Posts Tagged ‘ @Gdnlaw ’

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 flickr.com

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sentenced to prison, despite the fact that the court accepted she had suffered abuse at the hand of her husband and had withdrawn her claim because of pressure from him.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of rape will now only be prosecuted if the initial claim was false or malicious and not if the allegation was true but withdrawn for personal reasons.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 flickr.com

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…

Crime, Sense and Sensibility…

Yesterday evening, I followed a link to an article tweeted by David Allen Green which just said ‘read this’. And so I did, even though it meant squinting and hurting my eyes trying to read it on my tiny blackberry screen. And so should you, although you should also beware that it might both move you to tears and frustrate you, and not just because of the squinting…

Move you to tears because it exposes the trauma of being raped, the incomprehension and moral questioning that goes with it, as well as the pain. Frustrating too because it opposes raw emotions to a seemingly obvious solution, that the crime should be reported, and hopefully prosecuted.

It seems so simple: of course one should report such acts, it can only lead to something better. Better for the victim who might get justice and hopefully closure, better for society at large as it sends a message that such actions are not tolerated and potentially protects other victims and maybe also better for the perpetrator who might become aware of the pain he’s caused and, hopefully, reform.

But is it so simple? We might find it hard to understand but it’s even harder to ignore the vehemence or violence with which this man refuses all police involvement in his ‘case’. What they see as help he sees as intrusion, and he just wants to “not think about it any more”.

It would be easy to dismiss this reaction as part of the psychological trauma of being raped and insist that justice must follow its course. But, as an academic interested in criminal justice and sexual violence in particular, I see at least two very important points to bear in mind:

  • No matter how you choose to analyse and classify crimes, acts of sexual violence and, a fortiori, rape, are in a class of their own. Whether you believe that they are about sexual desire or pure violence on the part of the perpetrator (another article well worth reading), the effect on the victim is the same: a violation of the most intimate aspect of your physical integrity. Sexual violence might not always be about sex for the person committing it but it always is for the victim, and brings with it particular trauma and psychological consequences. This will inevitably make it a challenge for the criminal justice system to deal with such crimes…
  • From a rational perspective, the only solution is, well, to find a solution to these crimes. And the solution is generally understood to be a criminal investigation, prosecution, trial and punishment if the accused is found guilty. Yet, and this may be hard to hear for people who believe in the criminal justice system, is it always the best way? Are we putting people through the further trauma of a trial in order to satisfy what we believe is best for them, sometimes against their instincts?

Discussions about crime and the criminal justice system are often drawn in black and white, as if it was all so clear and straightforward. Principles, rules, sanctions, but what about emotions? What place, if any, for feelings and emotions in the criminal justice system? Or should justice be necessarily calm and rational in the face of conflicting emotions?

I don’t have the answers and I guess I don’t expect to find some any time soon. One thing I do know though: while I keep looking for answers, I’ll make sure I keep this story that moved me to tears at the back, or even front, of my rational mind…

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