Why does police mishandling of evidence only make headlines in rape cases?
The media frenzy around the Liam Allan and Isaac Itiary trials will only act to deter future complainants from coming forward.
Published 21.12.2017, the Guardian
How do cases that highlight problems around disclosure in criminal trials become a media frenzy? That is what happened following the collapse of two rape cases in the last week. The trial of Liam Allan collapsed after it transpired that the Metropolitan police failed to disclose relevant evidence that might support the defence case until moments before the trial. A second case, the trial of Isaac Itiary, collapsed after material was not given to the defence team until his lawyers asked for it.
Scotland Yard confirmed that all of its current sexual offences investigations are to be reviewed to ensure compliance with disclosure legislation. These cases have rightly highlighted the systematic issues about fair disclosure, which have the potential to cause injustice for defendants and complainants alike.
But what is regrettable is a disproportionate focus on failed rape prosecutions when collapsed trials for other crimes are widespread, yet they rarely hit the headlines. A report in oanuly this year concluded that the police did not properly disclose evidence in four out of 10 crown court cases, resulting in delays and collapsed trials. Rather than investigating disclosure in all serious criminal cases, one well-rehearsed story emerges: complainants in rape trials often lie or are slightly unhinged – the cliched woman in the attic of Gothic fiction – and so, defendants should be granted anonymity.
Unusually, it was the prosecution’s own barrister, Jerry Hayes, who uncovered the lack of disclosure. He said: “I would like to apologise to Liam Allan … there could have been a very serious miscarriage of justice.” This is the same Jerry Hayes (a former Tory MP) who was publicly criticised after saying on Question Time in 2013: “Clearly they weren’t raped because the person wasn’t prosecuted,” while making an argument in favour of anonymity for defendants in some rape and sexual offences cases.The microscopic reporting of collapsed rape trials is part of a broader backlashagainst the Harvey Weinstein allegations and the #MeToo movement, which exposed endemic sexual harassment and even rape. The reporting of the Allan and Itiary cases has the power to regress, not progress, gender equality.
More needs to be done to encourage women to report cases of rape. But this does not entail granting defendants anonymity
The judge in the former case explicitly said that: “Mr Allan leaves the courtroom an innocent man without a stain on his character.” However, the reporting on cases such as these, with a focus on a few text messages out of 40,000, may leave future victims less likely to come forward.
The reporting of the Allan case sends a message to women that your allegation of rape might not be believed if you claim that a sexual encounter was consensual and later report rape; it might not be believed if you have ever discussed rape fantasies; and that your sexual preferences will be made public. This contrasts with the law, which says a woman can withdraw her consent to sexual intercourse at any time.
Bizarrely, the CPS has guidance on charging women who falsely allege rape and/or domestic abuse but not any other serious crimes. An overzealous emphasis on prosecuting alleged false rape complainants has resulted in the UK prosecuting more cases than the US – 109 women between 1999 and 2014. Yet, only 3% of rape reports are false.
Prof Lisa Avalos, who has researched the prosecution of alleged false rape reports, argues that fear of prosecution deters complainants from coming forward. I vividly remember a friend of mine who was raped asking me whether she should report the incident because she might not be believed and she could be prosecuted. I felt angry by the stark reality that she could be re-victimised by a system that is supposed to support her and ensure justice is upheld.
Rape is one of the most under-reported crimes. In England and Wales, about 13% of reported rapes end in a conviction – that is, conviction on a range of charges from rape to lesser offences such as sexual assault and others. More needs to be done to encourage women to report cases of rape. This does not entail granting defendants anonymity in rape cases. On Tuesday, justice secretary and lord chancellor David Lidington told the BBC’s Today Programme that he would keep an open mind about granting rape defendants’ anonymity.
But why not grant defendants’ anonymity in murder, terrorism or paedophilia trials? What materially distinguishes rape? Perhaps it is the fact that the complainants are overwhelmingly female. There is no empirical evidence that women who make complaints that they have been sexually violated in the most egregious way are less likely to tell the truth than any other category of complainant. Let’s not forget that naming those accused of rape can result in other women coming forward to report other incidents of assault by the same perpetrator.
The lesson learned from the Allan and Itiary cases is that drastic public funding cuts to the criminal justice system degrade justice. Radical reforms of the current disclosure process are needed in all criminal cases. This will require increased public funding of an under-resourced public body and perhaps sanctions for non-disclosure. Reform of the justice system should be the message we learn, rather than a moral panic that some women lie about rape.
