Accusing this judge of “victim blaming” is unfair, wrong and dangerous

On Friday 10 March 2017, HHJ Lindsey Kushner Q.C. drew a 43-year legal career to a close by detaining a rapist for six years. After 14 years on the bench, her final trial at Manchester Crown Court involved a set of facts grimly familiar to criminal practitioners, in which the defendant, Ricardo Rodrigues-Fortes-Gomes (19), led the 18-year old victim, who had been drinking lager and vodka and inhaling amyl nitrate, from a city centre Burger King to a canal bank, where she was raped. Her cries were heard by a witness in a nearby flat, who called the police.

The details are scantly reported, but it appears that there was a co-defendant, and it was said that they took turns to have intercourse with the victim on the canal bank. They each claimed that the sex was consensual. The co-defendant was acquitted while Rodrigues was convicted. (For those immediately curious as to how this might be, it should be emphasised that the burden of proof means that such a verdict is not a finding that the co-defendant was innocent and that the intercourse with him was consensual; all we can divine from the verdict is that the jury could not be sure that there was not consent (or reasonable belief in consent).)

HHJ Kushner Q.C.

Having passed a sentence of six years’ detention in a Young Offender Institution, HHJ Kushner Q.C. took her last ever sentencing remarks as an opportunity to share some wider observations. This is not uncommon; recent years have seen retiring judges use their last hurrah to shoehorn in some long-suppressed views about, for example, the crumbling Crown Prosecution Service. Given the trial over which she had just presided, HHJ Kushner Q.C. chose the topic of sexual offences on which to offer her insight. The remarks bear repetition in full, given the interpretation that has since been attached to them:

“We judges who see one sexual offence trial after another, have often been criticised for suggesting and putting more emphasis on what girls should and shouldn’t do than on the act and the blame to be apportioned to rapists…There is absolutely no excuse and a woman can do with her body what she wants and a man will have to adjust his behaviour accordingly. But as a woman judge I think it would be remiss of me if I didn’t mention one or two things. I don’t think it’s wrong for a judge to beg women to take actions to protect themselves. That must not put responsibility on them rather than the perpetrator. How I see it is burglars are out there and nobody says burglars are OK, but we do say ‘please don’t leave your back door open at night, take steps to protect yourselves’…Girls are perfectly entitled to drink themselves into the ground but should be aware people who are potential defendants to rape, gravitate towards girls who have been drinking.”

The judge also went on to remark that “potential defendants to rape” target girls who have been drinking because they are “more likely to agree as they are more disinhibited, even if they don’t agree they are less likely to fight a man with evil intentions off”. She said a woman would be less likely to report a rape “because she was drunk or cannot remember what happened or feels ashamed to deal with it”.

“Or, if push comes to shove, a girl who has been drunk is less likely to be believed than one who is sober at the time…It should not be like that but it does happen and we see it time and time again. They are entitled to do what they like but please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others. That’s my final line, in my final criminal trial, and my final sentence.”

It did not take long for a flare to be sent up. This, it was swiftly asserted, amounted to classic Victim Blaming. Dame Vera Baird, former solicitor general and Northumbria Police and Crime Commissioner, told BBC Radio 4’s Today programme:

“When somebody is raped they feel guilt and shame and they find it very hard to report it. If a judge has just said to them ‘Well, if you drank you are more likely to get raped, we are not likely to believe you and you have been disinhibited so you’ve rather brought it on yourself’ then that guilt is just going to get worse.”

As reported by the BBC:

“Ms Baird said the judge should have given advice to help women stay safe instead of implying “it’s your fault for having attracted him in the first place”.”

“This looks like victim-blaming and they (organisations such as Rape Crisis) are worried that, yet again, it is going to become harder to get women to make reports. That’s a terrible shame.”

Similar sentiments were echoed by numerous charities and pressure groups. They were ad idem in their condemnation – the judge was blaming victims for the horrors that they suffered at the hands of their attackers. She was “telling women that they wouldn’t be believed” and “deterring victims from coming forward”.

