Consent – No Shades of Grey

23 02 2016

Lets set one thing straight from the outset, cases of stranger rape are, I’m pleased to say in my experience, rare.

Sadly the majority of victims know their attackers either as a friend, associate or spouse. This means that the greater proportion of offences that I deal with can come down to consent – the victims word against that of the suspect. This is where all of the extra work to prove a case comes in. Time of reporting after the offence, the medical, injuries, disclosure, forensics, witnesses, corroboration are just some factors in what makes up a comprehensive investigation.

The word consent can be a fall back position for some offenders in the knowledge that it can negate a proportion of the forensic evidence which will support a police prosecution case. If the suspect states that the intercourse was consensual then they may hope that any forensci matter obtained linking them to the offence can be explained away.

Ultimately then there are those matters where it will be one word against the other and it is for firstly the CPS and then potentially a jury to decide whether the consent issue claimed by the defendant is in fact ‘true consent’.

Consent

The Sexual Offences Act 2003 has three important provisions relating to consent, which apply to sections 1-4, namely rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. These are:

1. A statutory definition of consent

2. The test of reasonable belief in consent

3. The evidential and conclusive presumptions about consent and the defendant’s belief in consent

Statutory definition of consent

Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. One question that needs to be answered is whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question. There is no definition of capacity in the 2003 Act.

The question of capacity to consent can be an important issue when a complainant is voluntarily intoxicated to the point of stupefaction at the time of the incident. See R v Bree [2007] EWCA 256

http://www.bailii.org/ew/cases/EWCA/Crim/2007/804.html 

which emphasises the importance of ‘capacity to consent’ in cases when it appears that a complainant has been extremely affected by the voluntary consumption of drink and/or drugs.

Reasonable belief in consent

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps one party has taken to ascertain whether the other party consents. The Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant  has the responsibility to ensure that the other person consents to the sexual activity at the time in question.

The test of reasonable belief is a subjective one with an objective element which is best dealt with by asking two questions:

(1) Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).

(2) If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

Evidential presumptions (section 75)

If the defendant did the relevant act, as defined in section 77 and other elements specified in the Act exist and the defendant knew they existed, then the complainant is to be taken not to have consented. One very relevant circumstance highlighted recently is:The complainant was asleep or otherwise unconscious at the time

The above are the definitions and interpretations covered in legislation. What must take a precedent above all of this is the idea that every person, male and female, has the right to say NO and withdraw consent at any point.

If a person states they do not want to engage in or continue some sexual act then that consent has clearly been identified to the other party. Continue and, well rape is a four letter word but a long sentence.

 





When you wish upon a star

3 04 2014

Bored with the football the other night I happened to switch over and saw a programme on Disney. Now I may be a big rufty tufty hard nosed world weary cop but I have always loved the animation and stories from Disney (as well as going to the parks) and this is because of that little bit of escapism. 

We live in a hard world with many threats and dangers and any bit of light relief should be grabbed with both hands. As a child I distinctly recall the first film I was taken to see by my dad, Bambi. I still watch it with my own kids and it’s got more than it’s fair share of dark moments. Many people look deeply at the content and hidden messages of Disney animation. The latest I heard on the radio yesterday was that Frozen, now the largest grossing animation ever and the tenth biggest earning movie of all time, is that its message is about coming out for gay people. Know what? Does it matter? If you can find something uplifting and inspiring in an animation then is that such a bad thing? 

The whole idea of going to see a film is to get away from reality for a short time. It may be your work, school, whatever.  Films are made to be enjoyed. If they can inspire or make you walk out feeling happier than when you walked in then that can only be a good thing. If they can make you dream and drive you to better yourself then more power to them. For me there is little I enjoy more than sitting with my family living in a different world for a couple of hours and hope one day to do the same with grandchildren. I guarantee everyone has a favourite moment from a film, be it Toy Story to Snow White and most will know the words to the majority of songs as well.
So, if you’ve had another shitty day at work remember to look for the bare necessities of life and maybe they’ll come to you





Cake or Death?