Year in Review: Charlotte Proudman Looks Back on 2017
1. Baroness Hale appointed as the first woman supreme court president
Baroness Hale was sworn in as the first woman President of the Supreme Court of the United Kingdom on 2 October 2017. Occupying the highest legal position in the country, Baroness Hale has broken the final glass ceiling in achieving the most senior legal appointment in the country. She has shown through some of her judgments that “women are equal to everything”. This is the motto – Omnia Feminae Aequissimae –that she had engraved on a coat of arms when she was appointed to the Law Lords in 2004. Baroness Hale is no longer a lone woman in the highest court of our country, as Lady Justice Black joins her, the second woman to be appointed to the Supreme Court. They sit alongside 10 white men from largely elite backgrounds.
- Gender inequality pervasive amongst the judiciary
A homogenous group of socially privileged white men are still disproportionately represented in the most powerful judicial positions in the country. Government judicial diversity statistics in 2017 show that only 28% of all court judges, 24% of Court of Appeal judges and 22% of High Court judges were female, which is consistent with 2016. The gender imbalance between male and female judges in the UK is amongst the worst in Europe. Recognising the importance of gender balance to promote justice and fairness, I am a strong advocate of quotas for women in the judiciary. It is a system that has been tried and tested, having been introduced in the International Criminal Court, the European Court of Human Rights and the Belgium Constitutional Court, which ensures a more equal gender balance in the judiciary. Should the Labour Party attain political office, Baroness Shami Chakrabarti would become the Attorney General and gender quotas could firmly be on the agenda. In her book, Of Women: In the 21st Century Baroness Shami Chakrabarti sets out a compelling and robust argument for quotas in the judiciary, which, has the power to persuade even sceptics.
- Sexual harassment in the legal profession
Post-Harvey Weinstein, sexual harassment in the workplace has remained in the media eye. The #MeToo campaign that followed allegations of abuse from Hollywood stars, media icons and politicians, led to women sharing their stories of rape, assault and sexual harassment at the hands of men. Lawyers shared on twitter their experiences of sexism, bullying and harassment in the workplace. A group of barristers established an anonymous “Behind the Gown” twitter account to highlight the abuse of male power at the Bar that has led to the exploitation and marginalisation of women.
As sexism in the legal profession gained traction, I took part in a few media debates that garnered attention mainly due to those on the other side espousing sexist attitudes towards women. On Good Morning Britain solicitor Nick Freeman argued for the introduction of a three-year statute of limitation for sexual assault cases. It is an ill-conceived and retrograde step which will have the inevitable effect of deterring, discouraging or disqualifying women from coming forward and reporting historical cases – as the evidence from the United States makes clear.
Also in the news is Ben Emmerson QC of Matrix Chambers, a high profile human rights barrister accused of sexually assaulting a colleague. An independent review by Dame Laura Cox QC into Matrix Chambers’ handling of a serious of sexual misconduct allegation concluded that some of the actions of senior management had been “wholly inappropriate” and that there were “institutional failings”. It appears even human rights chambers may not be free of sexism and sub-optimal practices around them.
The Equality and Human Rights Commission established by statute in 2006 recently wrote to five Magic Circle law firms – Allen & Overy (A&O), Clifford Chance, Freshfields Bruckhaus Deringer, Linklaters and Slaughter and May – to warn that it could take legal action if they fail to respond to sexual harassment complaints in the workplace. The EHRC is asking firms to “delegate responsibility for ensuring a shared understanding and effective implementation of the legal guidance on sexual harassment, as defined in the Equality Act 2010.” The firms must respond by 19 January 2018.
Meanwhile, the head of the Bar Council, Andrew Landon QC, has written to all heads of Chambersadvising them of the Bar Council’s zero-tolerance approach to, and guidance on, sexual harassment, and to ask Chambers to review their policies on sexual harassment and equality. The legal profession, which is responsible for upholding the rule of law, must also be held accountable for discrimination and sexual harassment against women. Achieving gender parity within the legal profession is one step towards changing the male dominated culture in the profession that creates the conditions for sexual harassment and discrimination, which can have devastating effects for women lawyers.
- Key challenges for BAME lawyers
Race diversity remains a core challenge in the legal profession. The Lammy Review, conducted by David Lammy MP, is an independent review into the treatment of, and outcomes for, BAME individuals in the criminal justice system. It exposes the racial bias in our justice system that has devastating consequences for Black and Ethnic Minority individuals.
In an article celebrating Black History Month in the UK, Chambers Diversity shared the experiences of BAME lawyers in the legal profession. Female lawyer Funke Abimbola explained that she had “experienced both racial and gender-based discrimination in my career”. Representation of BAME court judges is between 8-9% in London and the Midlands. The BAME population in the UK is around 6%. The question is: how many BAME court judges are women from socially deprived backgrounds? Social deprivation is better understood with the concept of ‘intersectionality,’ which is used to define the multiple layers of discrimination individuals can experience on the basis of gender, class, nationality, disability and religion. These different aspects of identity can impact upon people’s experiences of structural inequality and oppression.