This is the message that has since dominated the reporting of this story. And, with respect, it is wholly and dangerously wrong.

Victim blaming – ascribing moral fault to victims for crimes committed against them – is insidious and wicked for all the reasons correctly identified by Baird and campaigners. It wrongly seeks to diminish the moral culpability of the criminal by apportioning fault to the victim, in a manner unthinkable outside the arena of sexual offences; it increases the suffering of the victim; it deters present and future victims from reporting offences; and its logical conclusion holds that the solution to preventing these offences lies solely with the women who “invite” them, rather than the men who perpetrate them.

But it is not the same thing as seeking objectively to identify factors that increase one’s risk of vulnerability to crime, and urging awareness of those factors.

The sensitivity to perceived victim blaming in the criminal courts is understandable. The law – courts, judges and lawyers – has for centuries indulged in stark and blatant victim blaming. From the historical lack of respect and credibility afforded to “unchaste women”, to 1980s judges suggesting that a victim’s clothing or demeanour meant she was “asking for it”, to the fact that as recently as 1991 a wife could not in law be raped by her husband, the law has rightly been forced to update attitudes rooted in what is at best patriarchy and at worst institutional misogyny. And, while much has improved, it would be naive to assert that such attitudes can be comfortably boxed up as historical remnants.

The Fawcett Society earlier this year published a report suggesting that 38% of men and 34% of women surveyed said that a woman was “totally or partly to blame” if she went out late at night wearing a short skirt, got drunk and was the victim of a sexual assault. A High Court judge last year made comments, similar to those expressed by HHJ Kuschner Q.C., but with the added, ill-advised suggestion that the victim had been “foolish” to have exposed herself to risk. I criticised this on Twitter at the time as deeply unhelpful, representing, while not “victim blaming” as such, nevertheless a moral judgment of victims that we should strive to avoid.

It plainly still needs to be said, and should be said, loudly, clearly and repeatedly: It does not matter what a woman is wearing. Or how much she has drunk. Her body is her own. If you violate her autonomy, the responsibility is entirely yours. No-one else’s. She is not to blame for exercising her freedom. You will not, as happened in one notorious case in 1982 at Ipswich Crown Court, find yourself handed a shorter sentence on the basis that the victim is culpable of “contributory negligence” for putting herself in a position of vulnerability. Your crime is wholly your own.

But, to repeat the point – this should not be conflated with attempts to point out ways in which people can minimise the risk to themselves. The “locking your windows to keep out burglars” analogy often reached for in this debate, and indeed floated by the judge, carries an admitted crassness, comparing as it does a crime against property with an invasive sexual offence; but that does not diminish its inherent truth. Saying that there are common factors which are exploited by criminals is expressing empirical fact. It is not a value judgment on character or behaviour. It no more increases the moral culpability of the victim or decreases the agency of the offender than pointing out that going out without shoes increases your chances of cutting your feet on broken glass. You are not in any way morally to blame for someone else leaving broken glass on the floor, nor for expressing your right to dress as you please; the message is simply: here’s what experience teaches us you can do to minimise this risk.

In the instant case, it is obvious that this was all that the judge was doing. She was talking about a very specific type of offence which, although thankfully rare, crosses the criminal courts far more often than humanity can bear; namely, cases where a highly intoxicated lone young women is targeted by a predatory rapist due to her vulnerability. This is not a myth created by misogynist judges to frighten women into never leaving the house – it is an appalling reality. And what is more, as the judge carefully explained, the specific vulnerability of being blind drunk can be exploited not only in the commission of the offence, but a second time over by the defendant seeking to deny his guilt at trial. In the case that HHJ Kushner Q.C. had just heard, the guilty defendant had alleged consent. I can guarantee you that the defence barrister will have spent significant time in cross-examination tugging away at the minor details of that fateful evening to demonstrate how the alcohol had inhibited the victim’s memory in an effort to undermine the reliability of her evidence.

None of this, as the judge was at pains to say, is to in any way blame the victim for what happened to her. But it would be a nonsense to suggest that, in cases such as these, one’s vulnerability is not heightened by drinking to excess.

