In Moscow, a woman called the police, claiming she had been raped by a Pokémon character.[1]  For the uninitiated, these are imaginary cartoon figures in a children’s virtual reality game played on smart-phones.  She said that it had entered her bedroom at night and raped her in her sleep; when she woke, she found the huge character lying on top of her.  She jumped out of bed and it disappeared.

He husband didn’t believe her and said she needed to seek psychiatric help.  Her friend, Ivan Makarov, however, said that there were too many of these characters in her home and that her dog could sense them.  The woman booked an appointment with a psychiatrist.

Now, imagine that the woman had accused, not an imaginary cartoon character, but her husband of rape.  Imagine that her equally nutty friend, Ivan, had confirmed the allegation.  Imagine that the allegation was made in a jurisdiction, like ours, in which the police and social services operate a “believe the victim” policy.  It’s actually a rather more likely scenario.  Is there any way the husband could have escaped prosecution and conviction?

 

A daughter alleged that her father had raped her eight times over a six-year period.  The interview with the police conducted under the Achieving Best Evidence (ABE) guidelines reveals detailed descriptions of each assault and, in particular, accounts of how they made the girl’s body feel.  The allegations are particularly compelling and the father’s only response is to deny them.  It looks like an open-and-shut case.

A week before the trial, a barrister, Cathy McCulloch, is brought in to represent the father in court.  She reads the ABE interview and is struck – as no one else has been – by the “use of certain words, phrases and descriptions” which seem beyond the girl’s years.  This is a common indication that an allegation is false, but not always easy to prove.

Questioning the father, the barrister uncovers that the girl’s favourite book is Fifty Shades of Grey, an explicitly erotic novel; the father knows nothing about this book.  The instructing solicitor’s representative buys a copy of the book, reads it, and realises that there are far too many similarities between the book and the ABE interview for it to be coincidence.

In court, on the third day of the trial, the girl admits she had made the whole thing up, basing her allegations on Fifty Shades of Grey and other books, which she names.  McCulloch has ended the case after seven minutes of cross-examination.[2]

 

Father John Taylor had a dinner date with a twenty-eight-year-old woman after his marriage broke down and his Hungarian wife returned to Hungary with their children.  They had consensual sex.  The woman then went to the police and claimed Taylor had raped her; he was arrested.

Taylor’s life fell apart; he lost his job, and his health; he was shunned by parishioners, his car was vandalised three times, and he was denied contact with his children.  The case was eventually dropped when it was revealed that the woman had based her rape allegation on a description she’d read in a Martina Cole novel.[3]

 

These men were very lucky to be spared gaol sentences; many are not so lucky.  Father Taylor and the man identified only as WX had – or could afford – legal teams who were able to spot the flaws in the prosecution’s case.

It is here that my own interest is piqued: as an old English literature graduate, I am aware that the operation of the law often comes down to the careful, forensic examination of literary texts: witness statements, ABE interviews, etc.  A single word here or there can expose a liar and turn the course of a case.

I also have a more personal interest, as someone against whom false allegations have been made, initially in court, in order to thwart an application for contact, and later, to the police, in order to destroy my reputation and my career.

Ultimately, both failed (no thanks to the courts), but I am acutely aware that, even in the most balanced and fairest of systems, these cases often boil down to one person’s word against another’s.  If you have a friend like Ivan, it is then two people’s word against another’s.

But we don’t have the most balanced and fairest of systems.  We have a system in which there are two major flaws.  The first, as I identified in my last blog post, is the move towards “therapeutic jurisprudence”.  That is, a system of jurisprudence in which the aim is not to deliver justice, but to grant self-identified “victims” and “survivors” an opportunity to have their say and to achieve “closure” without their accounts being doubted or cross-examined.

The intentions behind this are often benign, aiming to encourage more genuine victims of rape and sexual abuse to come forward without fear of confronting their abusers in court, but it is achieved by gravely eroding or eliminating the traditional legal safeguards, such as the separation of powers between the judiciary and the executive, judicial independence and objectivity, the right to be presumed innocent until proven guilty, the right to due process, the right to be tried in public, the right to confront one’s accusers, the right to equality of arms, the right to consult an expert of one’s choice, and even the right to communicate in confidence with one’s own lawyers.

