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”.

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The “Rape Shield” Bill is well-intentioned, meaningless and dangerous

Like the tide or the relentless ignorance of Iain Duncan Smith, the rhythm of certain recurring natural phenomena offers a comfort of certainty in an otherwise torrid and unpredictable world. One such inevitability was the reignition of the “Ched Evans row“, as media fiat demands it be termed. After several heady weeks in which almost all concerned abandoned calm and reason to soak in a pool of righteous, misinformed anger over cross examination of complainants on their sexual history and the meaning of the Court of Appeal ruling in Evans, there was a period after we all got out and dried off when tempers cooled and a serendipitous peace descended.

Ched Evans was a star player at Sheffield United.

It could never last. It was never intended to. That much was known when the government announced a review into the operation of section 41 of YJCEA – the legal provision setting out the limited circumstances in which evidence may be adduced or questions may be asked relating to previous sexual behaviour of a complainant in a sex case. We do not yet have the review, but yesterday nevertheless brought a pre-emptive legislative response, in the form of a Private Members’ Bill introduced by Plaid Cymru MP Liz Saville-Roberts.

The Bill, dubbed as a “Rape Shield”, has gathered attention since the weekend, as Ms Saville-Roberts trailed it across various media platforms. Explaining her premise, Ms Saville-Roberts wrote in The Times yesterday:

“So what’s the problem? It seems that rather than being invoked occasionally as originally intended section 41 is being over-ridden in courts to the degree that its effectiveness as a rape shield is weakening. This was thrown into sharp definition by the Ched Evans retrial. What was previously presumed to be a legal resort for extraordinary circumstances was presented as a successful defence strategy across the popular press and social media, which begs the question: from now on will every man charged with rape seize on this case as a get-out-of-jail-free card, and instruct his lawyers accordingly?”

Counting slowly to ten and fighting the urge to scream “THE ONLY PEOPLE PRESENTING THE CHED EVANS RULING “AS A SUCCESSFUL DEFENCE STRATEGY ACROSS THE POPULAR PRESS AND SOCIAL MEDIA” AND SUGGESTING THAT DEFENDANTS WILL UNIVERSALLY ADOPT IT AS A FORM OF PRECEDENT WERE NOT DEFENDANTS OR DEFENCE LAWYERS BUT YOU, THE HYSTERICAL MOB RESISTANT TO THE STRONG LEGAL CONSENSUS THAT EVANS SET NO MEANINGFUL PRECEDENT”, I shall accept, for the sake of argument, the premise that section 41 is being too loosely interpreted by Crown Courts, and that judges are permitting lines of questioning that they shouldn’t. I will respectfully observe that Ms Saville-Roberts’ reliance upon an anecdotal “dossier of victims’ harrowing experiences” collected by charity Voice4Victims, as evidence for her proposition that section 41 is insufficiently restrictive, is a little unscientific – a complainant, who is not legally trained, was not present during the judge’s ruling on the section 41 application and has a personal stake in the case, is not best placed to impartially assess the objective lawfulness, relevance or propriety of the questions on sexual history – but let’s not refight old battles about what precedent Evans sets or whether section 41 is or is not being correctly applied. Let’s assume that Ms Saville-Roberts is right, and consider the Bill presented yesterday.

As a Private Members’ Bill at a first reading, we must allow for this being very much a first draft. But even so, it is of a standard, it has to be said, which my pupil supervisor would have merrily set alight with his cigarette lighter had I presented it to him as an example of my drafting. The first clause of the Sexual Offences (Amendment) Bill deals with the proposed “Rape Shield”, and reads as follows:

1. Restriction on evidence or questions about complainant’s sexual history

(NONE)In section 41 of the Youth Justice and Criminal Evidence Act 1999 after
subsection (1) there shall be inserted the following subsection―

(2) A Court in making a determination in respect of subsection (1) may
require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings nor should such matters be admissible as evidence
if the purpose is to undermine the credibility of the complainant unless
it would be manifestly unjust to treat them as inadmissible.”

That’s quite a mouthful. Let’s break it down. Subsection (1) of section 41 YJCEA 1999, as a brief reminder, provides the general rule that:

(1)If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a)no evidence may be adduced, and

(b)no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. 

The remainder of section 41 sets out the limited exceptions under which leave may be granted, namely the circumstances set out in subsections (3) and (5).