It is in many ways bizarre that at a time when there is a belated emerging social consensus that tackling “general” crime requires a multi-faceted approach, looking not only at the individual culpability of the offender but the broader environmental and causative factors that create the conditions for crime to occur, the tune of self-professed progressives is often one-note when it comes to sex offences. In political terms, emphasising that an effective criminal justice policy has to recognise the social and environmental factors that facilitate crime, and that so doing does not excuse the moral culpability of the individual, has been a gruelling campaign of the centre-left. It is usually the gravel-throated wails of the reactionary right that drown out attempts at nuanced assessments of crime that move beyond locating cause (as opposed to moral culpability) solely in the offender. But this is the adopted philosophy of those who shout down HHJ Kushner’s advice with the mantra of, “Rape is only caused by rapists”.

The choices of the offender are the largest part of the problem, of course. But it is blinkered to suggest that the solution to making the public safer lies simply in condemning louder and punishing harsher. Unpleasant as it is to accept, we will never eradicate violent and sexual crime. Never. There will always be people – usually men – who irrespective of the law, will rape. As long as we recognise that truth, it is incumbent upon us to help keep each other safe. This we do by focussing on the offender, and potential offenders, through social, criminal and penal policies combining education, deterrence, rehabilitation and punishment; but also by limiting opportunity for those who are determined to offend. A solution that focusses solely on the offender, asserting that there is nothing that can be done by the public to protect themselves, is no real solution at all. It’s cyclopic, prioritising the purity of The Cause ahead of pragmatic realities.

That, I fear, is what we are witnessing with this latest outburst against the judge.

And, again, in making these observations, I do not question the sincerity of the cause. And I understand why, whatever label one puts on the judge’s comments, it might still be suggested that they were not helpful. There is a justifiable worry that emphasising personal victim safety might deflect attention from the offender’s culpability in a way that is superficially extremely unattractive. One could argue that the prevalence of such remarks reinforce misnomers about sexual offending, and disguise more complex realities, such as the fact that the “stranger rapist in the bushes” is statistically rare, the offender and victim most likely to be known to each other. One might contend that the discussion about what steps it is objectively “reasonable” for a woman to take can easily fissure into normative value judgments about how women should act, or dress, or otherwise restrict their own liberties.

I would argue that none of those arise in this case – the judge’s remarks appear plain, sensitive and carefully targeted – but I can see why those who dedicate their lives to supporting victims may tire of what they perceive as an imbalance in public discourse, and wish that emphasis were placed elsewhere.

Nevertheless, whatever may fairly be tossed into the debate, and whatever deeper, noble motivations may pertain, the claims of “victim blaming” here are entirely unjustified. The ubiquity with which the term “victim blaming” is now thrown around, like “fake news” by a deranged faux-Presidential clown in a wig, risks degrading its meaning to “something we’d rather not hear”. Worse than that, it results in vital, non-judgemental messages about personal safety being lost in the din.

Judges and police trying to press home the message of personal safety find themselves like doctors telling a patient that there are certain environmental factors that increase their risk of vulnerability to a disease, and having their offer of advice angrily rejected as “victim blaming”.

In fact, it is worse than that. To stretch the analogy, Vera Baird’s words are akin to telling people: “If you go to see a doctor, you will suffer victim blaming.” Dame Vera, although I don’t doubt motivated by a genuine desire to improve the lot of victims of sexual offences, is becoming a repeat offender in this area, the first to heighten alarm rather than assuage concerns. The quote to the BBC, in which Ms Baird suggested that the judge had said “you’ve rather brought it on yourself” is, I’m afraid, simply untrue. Either Ms Baird did not read the remarks before commenting, or, worse, she did and has dishonestly misrepresented them to support her point.

