Saturday 25 August 2012



Last week was dominated by discussion of the crime of rape, prompted not just by some out the appalling comment from supporters of Julian Assange but also by the, frankly, deranged remarks of would be republican Senator Todd Akin.

Now it is in the nature of blogging that it is sort of predicated on commenting instantly. To the extent that I'm rather after the event on this that is not because I'm only now getting round to it. In fact, I started writing this on Thursday. It has however proved an exceptionally difficult task, not least in attempting to ensure that the analogy I seek to draw does not appear to trivialise or devalue the crime at the heart of my discourse. I'm not sure, even now, that I have entirely succeeded. I can only hope that it is accepted that I have proceeded with the best of intentions.

Some thoughts on the classification of crime.

Inevitably, crime comes in various degrees of severity.

Everybody would accept that a punch on the nose after a pub argument is a less serious assault than a premeditated attack with a baseball bat. That it is more serious to break into someone's house while they are asleep than to dip their pocket for a wallet.

Now, you don't do my job for as long as I have without seeing just about everything there is to see about the crime of rape.

It is commonplace on the internet to claim a wealth of experience before writing about any subject. I don't claim that. I could certainly write with more confident personal experience about the misconceived aims of the Misuse of Drugs Act. Nonetheless, over the years I've represented a significant number of men charged with rape. And not one of them has been the archetypal lurker in the bushes.

I've no doubt that such "lurking" crimes do happen but to suggest that they are typical examples is as absurd as suggesting that the "typical" murder involves the sort of pre-meditation and motive that you see on Inspector Morse. Most rapes are like most murders. Drink is involved (something from which lessons themselves might be learned). The victim, if they were being honest, would, with the benefit of hindsight, have conducted themselves more carefully on the night in question and the perpetrator is not neccessarily an inherently evil person, just someone who, in particular circumstance has behaved in a wholly unacceptable manner.

I've also got plenty of experience on the other side. Not just in handling Criminal Injuries claims but as a corollary to so much domestic violence in a way that is not yet, in my opinion, fully discussed in the public domain.

And, for the sake of completeness, I should also say that twice, memorably on both occasions, I have represented women who have made (by their own subsequent admission) false allegations of rape: the first when trapped between family expectation and the truth of how she herself, in the hormonal excess of youth, had behaved; the second, albeit against a background of mental health issues, in a quite considered and malicious manner.

So, I have no illusions about these matters. Legally, rape is a messy crime. The essential actus reus (as we lawyers put it) is an activity routinely engaged in voluntarily. No sane person, on the other hand, has ever consented to being stabbed with a table knife or hit over the head with a Buckfast bottle.

But rape is a serious crime for good reason. And in all circumstances.

Obviously the victim of the lurker rapist suffers a traumatic experience. Any common assault by a stranger is traumatic enough. But when some seek to categorise that as automatically a much worse ordeal than a rape  perpetrated in a social setting by someone already known to the victim, it seems to me that they misunderstand the consequence of being the victim of crime.

Now here such is the eggshell territory on which I tread that it's important that before proceeding I acknowledge that the victims of crimes of dishonesty are seldom as seriously harmed as the victims of crimes of violence. "Who steals my purse, steals trash" as the Bard has it. Nonetheless, I would like to draw comparison with two other crimes: Street robbery and embezzlement. Both are thefts. One might involve a few seconds, a punch to the face and the forcible deprivation of your property. Terrible as a victim. But is it any worse than someone being embezzled of money, usually by someone in whom you have invested trust over a long period of time?

Not in my opinion, because even though in the latter case there has been no violence, there has been something worse, a breach of trust. We all conduct our day to day activities on the assumption that those around about us will conduct themselves within certain perameters of trust. Once that trust is broken then it is broken not just in relation to a specific individual, it is broken in relation to the world as a whole. So just as embezzlement undermines that trust in a way against which the amount actually stolen by the particular crime might, to the world, appear trivial, so does, in the aftermath of rape, a similar breach of trust leave behind a constant fear. A fear that if, in future, you do have too much to drink, or are not constantly on your guard as to who you might flirt with, or even with whom you might engage in a kiss or a cuddle, then a very unpleasant experience indeed is likely to be repeated. And that absence of the assumption of trust is surely more difficult to overcome than the idea that you might, logically improbably, on some future date be attacked by a (different) complete stranger.

But there is also something else which makes the victim of street robbery and the victim of embezzlement subject to different but not necessarily a relatively more or less unpleasant experience.

There is nothing personal about street robbery. Its perpetrator holds no individual animus towards its victim. But embezzlement, by its very nature, requires the perpetrator to know the victim. Indeed to be trusted by the victim, indeed often to enjoy the assumption that the perpetrator and victim are friends. In the aftermath of that crime the sufferer will find themselves wondering what they had done to deserve such animus, possibly even wondering if they had somehow brought the crime upon themselves.

So, equally, does the victim of rape at the hand of one already known to them and, probably, trusted at least to the extent of giving rise to the circumstance in which the crime could be committed at all.

No two crimes are the same and there is aggravated rape, I defy anyone to say otherwise. The use of extreme violence; the repetition and/or duration of the crime; the abuse, perhaps, of a position of authority in its perpetration; the exact nature of the sexual assault. These all have the effect of escalating the seriousness of the crime.

But the assumption that rape "in a social setting" is automatically less serious than the attack by the eponymous "lurker" seems to me to be a wholly fallacious one. And the assumption that a crime committed in the former circumstance might not be a crime at all is an utterly unacceptable position.

That does not mean that each of these crimes will be as easily proved beyond a reasonable doubt, as must surely remain the case.

As I write, Julian Assange is innocent. He has been charged with nothing. He is merely wanted for questioning. And even if charged, he will remain innocent unless proven guilty. In that latter regard, bluntly, as a lifelong defence lawyer, I would relish the prospect of cross-examining the complainers against him, given the alleged facts as to their subsequent, ex post facto but pre complaint, conduct. And, as I've tried to demonstrate empirically above, I certainly would not start such a defence from the assumption that false allegations are without precedent.

But, and this is the but, if these women are telling the truth, let us be in no doubt that a crime, a serious crime, has been committed. Not the "crime" (for it would be no crime), of consenting to sexual relations which they later regretted, but rather the crime of being forced to engage in a sexual activity to which they had never consented in the first place.

Now even that, and I don't apologise for saying that this, is likely to have been a significantly different experience than being jumped on out of the bushes by a complete stranger. But then so, as I've said above, would have been being knocked over and robbed in the street as opposed to, for example, learning that the golf partner to whom you entrusted your life savings has decamped to South America. Nonetheless, on each occasion, surely nobody would seriously argue that the law had not (allegedly) been broken. And on each occasion that the victim would have been....a victim.

So let's not underestimate the difficulties, in certain circumstance, of proving this most difficult of crimes. But let's not stop trying.

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