So the new subsection (2) presumably seeks to add a further compulsory qualification to the general circumstances in which the judge can give leave under (1). I say presumably, because it is in fact entirely unclear what the subsection is supposed to achieve. Having read it repeatedly, the only way to begin to analyse its intended effect is to look at it line by line. In so doing,  I shall refer to the proposed new subsection (2) as subsection (1A) (as it ought properly be), to avoid confusion with the existing subsection (2).

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve…”

Right from the off, we see that this isn’t a mandatory restriction at all. It simply affords the judge a discretion as to whether to apply the qualifications that follow. Which, if your complaint is that judges are presently not exercising their discretion in this area correctly, appears an odd solution.

As to exactly what type of questions the judge may prohibit, we’ll turn to the substance momentarily, but it assists to skip to the end to get an overview of the purpose. Doing so gives us:

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve [various matters] if the purpose is to undermine the credibility of the complainant.”

This gets to the nub of the (entirely proper) objection that Ms Saville-Roberts has to evidence of sexual behaviour being used to discredit complainants, this being one of the “twin myths” – (i) “promiscuous” women are less likely of belief, and (ii) are more likely to have consented to sexual intercourse – that section 41 was designed to combat. Firstly, given that this Bill is presented as the panacea to the “Ched Evans problem”, it bears constant repetition that the reason for the admission of the sexual history evidence in Evans had nothing whatsoever to do with attacking the complainant’s credibility. Secondly, the authors seem unaware that section 41 already has that exact prohibition in place:

(4)For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

Which rather makes (1A) otiose.

But what are the restrictions that the judge may apply? Well, s/he:

may require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings”

This is so broad as to defy definition. It covers quite literally “any matter appertaining to behaviour” – not just sexual behaviour. Quite what is meant by  “sexual history with any unrelated third parties” remains to be seen, no definition being offered, and a literal reading suggesting that evidence of incest would be admissible. The last line really tops it off – regardless of the nature of the complainant’s alleged behaviour either before or subsequent to the current proceedings – reading as an attempt to ban any question in any context. The incoherence is staggering.

Then we reach the final qualification:

“unless it would be manifestly unjust to treat [those matters] as inadmissible.”

The discretionary nature of this provision renders an “unless” clause utterly pointless, but in any event, it again adds nothing. Because there is already built into the existing subsection (2) of s.41, a requirement that leave should not be given under section 41 unless the court is satisfied “that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.” Much as the Court of Appeal enjoys a spot of sophistry, identifying a meaningful distinction between a decision that is “manifestly unjust” and one that merely “renders unsafe” the verdict would be a head-scratcher even for them.

The only conclusion one can draw, for this to have any meaning, is that the word “may” is an error, and that the author intended this provision as an imperative. In which case what you get is a mandatory restriction on asking the complainant any question on any aspect of behaviour – including lies, evasiveness or inconsistency – which may be designed to undermine their credibility. Faced with a false allegation, you would be prevented from challenging the credibility of your accuser in any way.

Put simply, the drafting of this Bill shows that no understanding of the law, or the principles behind section 41, has been attempted by its creators. It is knee-jerk to the point of hyperextension. Other comments by Ms Saville-Roberts, in which she mangles the reasoning of the Evans ruling, and even goes as far to suggest that section 41 as presently drafted is intended to exclude evidence of a complainant’s mental health, suggest that she, like many before her, has not taken the time to properly study the basics of her subject before rushing to legislate.

And I go into this tortuous detail because it exposes a deeper ignorance of our basic principles of justice, as demonstrated even more starkly in the next clause of the Bill, which seeks to impose a general ban on the police and CPS telling a defendant the name of their accuser, or other witnesses, in cases involving sex or violence, without the leave of a Crown Court judge (a proposal demolished by Nick Diable here). This is not a considered rebalancing of a finely-tuned and delicate ecosystem – it is an aggressive demolition of our common basic rights in the name of Doing Something to correct a problem which the architects don’t even understand.

I have no doubt that Ms Saville-Roberts and her sponsors are motivated by a genuine and noble desire to correct what they perceive to be cruel humiliation visited upon vulnerable complainants. But in so acting, they subscribe to a philosophy in which the court process is reimagined as a way of simply navigating our way smoothly to a conviction, safe in the certainty that if the defendant stands accused, it follows that he is guilty. In this model, it is of course rational that the minimisation of the complainant’s distress is the guiding principle, with the presumed guilty defendant’s interests an afterthought; worse, an inconvenience. A precondition of any reform of section 41 is sober analysis of the competing interests – defendant, complainant and state – and root principles of justice, before so much as a word of a new Bill is committed to paper. Otherwise we end up with Bills like this – well-intentioned, meaningless and potentially very dangerous indeed.