice’, but that her sentence was reduced to a community sentence with a two year supervision order instead. As the aptly named Lord Judge put it, the court should have showed a “broad measure of compassion” for a woman who had already been “victimised”…

While the result is undoubtedly just, one can’t help but wonder whether it is just enough, as she is still held to be a criminal for giving in to the pressure of her abusive husband.

Only false accusations to be prosecuted

Mr Starmer’s reaction to the case was to announce that all similar cases of rape retractions in situations of domestic violence would be reviewed by him personally. But he thankfully didn’t stop there and the CPS has now produced a consultation about its interim guidance on such cases…

The most striking characteristic of this guidance is that women who falsely withdraw claims of rape will now only be prosecuted if the initial claim was false or malicious and not if the allegation was true but withdrawn for personal reasons. This position is reinforced by the instruction that to prosecute someone for falsely retracting rape claims will therefore only be acceptable if it can be proved, to the criminal standard of proof (ie beyond reasonable doubt), that it was falsely made in the first place.

This means in practice that women who have claimed that their partner has raped them but later withdrawn a claim, whether because of the abusive nature of the relationship or for other personal reasons, will not be prosecuted and held criminally responsible. If there is enough evidence to show the accusation of rape was false in the first place, then the CPS will consider whether it is in the public interest to bring that person to justice. This will not always be the case: in a recent case where a 14 year-old girl wrongly accused a 14 year-old boy of having raped her, it was found that a trial would not be in the public interest and all charges were stopped.

Balancing Act…

image courtesy of Bryan Gosline via

This test strikes a much better balance regarding the responsibility of women who withdraw rape claims. By allowing the conviction to stand, the Court of Appeal’s decision means that a woman was made a criminal for giving in to the pressures of an abusive partner. This would make women in her situation partly responsible for the abuse she receives, a position which is untenable and unfair. By stating clearly that such women are not committing any criminal wrong but rather are still to be protected by the criminal justice system, the CPS shows that its commitment to fighting domestic violence isn’t all talk and no show…

Pervert Etiquette

The Duke of York’s unfortunate social agenda has hit the headlines recently, from the offspring of dictators, to Arab sheikhs and other unsavoury characters… One ‘friend’ in particular has excited much attention from the media: Jeffrey Epstein, american billionaire (or is it millionaire?) playboy.

The press has used many titles when referring to this gentleman, yet one must be meticulous when discussing royal relations. And so I’ve found myself wondering: what is the adequate etiquette and should Mr Epstein be referred to as a convicted sex offender, a paedophile or just a plain pervert?

What’s in a name?

The term preferred by the tabloids seems to be ‘paedophile’, although it should be pointed out that this is not a legal term, more of an honorific title I guess.

As a medical diagnosis, paedophilia is typically defined as a psychiatric disorder in adults or late adolescents (persons age 16 and older) characterized by a primary or exclusive sexual interest in prepubescent children, which generally means 13 years or younger. So a paedophile would be someone who has been diagnosed with having these particular urges, although he or she might not have acted on it.

As a journalistic diagnosis (generally of the tabloidistic speciality), the definition of the term seems to be slightly different and a paedophile tends to be male, middle aged and sexually attracted to children or teenagers.

As a legal diagnosis, there is no such thing as a paedophile, although one can be convicted and sentenced for ‘child sex offences’ for certain sexual interactions with children. As it turns out, our distinguished subject has not been so far convicted of sexual abuse against a child, though he is a convicted sex offender.

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Prison, Blue Skies and a Desert Island…

Desert Island Discs is not where I expected my inspiration to come from for my next blog post. Yet, listening to the inspiring Dame Anne Owers on the show last friday, I was struck by something she said about why we put people in prison:

If we think about it more deeply, what kind of example do we want to model to people whose own behaviour have often been seriously deficient? Do we want them to come out of prison thinking that if you have power over people then you can use it to make them feel humiliated? Or do we want to put before them a different way of behaving? That’s not about being nice, it’s about making demands, it’s about challenging and it’s about trying to change people.

Listening to her reminded me of an idea that’s been at the back of my mind for a while: when it comes to crime and how it is being dealt with within society, no one seems to be thinking outside the box. Most of the ideas floating about in the debate on crime are just slightly different versions of the system that we have now: responsibility if you do something wrong, punishment for having done something wrong, prison as a form of punishment, and more punishment if necessary further down the line…

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