Wednesday, 14 March 2012

The guilty rape victim: the law isn't always "fair"

The Guardian is predictably outraged that the Court of Appeal has "refused" to quash the conviction for perverting the course of justice of a woman who falsely retracted a rape allegation against her husband. The Independent, meanwhile, headlines its fairly sober account of the case with the editorialising words "the court ruling that shows the injustice of Britain's rape laws".

It certainly sounds bad. "Sarah", a victim of longterm domestic abuse who her supporters say was coerced into withdrawing the rape claim, was briefly jailed in Novemeber 2010 after a staggeringly unsympathetic judge gave her an eight-month sentence. She was released on appeal (after spending more than two weeks in custody away from her children), and an embarrassed Director of Public Prosecutions hastily rewrote the CPS guidelines to ensure that women in her position would not be charged in future. But the conviction remained.

"Sarah" and her legal advisers hoped, indeed expected, that the conviction would be overturned, arguing that she was both under duress and suffering from post traumatic stress disorder at the time of the trial. Although she had pled guilty to the perverting the course of justice, her lawyers contended, she would not have done so had she been properly advised or had all the medical evidence been available. And even under the existing CPS guidelines the prosecutors should have exercised their discretion and not brought charges against her. Therefore she should never have been given a criminal record.

None of these arguments found favour with the Court of Appeal. The Guardian's reporting of the case leaves little doubt that the decision is both outrageous and surprising. One QC involved with the case is quoted making the very peculiar assertion that "the law simply cannot tolerate a situation whereby such an injustice is maintained because of perceived constraints in the current legal framework." That sounds to me - perhaps I've parsed it inaccurately - as "the law cannot tolerate the law". The question, after all, is not whether Sarah's conviction, and especially her imprisonment, was unjust. Everyone involved seems to accept that it was. The point at issue was whether the conviction was technically unsafe, whether it was legally and/or procedurally flawed.

But it's easy to lose sight of that when you read that Sarah's husband (Terry) had been charged with no less than six counts of rape against her, or that (as her counsel told the court) he had forced her to work in a "massage parlour", ("this brothel"), confiscated her wages and then "proceeded to attack her emotionally for doing what she had done at his insistence and for his gain". Lord Judge, we read, sniffily dismissed the appellant's case as relying on little more than a "somewhat nebulous basis of unfairness". He sounds - or is made to sound - like the soulless embodiment of dry-as-dust legal formalism, denying justice on a technicality. Unimaginatively and inflexibly upholding a male-made law that does not comprehend, or even recognise, the experiences of women.

As one comment on the Guardian piece put it,

This decision is not justice. It is an appalling, sexist, inhumane and wicked "example" being made of a woman who found herself in too awful a position to be able to make any good decision, and who, by being in such a position through no fault of her own, inconvenienced the courts.

Looking at the actual judgement, however, things do not seem to be quite so clear-cut. For one thing, the facts as set out are open to more than one interpretation. While Sarah had undoubtedly suffered severe abuse and was, more generally, under the thumb of a jealous, manipulative and violent partner, it was far from obvious that she was acting merely out of fear at the time that she withdrew the rape claim.

The police gave her every opportunity to tell them that she was being threatened; indeed, they put her under what seems to have been considerable pressure to admit as much. Not only did she deny that Terry was threatening her, she insisted that she had other reasons for wishing to withdraw the complaint.

They discussed whether her husband had put emotional pressure on her, whether she was concerned about the position of the children, and whether her support network was limited. She was questioned whether he had convinced her to go to the police and withdraw the allegation, and whether he had an emotional hold over her. She was asked whether she had received sufficient support from outside agencies. Even at that stage the police pointed out that if the allegations were true and what she was telling the police now, that is, that the retraction was the lie, she could still tell them about it. She was adamant.

Judge thought it "inconceivable" that had she indeed been threatened with violence or rape if she did not retract the claim she would not have said so at the time.

Sarah claimed, indeed insisted, that she had accused her husband of rape because he disapproved of her work in the massage parlour and she wanted to get back at him. However unconvincing this might seem in retrospect, "this was the explanation that she chose to provide for her false allegations against her husband. She was later to repeat and amplify it."