20 03 2014

Tolerancenoun
The ability or willingness to tolerate the existence of opinions or behaviour that one dislikes or disagrees with

There’s this new thing, its called tolerance. Maybe some people need to look it up in a dictionary or have it taught better at school.
I recently watched an old Parkinson interview with Eddie Izzard. I’ve been a fan of Eddie for many years and find his Death Star Canteen along with ‘Cake or Death’ never fails to make me laugh. He was talking about how when he first decided to leave the house in full womens clothing he had timed it so as to avoid a group of lads who used to hang out nearby. Unfortunately on the day in question they had decided to change their times and so he had the choice of backing indoors to avoid them or walking straight through as if nothing was out of the ordinary. He braved it and as he walked between them the only comment that was made was about his multi-coloured leg warmers – apparently it was the eighties! He continues to dress as he wants wearing heels, nail varnish and make up, when he wants to where he wants to. He has suffered abuse and threats but there won’t be many of those who will make a comment about a man in womens clothing who can run 43 full marathons in 51 days as he did in 2009.
I say all this because we like to think of ourselves in England as being a tolerant society. Well I think I’ll disagree a little on that one. As a person whose father came to the UK in 1951 from Singapore I had a fair amount of abuse and name calling as a child. I was also ‘lucky’ in that I wasn’t very tall, (nothing has changed there) and that led to other name calling. Children can be very cruel to each other and can act like a pack of hyenas when they choose to pick on an individual. I can’t say that my response was right, although I have enjoyed boxing now for many years, but I try and encourage my own children to take a more diplomatic approach.
My son used to have long hair which he wanted but due to the name calling he has gradually had it cut shorter and shorter until it is now almost cropped. He likes it and I suspect that it is partly so he can fit in with the others. Those who stand out for whatever reason risk being a target. The same is true for those with glasses, those who appear more studious and even sometimes those with red hair. Regarding the latter, woe betide the ones who take on my youngest for her flowing red locks when she starts school, she will eat them for breakfast.
These issues carry on into adulthood no matter where you are or what you do. As a police officer I know many gay female officers and their partners. I can count only two males that I currently know who are open about their male partners. Is this because of the pseudo-machismo of the role or more about society still? Why is it seemingly okay to be openly gay in the arts than in some other occupations? Similarly things like religion, does it matter what you believe or which deity? It’s a matter of personal choice.
When groups such as EDL or BNP go on about being English surely they must realise that we are all a homogeneous mix of many different cultures and nations? Let’s face it, there’s been Celts, Saxons, Vikings, Normans, Romans and all manner of invaders who have added to the genetic melting pot of this country over the centuries. Add to that the generally accepted anthropological fact that Homo-sapiens originated from Africa thousands of years ago and there really can’t be much difference between any of us.
So bearing in mind that today is meant to be International Happiness Day try and play nice with each other. After all, no-one’s perfect.
Oh, and here’s the Death Star Canteen if you haven’t seen it http://www.youtube.com/watch?v=Sv5iEK-IEzw





Hit me with your rythym stick

12 01 2014

“Do you know that our soul is composed of harmony?” ~ Leonardo DaVinci ~

I was walking the dog on this frosty morning and in a little world of my own listening to The Best of OMD. Now before anyone else feels the need to mention it, yes, I am old and find the only way I have any comprehension of modern bands is due to my kids. People will mock and say how naff some of the 80’s music was, (no one can ever forgive Europe’s The Final Countdown), and like the 70’s which I also lived through, there are some serious question marks over the fashion. But there were some great bands and classic songs that on hearing at any time, take me straight back. 

I’m sure most people are the same. There are the songs that remind us of old flames whether it’s from dancing at the school disco or their incessantly playing it, songs that remind us of places we were at the time to songs that remind us sadly of tragic moments. Songs that inspire, nothing like running to Rockys theme, to those that depress, i.e. anything by The Smiths. 