It is a genuine shame that the publicity generated by the judge’s comments were not seized upon as a platform for a united message of support for victims, instead of being exploited as an opportunity for division and recrimination. Imagine if, instead of rushing to condemn this judge – who, with respect, will have a far deeper, broader and more objective understanding of the topic than many single issue campaigners – Vera Baird had said something like this:

“As this highly experienced judge rightly recognised, crimes of this type are always the fault of the offender. Furthermore, this type of rape is rare; but there are simple steps that we would urge people to take on nights out to increase their personal safety. Predators often seek out women who are drunk and alone and exploit their vulnerabilities. Of course go out, drink and have fun – but just take care. And, should the worst happen, please do not be deterred by media scare stories from reporting what has happened.”

It has been suggested that such advice is otiose, or patronising. As the Guardian was told by End Violence to Women:

“The group pointed out that women already take steps as a matter of routine. “They leave early, get taxis instead of buses, don’t wear ‘that’ top or ‘that’ skirt and they still get raped.””

And of course, the judge’s advice is not a panacea. It cannot and was not intended to be. But tragically the daily experience of the criminal courts shows that the message about personal safety still bears repetition. It won’t erase the problem, but it may help, in a narrow subset of cases, to save a few potential victims from having to pick up the fragments of their shattered lives off the courtroom floor. And if it does, it is a message which should be cheered by us all, with its judicial messengers celebrated rather than beaten into submission by misplaced accusations of “victim blaming”.

Were the judges “incompetent f****-ups” to refuse Marine A bail?

There is a risk, I am acutely aware, of this blog appearing to transmogrify into The Secret Judicial Cheerleader. Which it is not. By way of pre-emptive self-defence, I should point out that much of my professional life is spent politely pointing out to judges why, in my respectful submission, the course they are thinking of taking, which just happens to be adverse to my client, is wrong.

And sometimes, I dare say I’m even right about that. Because judges are fallible. From magistrates – especially magistrates – through to Supreme Court Justices, errors in reasoning and application of the law occur. And people far brighter than me forge glittering careers appearing in the higher courts, and publishing brain-stretchingly clever academic criticism, telling judges just how wrong their brethren – or they – are.

But what those types of argument have in common is that those making the case against judicial decisions do so in full possession of the relevant facts and law. Which is a precursor, you might think, to entering any debate, whether in court, print media or online. Know what you’re talking about. If you’re not sure why something happened, pause and find out, before leaping to the settled conclusion that, because that something instinctively offends you, it must be wrong. Or unjustifiable. Or evidence of systemic corruption. Or proof of some other cosy conspiracy theory.

It’s rather sad that I feel I have to open with such obvious points, but increasingly it becomes clear that they escape many who wish to inflict their opinions on their large, and often inexplicable, followings.

And so to Marine A, or Sgt Alexander Blackman. I touched on his case a few days ago, when his application for bail pending his appeal against his conviction for murder was adjourned. Yesterday the Court Martial Appeal Court (CMAC) heard the bail application, and refused it. The appeal will be expedited and listed as soon as possible next year, but the appellant will not be coming home for Christmas.

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On cue, a band of merry speaking heads sprang up, Whack-A-Mole style, to denounce this decision. That so many did without being in court and before the Court published its judgment perhaps tells you something about the factual soundness of their premise. A choice few include:

So what happened? As a brief recap of the case, Sgt Blackman was convicted of murder in 2013 by a Court Martial, having shot an Afghan detainee at point blank range in 2011 while on tour in Afghanistan.  The case pricked emotions all round. For many, this was an act of cold-blooded murder which degrades the reputation of our military and endangers fellow servicemen, and Blackman was rightly prosecuted and convicted. For others, this was a mistake by a respected hero risking his life for our safety, and the morality and legality of such things done in the fog of war cannot be second-guessed by civilian commentators or media.

The details of the appeal are subject to reporting restrictions, but what we know is that the Criminal Cases Review Commisison has presented fresh psychiatric evidence which it is said relates to the appellant’s state of mind at the time of the shooting, and which renders the conviction for murder unsafe. It will be submitted that the correct verdict should have been manslaughter, on the grounds of diminished responsibility. There are also further grounds relating to, amongst others, alleged incompetence of the trial representatives. (The full issues for appeal, some referred by the CCRC, some raised for the first time by the appellant, are listed at para 9 of the judgment.)

