Girls behaving badly
The dubious rape cases now reaching court call for a re-thinking of complainant anonymity.
The UK government and the public prosecution service are currently struggling to increase the numbers of rape convictions. But the dubious cases already reaching court should cast doubt on official aims.
In December 2002, Baron Bloom, a 27-year-old property tycoon and playboy, was convicted at the Old Bailey of indecently assaulting a 15-year-old girl (‘Ms B’). The jury could not agree on another charge, of indecently assaulting a 14-year-old (‘Ms A’). The prosecution may seek a retrial (1).
Ms A had told Bloom she was 18. In court, she admitted lying about her age. She also admitted bombarding Bloom with letters, emails, cards and flowers after he took her out (2). Later, after he broke off the relationship, she emailed him: ‘Ha ha ha, heard you have gone bankrupt…. If all Jewish people are like you Hitler should be made a saint. I feel embarrassed to have ever known you.’ (3)
What was Bloom convicted for? Apparently, one night Ms A and Ms B went out with Bloom and his friends to a Mayfair club. Ms A got so drunk on champagne that she collapsed and had to be taken to hospital. Afterwards, she and Ms B went to Bloom’s flat, according to press reports, ‘because it was too late to go home’. There they undressed, and went to bed with Bloom and his friend. Bloom’s offence was to fondle Ms B, who complained that she was too tired. The girls later declined to appear at the Old Bailey, and testified against Bloom by video-link (4).
However discreditable Bloom’s behaviour, is an indecent assault conviction really warranted in these circumstances? You don’t go out on the town with someone at his expense, insist on going back to his place, take your clothes off and go to bed with him and his mate, and not expect some sort of sexual advance. These girls weren’t prepubescent children – nor could they plead sexual ignorance.
In fact, it’s remarkable that a prosecution was brought at all. Ms A and Ms B invited sexual attention. Yet it seems that no matter how provocative or misleading a girl’s conduct, objectively speaking, she must be absolved of all responsibility.
Current orthodoxy assumes that women are entitled to, and indeed should complain to authority figures about sexual misconduct by others, whatever the context. But in the move to ‘support victims’ of sex crime – or, as it’s now more ambiguously called, ‘sexual victimisation’ – few seem willing to consider whether official intervention can do any good, or is even justified.
Interestingly, the numbers of women said to have undergone ‘sexual victimisation’ do not always meet official expectations. For instance, the 2000 British Crime Survey found that 32 out of the 6944 women surveyed were raped in the previous year. Because of this tiny number, Home Office researchers combined the figures for 1998 and 2000 for analysis. Yet only 60 percent of female rape victims called their experience ‘rape’, and only 70 percent of women who described themselves as the victim of ‘attempted rape’ viewed this as a crime (5).
Thanks to official policy, we are becoming inured to the spectacle of men in court facing serious criminal charges, despite the ostensibly consensual conduct of some complainants. In summer 2002, the snooker star Quinten Haan was acquitted of raping a 21-year-old student. She had accompanied him back to his hotel suite, after he met her in a bar. She allowed him to start removing her clothes, sat astride him, and didn’t resist intercourse. She later told the court that this was because ‘she didn’t like conflict’ (6).
Haan’s acquittal led to pleas for men accused of such crimes to enjoy the same anonymity as their accusers, unless convicted. Official policy, first mooted in 1975 after a nasty gang-rape case called Morgan, is that complainants of sexual assault should be guaranteed anonymity (7). The argument is that the public interest in investigating and prosecuting serious sexual crime outweighs the normal rule that justice should be done in the open.
Men consistently object that the present regime leaves them with one hand tied behind their backs: they get all the adverse publicity, while the complainant remains anonymous, even if there is an acquittal.
I have staunchly defended official thinking in the past. I now believe we should rethink some cherished assumptions.
The premise underlying complainant anonymity is that there are lots of serious sex crimes just waiting to be uncovered, if only their victims could complain anonymously. But this has created unrealistic expectations. While increasing numbers of women are now coming forward with complaints of rape and sexual assault, convictions in rape cases have fallen by 77 percent (8).
Debate rages as to why this is so, though at base the problem seems to be one of proof. Research has shown, for example, that cases in which complainants are injured stand a better chance of success (9). In March 2002, a senior defence lawyer (who is also a part-time judge) complained that police and Crown prosecutors were proceeding with ‘ridiculous’ cases (10).
During the past 25 years, there has been a seismic shift in sexual attitudes and in the position of women. The argument for complainants’ anonymity now looks weak. Justice is not done when court time is taken up by anonymous complainants whose behaviour is, to say the least, ambiguous.
Why shouldn’t publicity be a legitimate means of deterring unrealistic complaints? I’m now attracted by law lecturer Helen Reece’s argument, that the law should treat complainants of sexual assault the same way as complainants in other criminal matters (11).
If women want equality, we must accept that this extends to all walks of life – including having to identify yourself when you testify against someone who may face jail if your evidence is believed.
If this reduces the number of cases reaching court, so be it. If would-be complainants decide that going to court is too much hassle, that is a decision they are entitled to take. It should not be seen as a failure of the criminal justice system.
Barbara Hewson is a barrister at Hardwicke Civil
In the glare of justice, by Helen Reece
Rape law: against anonymity, by Helen Reece
Who sets the boundaries on sexual behaviour?, by Sara Hinchliffe
(1) ‘Tycoon groped girl of 15’, Mirror‘; ‘Playboy guilty of sexual assault on schoolgirl, 15’, The Times (London); ‘Sex Crime playboy faces jail’, Evening Standard, 21 December 2002
(2) ‘”Love” of girl, 14, for playboy’, Mirror
(3) ‘Playboy “thought girl was 18″‘, Evening Standard, 17 December 2002; ‘Sex case playboy takes stand’, Evening Standard, 18 December 2002; ‘London playboy “forced sex on girl”‘, Evening Standard, 16 December 2002
(4) ‘Playboy guilty of sex attack on girl’, Independent, 21 December 2002
(5) Home Office Research Study 237, Rape and sexual assault of women: the extent and nature of the problem 2002; Figuring out consent, by Josie Appleton
(6) ‘Snooker star “raped student at Savoy”’, Evening Standard, 24 June 2002
(7) Heilbron Committee (1975); DPP v Morgan  AC 182; Sexual Offences (Amendment) Act 1976 section 4(1). And see Criminal Justice Act 1988 sections 158(2), 170(2); Sexual Offences Amendment Act 1992 section 2; Youth Justice and Criminal Evidence Act 1999 Schedule 2, para. 8(4), (5)
(8) ‘Date rape: the facts’, Observer, 27 October 2002
(9) Lorna Smith, Concerns about Rape, Home Office Research Study No. 106 (1989); Sharon Grace et al., Rape: from recording to conviction, Home Office Research & Planning Unit Paper No. 71 (1992); Sue Lees & Jeanne Gregory, Rape and Sexual Assault: a Study of Attrition (Islington Council, 1993); Jennifer Temkin, Rape and the Legal Process (Oxford, 2002) p28-30
(10) ‘Lawyer: Too many women cry rape’, Evening Standard, 12 March 2002
(11) See In the glare of justice and Rape law: against anonymity, by Helen Reece
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