Purely psychological pressure might, of course, amount to duress. But the relationship between the two protagonists seems to have been rather more complicated than simply one of abuser and victim. At the time she retracted the rape claim, Sarah had in fact returned to her husband. They had spent Christmas together, in violation of Terry's bail conditions. They had sex: "This was not rape, nor even reluctant acquiescence, but consensual sexual intercourse. It happened because, in her reported words, she 'wanted' to." When the breach of bail was exposed, she begged the police not to arrest her husband. He was actually on remand (for the bail violation) when she went to the police to withdraw the allegations, and thus not in a position to threaten her.

She seems to have decided, at that stage, to forgive her husband his sexual violence towards her and to stay together, partly for the sake of the children. She was determined to do whatever it took to prevent the case against him going to trial -- even at the risk (of which she was fully aware) of being put on trial herself. On this basis, and although it seems the police still believed that she had been raped, she was charged with attempting to pervert the course of justice by making a false allegation against her husband.

Shortly before the case reached court that summer she changed her story, telling her solicitor that she had indeed been raped. But even then she did not claim that Terry had been threatening her. Instead she explained that her husband and sister-in-law had both persuaded her that she would probably not go to prison for the lie, and that she didn't want to deprive her children of their father.

Her statements to the police at the time were, the judges concluded, "not consistent with any possible defence of duress."

And that's the key issue, really. "Duress", legally defined, is not the same as pressure. A pre-sentence report, compiled after extensive interviews with the defendant, described the marriage as turbulent, with a history of abuse. But it also stressed that she had tried to make it work for the sake of the children, and because he threatened to harm himself if she left him. It mentioned her feelings of "immense guilt" when her husband was arrested for raping her, and (contrary to what was said at the appeal) suggested that far from forcing her to work in the massage parlour he had disapproved of it from the start; it had "caused immense difficulties between the couple." He did put her under pressure to withdraw the allegation, but worries about the children, her "financial difficulties, lack of family support and isolation" also played their part.

Sometimes he would be so upset that he appeared to be having a nervous breakdown. Thinking of it now it was all a bit over the top, but at the time it made me feel all the more sorry for him. Although he had done what he had done to me, by this time I was feeling responsible for all the upset and worries that he had about missing his children and being frightened of going to prison. The children were upset because they couldn't see their father and it was basically all my fault.

Judge also mentions a letter which Sarah wrote to her husband in prison after she retracted the allegation, and which strongly implies that he had advised her not to: "I told you I would make it all go away and I will by doing what you said not to do. I want you home babe, we all miss you so much. I cry every night and every morning coz your not here."

This complex, dispiriting and all-too-common tale of domestic misery can't be fitted easily into the requirements of the legal defence of duress. In truth, her motivations were more complicated than that. Her feelings for him at the time were, despite the abuse, genuine. The police, it might be said, were themselves putting her under unconscionable pressure by threatening her with criminal charges if she refused to co-operate with a prosecution that she no longer believed in. But from their point of view, and the court's, there was a strong public interest in punishing crime, especially something as serious as rape.

The CPS has since acknowledged that it is inappropriate to bring charges against a woman in Sarah's position, and has revised its guidelines accordingly. But to say that in the circumstances it would have been better not to have charged her is not the same as to say that she was not guilty. She was properly convicted, even if she was not properly sentenced. Perhaps the law needs to be revisited. But it's hard to see how the defence of duress could be extended to cover cases like hers without making it too wide, and without enshrining in law a pseudo-Victorian view of women as helpless victims unable to think or act for themselves. In any event that would be a matter for Parliament.

We are left, then, with what Judge (dismissively?) called "the proposition that it is somehow not fair for the appellant to remain convicted." That has been the tone of the coverage, of most of the comments on Twitter and beneath the Guardian's report. But twisting the facts and the law so as to overturn a valid conviction, just because of an outcry in the Guardian, would set a dangerous precedent.

It seems to me, though, that this would be an ideal case for a Royal Pardon.