Yesterday was the first effective hearing at the CMAC. Bail was sought and refused. Why? Was it, as Bannatyne says, because judges are incompetent? Was it because they are, in the poetic words of Jon Gaunt, “fucked up”? (A side note on Mr Gaunt – he is the radio presenter who, after being sacked by Talksport for calling a guest a “Nazi”, took his case against Ofcom as far as the High Court, where it was held that “the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification”. Which will no doubt be his epitaph.) Was Blackman failed by judges maliciously applying lesser standards to a war hero than they would a migrant rapist, out of loathing for their country?

Actually, the reasons are set out in the judgment, which, if one takes the time to read it, makes for a far less scandalous tale. As para 18 patiently explains, bail pending appeal is rarely granted. This accords with most practitioners’ experience of appellate proceedings. Bail will only be granted in “exceptional” circumstances. Before conviction, there is in most cases a presumption in favour of bail, and the court will need to be satisfied that there are substantial grounds for withholding bail (e.g. the defendant is a flight risk, or there is a risk of further offending). But where someone is convicted and is seeking to appeal, entirely different considerations apply. Exceptional circumstances must be made out in order for bail to be granted. What amounts to “exceptional”? The test is set out in case law. Normally, “exceptional” requires that the merits of the appeal are overwhelming, or that the appellant will have served his sentence by the time of the appeal, rendering it practically nugatory.

Here, neither of those was satisfied. The Crown, although neutral on the issue of bail, do not accept the premise of the appeal. They do not agree that the new psychiatric evidence establishes a potential defence of diminished responsibility, and will argue that the conviction for murder is safe (para 13). With this in mind, and the Court having seen the fresh evidence, it considered that the case cannot be seen as “overwhelming”. (And anyone who feels able to positively  disagree with this assessment without seeing the evidence is frankly beyond reason.)

Turning to the second limb, even if a conviction for manslaughter were successfully substituted for murder, it does not follow that by the time of the appeal, he will have served all of his sentence. Exceptional circumstances, the Court held, are not made out on the test that the Court has to apply. The test is not, as some would wish, whether one has sympathy with Sgt Blackman, or whether the judges know the true meaning of Christmas. It’s the same test that is applied to all murder convicts. Reaching for the trite point, if you were the family of the deceased, you would want the Court to follow the law when entertaining a bail application from your beloved’s killer, rather than to base their decision on the whims of the public mood. This is the rule of law, folks. It’s there to protect us all.

The timing of the appeal is also important. In recognition of the urgency of the appeal, the Court has agreed to sever the various issues raised in the grounds of appeal and to expedite the seemingly most pressing – that of the psychiatric evidence. The appeal on this ground is likely to be heard at the end of January 2017 or start of February. To those abusing the judges for their lack of compassion, for the Court of Appeal to list a substantive murder appeal hearing involving fresh psychiatric evidence within a month of the CCRC reference being received, is rare. This case, whether rightly or wrongly, is getting afforded attention and speed of treatment that many equally, if not more, meritorious appellants can only dream of.

Again, I’ll close with repetition: this is not, as some like to suggest, blanket support of the decisions that judges take. It’s not even saying that this particular decision is unimpeachable. It’s certainly not saying that people shouldn’t feel strongly about cases like this. But there’s a difference between criticism factually-grounded and forcefully expressed, and ignorant, gratuitous abuse such as that spat out by Bannatyne and his ilk.

The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:

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Which perhaps, at this stage, is all that properly can be said.

If MPs are going to attack judges, they should at least understand the law

I don’t want defending the indefensible to become my default position. At least not outside the courtroom. And I’m well aware that what I’m about to say amounts to a defence of a section of society whom very few – particularly among lawyers – would leap to support. And that, following the reaction to my previous blog, there’s a risk of perceived contrarianism creeping into these posts.

But a word must be said sticking up for our judges. At least in this following, narrow, context.