I remember going with my best mate at the time to see OMD  at The Dome in Brighton. Anything by The Eagles takes me back to working on a sheep farm on The Great Dividing Range in Australia with my now wife in the first year of this millennium – it was very random even then. I can remember songs that were No.1 when my kids were born and when I slip off this mortal coil, I have no doubt I want Highway to Hell  played very loudly as I disappear. 

What I’m trying to say, probably very inadequately, is that no matter what the song is it will mean something special to someone. Except that bloody song by Joe Dolce that kept Vienna by Ultravox from being number one in 1981. 

So in the words of Benny & Bjorn, thank you for the music (I still don’t like Abba though no matter how many films, musicals or tributes. Sorry)





Stronger

3 11 2013

Promise me you’ll always remember: You’re braver than you believe, and stronger than you seem, and smarter than you think. – 

A. A. Milne

Yesterday I was out and happened to bump into a victim who eighteen months ago had dealt with a historic sex assault as a child all the way from initial complaint to police through to a Crown Court trial. This is the only trial I have ever lost at court and it still grates at me. It was a struggle to get the CPS to charge and a battle at  court before a  Judges ruling at half time acquitted the suspect based on the then current stated cases.

In light of recent high profile matters which have made court since the revelations around Jimmy Saville, I firmly believe, in the current climate, a conviction would have resulted.

I was extremely proud then and now of the manner and bravery with which the victim gave her evidence and from seeing the jury being told they HAD to return a not guilty verdict and shaking their heads I know she was believed.

Speaking to her yesterday she is a different person. The trial itself was closure enough and her strength of character and her family have helped her since. She has moved on. Many victims do not get the opportunity and live with the abuse they suffered throughout their lives.

I have seen police workloads on historic sex offence cases rise 300% since the media highlighted the abuse committed by Saville. More victims now feel they will be believed. Contrary to the way some of these matters are reported in the press they are not ‘minor touching’ or offenders ‘copping a feel’. Neither is it a matter of  the offences being committed by a different generation when it was accepted. It was never acceptable but it was glossed over. Some victims suffered for years at the hands of their abusers who could be family members or those in positions of trust. The offenders who committed these acts thinking they would never be caught out should be aware, victims are coming forwards. It doesn’t matter how long ago, how old you are or what position you held or hold. We will find you and make every effort to ensure that you pay for your crimes.

As for the lady I saw yesterday? She has no regrets even though the suspect walked away. She knows we gave it our best shot and she was heard. She had the strength to go through with reporting the abuse and ultimately facing her abuser in court. I wish I could have got her the result I believe she rightly deserved





Beat the Bully

19 09 2013

Image

Those who bully the weak are cowards before the strong  Chinese proverb

Every day people have to deal with bullying. Whether it’s at school, the workplace, home or online, it’s all the same. I doubt there are many people who haven’t experienced bullying in one form or another.

Daily I read of cases now where online bullying by anonymous individuals has damaged peoples lives, sometimes fatally and I wonder what those responsible get out of it? When it was a matter of being a bully in person there were those that would relish the discomfort and pain they put others through. Whether it’s a persons size, speech, colour, sexuality or gender, the bully can always find something to target to make the victims life hell. Now, with online social media they can do the same from the comfort of their bedroom, seemingly safe in their anonymity until the police come knocking. But we can’t trace everyone but the most severe online offenders and this is just a drop in the ocean. How much goes unreported with victims suffering in silence?

Domestic violence is no different in my view. The aggressor putting the victim in fear of constant verbal and physical violence. Over the years I have sadly seen countless cases of beaten women and, on occasion men, who will not go against their partner and become so institutionalised to the cycles of violence that they still say, “But I love him”.