The result may be fewer perpetrators escaping justice, but there is also a huge rise in the number of false allegations and a commensurate fall in the ability of the innocent to defend themselves.  The presumption of innocence, the fundamental rock upon which the criminal law is founded, is stood on its head; the onus on the complainant to provide sufficient evidence to prove the accused guilty is inverted.

This is further enabled by the erosion of the legal presumption against the use of similar fact evidence by a series of cases and changes in legislation (DPP v P [1991] 2 AC 447 and R v H [1995] 1 AC 596 and the Criminal Justice Act 1988 and Criminal Justice and Public Order Act 1994).  Similar fact evidence, often acquired through police trawling expeditions, now substitutes the need to present solid, verifiable evidence to support the allegation of a crime.

Much of this change is less than benign, however, and has been enabled through the interference of politicians.

Tony Blair, for example, demonstrated his contempt for the falsely accused and the wrongly convicted in 2002, [4]

The biggest miscarriage of justice in today’s system [is] when the guilty walk away unpunished.

Helena Kennedy QC observed that in a single sentence he had—[5]

sought to overturn centuries of legal principle, a complete reversal of the approach to justice that every mature democracy in the world respects, whereby the conviction of an innocent man is deemed the greatest miscarriage of justice.

This, of course, was Blair’s point: to change the law so that a mere allegation would result in conviction without the tiresome necessity of proof – who could possibly object if it protected a child from abuse?

This is the danger the Independent Inquiry into Child Sexual Abuse (IICSA) now faces (under its fourth chairman).  Although it’s “believe the victim” focus is well-intentioned, it will inevitably identify innocent men – some aging, some dead – as the perpetrators of historic abuse.  The inquiry risks becoming bogged down in these cases – consider, for example, the determination of Lord Janner’s family to have his name removed from the inquiry – rather than identify positive ways of enhancing child protection in the future.

This brings us to the second huge failing of the system, which is a tendency to believe all men capable of abuse, but no women.  Why have all the people identified by Theresa May and her successor, Amber Rudd, as suitable to lead the IICSA been women?  How many women have there been amongst the thousands of accused named in the inquiries and police operations since this witch-hunt began?  Remember the words of May’s rival, Angela Leadsom?[6]

As an employer we’re not, let’s face it, most of us don’t employ men as nannies, most of us don’t.

Now you can call that sexist; I call that cautious and very sensible when you look at the stats.

Your odds are stacked against you if you employ a man.

We know paedophiles are attracted to working with children.

I’m sorry but they’re the facts.

This presumption that paedophiles can only be male is on the same intellectual level as Queen Victoria’s belief that women cannot be homosexual,[7] a belief reflected in our laws which have never sought to control the behaviour of lesbians.  It is a belief founded in blind prejudice: a determined resolve not to let the true “facts” intrude.

As I have said before, all the allegations on which the IICSA was founded have crumbled: the complainants have been exposed as liars and fantasists and the police lines of enquiry have been closed.  This leads the Inquiry floating in space, unsupported by anything other than these prejudices.  Alexis Jay must now keep this vast and growing edifice in the air.  She will not find it easy.

 

[1] Holmes, S. (2016, August 11). Woman tells police she was RAPED by a Pokemon Go character after she felt an ‘assault’… and the virtual reality game detected the creature in her bedroom. Daily Mail.

[2] McCulloch, C. (2016, August 05). Fifty Shades Incest Acquittal. Retrieved from http://www.stedmund.co.uk.

[3] The Telegraph. (2013, April 16). Crime novel inspired woman to falsely accuse priest of rape. The Telegraph.

[4] Blair, T. (2002, June 18). Full text of Tony Blair’s speech on reforming the criminal justice system. The Guardian.

[5] Kennedy, H. (2004, November 27). For Blair there is no such thing as legal principle. The Guardian.

[6] Sculthorpe, T. (2016, July 15). May urged to SACK Andrea Leadsom just a day after putting her in the Cabinet as it emerges she claimed it was ‘sensible’ not to have a male nanny in case he’s a paedophile. Daily Mail.

[7] Yes, I know this is actually a myth, invented by Australians in 1977, but I’m sure you can see the point I’m making.

Advertisements