Today, UKIP MP Douglas Carswell took to Twitter to retweet a nonsense article by Daily Telegraph leader writer Philip Johnston berating Mr Justice Hickinbottom. He, for the uninitiated, is the High Court Judge who this week ruled that the Labour Party National Executive Committee (NEC) breached its contractual obligations towards its members through the imposition of the 6-month “cut-off” designed to prevent a large number of party members who joined post-January 2016 from voting in the upcoming leadership election.

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The thrust of the article, endorsed by Mr Carswell, was that this being a party political matter, the courts had no place determining it. Johnston stormed:

“In his judgment, Mr Justice Hickinbottom said he accepted and fully endorsed the proposition that “the courts must be careful not to interfere in political matters”. He should have stopped there and declined to hear the case.”

This too is the view of Mr Carswell, who in less temperate words declared:

And:

 

I’ve asked Mr Carswell to define his understanding of judicial activism, but he has declined, preferring instead to simply insist that there are cases which he is unable to name which disprove the point I’m about to make. Which is this. Judicial activism is a term commonly used to criticise judicial decisions where a judge is perceived to be straying out of the legal arena and into politics. Going beyond his or her Judicial Oath to apply the law and instead shaping it in his or her own image. And understandably this is something of which many people are wary. Carswell’s position appears to be that, in agreeing to hear the claim, the Judge is guilty of straying into politics. And not just a bit guilty, but “foolish” and “appalling” for having done so.

But here’s the problem: This is not judicial activism, you ninnies. Carswell and Johnston are both naughty boys who have failed to do the most fundamental research into how the legal system works. It’s a shame, because if they’d bothered to read the judgment of the case that they both deem themselves qualified to comment upon, they’d have seen that early on, at paragraph 8, the Judge takes the trouble to explain the entirely non-contentious legal principle that the Labour Party, as an unincorporated association, is subject to the law of contract, and therefore an alleged breach of contract (in this case, the terms of membership) is a matter firmly within the jurisdiction of the courts. The Judge even helpfully provides the long-established line of case law confirming this. When I say it’s not contentious, I’m not underplaying it – there was never a suggestion, not even by the experienced Queen’s Counsel appearing for the NEC, that the court shouldn’t hear the case. And that’s because all involved, all those who know the law, know that it’s beyond moot. The court has jurisdiction, so the judge has to hear the case. It’s not a matter of discretion. This isn’t “judicial activism” where Mr Justice Hickinbottom has rolled up his sleeves, winked at the gallery and giggled, “I know I shouldn’t but…”. It’s a judge applying the law. As he swears an Oath to do. He can’t refuse to apply the law of the land because it might upset some twit of a Telegraph hack and an MP who, even when proved wrong, clings to his crumbling life raft of ignorance rather than issuing the simple apology that would lift him back on to dry land. To do so would, in fact, be an act of the very judicial activism that these twin nincompoops deplore.

This may seem a small thing to get upset about, but it’s important. I don’t mind Carswell saying that party politics should sit outwith the jurisdiction of the court. I don’t agree, but he’s free to say it and to call for change. But that’s not what he’s done. He’s attacked a judge as “foolish” and “appalling” for following the law as it stands. And as an elected representative, Mr Carswell, if he’s going to throw around words like “appalling” and “awful”, should at least have the common decency to ensure that his factual premise is correct. Here, as he has embarrassingly demonstrated, his ignorance of the law is dwarfed only by his arrogance in refusing to accept that his legal understanding might not match that of the many many lawyers who have lined up today to correct him. Like a low-budget UK Donald Trump, Mr Carswell has fired off a barrage of abuse at an entirely blameless target, and rather than say sorry would prefer to obfuscate, block and repeat. There’s something appalling and awful about this little tale, alright, but it’s certainly not the judiciary.

And my offer to Mr Carswell remains open. If I’m wrong, and the court could have refused to hear the claim, I will happily apologise. It will be my misunderstanding. The cases that he claims to know which show that the courts can disapply the law when it suits can be posted in the comments below.