Most cases of murder are committed where the offender is known to the victim and a large number are between partners. Similarly, a proportion of rapes go unreported because the victim is in a relationship where the violence linked to sex becomes the norm and they are told that ‘no-one would ever believe them’.

What can be done? There is the support out there for victims no matter what their age. Schools have policies and procedures in place, the police are there to deal with crime and other agencies can help in many ways. But this often falls to the victim to find the strength to make the first move and seek help. I believe that it is the responsibility of everyone to beat bullying in all forms and to ensure that those that need it have the support they need. It is too easy to turn a blind eye and think someone else will step in and deal with a problem.

Sometimes by the time they do it’s too late.

http://www.childline.org.uk

http://www.nationaldomesticviolencehelpline.org.uk/

http://www.rapecrisis.org.uk/





Where did I put my cape and whistle?

17 09 2013

police

Following on from a certain article in the Daily Mail the other day, (which I don’t intend to promote by adding a link), I have seen and heard much in response to the author. Effectively he was stating that the police should ditch the batons, cuffs, stab vests, firearms and cars and get back to all walking the beat and engaging with the public and this would stop crime happening.

Everyone is entitled to their opinion and we have the benefit in this country of free speech so to me, if he wants to say all this whilst repeatedly quoting on social media sites that people should read his book which explains it, then carry on. Those who read the said tabloid will either agree or disagree with his comments. This may partly be dependent on their dealings with the police either as a victim of crime or a suspect.

I would just like to give my opinion, bearing in mind free speech works both ways, as to why we have the equipment my uniform colleagues are obliged to use and wear daily and why they can’t  spend the whole shift wandering the streets  and chatting. It seems in the article that we should go back to policing as it was in the 1960’s. Now, correct me if I’m wrong but we have moved on a little in the last fifty years. There are now armed gangs involved in the supply of drugs who think little about using these weapons against the police and members of the public. There is a recognised terrorist threat, similar to but far different from that conducted by the IRA. There is no longer a concern about the penalty for assaulting police and I, probably along with the majority of officers, have suffered assaults on numerous occasions. I don’t whinge and complain about it because to a certain degree it comes with the territory. What I do disagree with is this idea police should be on the same level as those committing offences. Does he suggest that we start bare knuckle fighting in the street whilst we try and call assistance with a whistle? Members of the public deserve the best protection that can be offered to them by the police. It is not much use turning up to an armed crisis situation and asking politely if the offender would kindly put their guns down or we’ll resort to very stern words.

The crimes that are investigated are different to those in the 60’s as well. Was there an internet and the online crimes then? No, and these new crimes need to be dealt with in lengthy and often complex investigations. In the last year since the result of the Jimmy Saville enquiry I have seen the reporting of historic sex abuse crimes rise massively. This, I hope, is because victims are more confident to come forward. The fact is that these crimes have no forensics to support them and can involve tracing potential witnesses around the country along with tracking down any paperwork to corroborate accounts. Then there are the court cases. Police did not have to do the huge amount of file preparation that we have to now. The CPIA Disclosure legislation that was brought in means an officer may have to personally review thousands of documents to ensure compliance. The Police and Criminal Evidence Act 1984 (PACE) set out the practices and standards to which police work and deal with crime, suspects and evidence. Long gone are the days of suspects signing blank confessions and rightly so.

All of these abstractions mean less officers on the street enaging with the public on a daily basis just to talk. We still have the majority of police officers in this country unarmed and most of them agree with this. Yes, the uniform has gone away from the shirt and tie with a tunic but the world has moved on. I don’t know many people who leave their doors unlocked nowadays. If you call for police on an emergency I think most people would want to know that a car is on blues and twos getting to them as fast as possible as opposed to a bobby trying to run halfway across town to arrive barely able to breathe and stand. Abroad we think nothing of the guns and uniform that police wear because that is what we have always seen.

As police we are here to do a job and should be equipped properly to accomplish this, both to protect the public and the safety of officers themselves.








Follow

Get every new post delivered to your Inbox.