Abimbola contends that, “Because gender diversity has been the focus of attention for several years, this has been at the cost of advancing the race agenda. This now means that race diversity is 20 years behind gender diversity.” The promotion of gender equality has the potential to impact upon 51% of the population including BAME women. Achieving diversity does not involve pitting gender against race or measuring the success of gender equality against race equality when the intersecting patterns of marginalisation are complex and inter-related. It is important that any analysis of discrimination includes gender, class, and race, in order to show people’s different experiences of marginalisation.
- Diversity can set law firms apart in a competitive market
Diversity is fast becoming a means of distinguishing between law firms and identifying those that have a male, pale and stale image. In a competitive legal market, clients are now focusing on law firms’ diversity. The diversity argument, which was originally pioneered in business, has proved successful. Catalyst research shows that companies with a higher percentage of women in executive positions have a 34% higher total return to shareholders than those with lower numbers of women. The argument is that increasing and sustaining diversity, generates new ideas and enhances productivity and efficiency that leads to growth and healthier profit margins. An article promoting the business case in law firms under the guise of achieving diversity encourages “diverse attorneys to write articles and op-eds – especially those who describe their own personal experience and journey being a diverse attorney”.
The Law Society published a report titled “Diversity and inclusion in law firms: the business case” which argues that diversity is important because it is the law, the client base and profession is changing and diversity can mean achieving equality policies. A quasi-capitalistic enlightened self-interest rationale for encouraging gender equality may be effective. However, I have long been wary of applying such crude profit-maximising arguments to the law. The rule of law is underpinned by principles of justice, fairness and equality, rather than financial imperatives.
Overall then, strides have been made towards exposing gender inequality and achieving gender equality. The next 12 months will doubtlessly reveal whether the ramifications of a post-Weinstein era can translate into tangible and durable, improvement in the lives and career opportunities for women.
There is a witch hunt happening right now – but it’s not against men
In the past, women were symbolically burnt at the stake or drowned in a public spectacle. In a more civilised society, women are today put on trial by media with vultures picking apart their personal history, which is transformed into sensational headlines.
Published 7 November 2017, Independent
Over the past month, allegations about sexual abuse have rocked Hollywood, the media and now Parliament. What was once considered part and parcel of the workplace – a grope here and a sexist comment there – is being queried and challenged. Courageous women have collectively put their head above the parapet and shared their experiences of wide-ranging abuse in professional contexts. In doing so, they are redefining the acceptability of men exercising power and privilege over women who often find themselves in subordinate positions. This has the capacity to be a watershed moment for gender equality. But, with almost clockwork inevitability, a backlash has ensued, with members of Parliament and some sections of the press branding the movement a “witch hunt”.
The choice of terminology, “witch hunt”, is highly instructive. Demeaning women’s lived experiences of abuse to accusations of a “witch hunt” is a reactionary attempt from members of Parliament to Donald Trump to conceal structural inequality. The language of “witches” and “hunts” is in itself sexist – after all, how many male witches have you come across? The term is intentionally used by the powerful to convey visceral images of hysterical women hunted, tried by death and burnt at the stake before their community.
Centuries ago, “witch” was used to describe an evil and otherworldly oppressor, who was put on trial due to people’s irrational fears that they could become victim to women’s black magic. Today, women are still portrayed as “witches” possessing sexually-potent power, condemning men to victimhood. The term is used to portray perpetrators of abuse as unwitting victims to a modern and sophisticated cult of feminist troublemakers. In an unusual twist, men who put women on trial for being witches historically are now defining themselves as victims. Victimhood in masculinity has gained currency with resounding arguments that feminism is defunct and the opposite sex is now the real victim. But men are not victims of a moral panic; they are being held to account for sexual harassment, abuse and rape.
Two Halloweens ago now, I took a trip from Cambridge, Massachusetts, to Salem. It was a surreal experience: Inordinate sums of money spent visiting former homes of witches while graveyards are transformed into tourist attractions. In the 17th century, it wasn’t such a quaint town – around 19 people were hanged after claims they were bewitched by the devil. Typically these women were unconventional; they may have been childless and unmarried at an age when such expectations were the norm; they may have had a bad reputation and “questionable” – in other words, unconventional – morals.
Joan of Arc and Anne Boleyn are two controversial women who sought power in patriarchal societies and were condemned as witches. Joan of Arc in the 15th century commanded a French army of men to many victories. Dressed as a man reportedly to protect herself from the male gaze, Joan of Arc’s defeated opponents thought she was a witch in disguise. Both women met a tragic end: Burnt at the stake and beheaded.
In the past, women were symbolically burnt at the stake or drowned in a public spectacle. French philosopher Michel Foucault contends that Western penal systems historically performed punishment in public as a method of deploying power over a community who were taught that non-conformity results in brutal consequences. In a more civilised society, women are today put on trial by media with vultures picking apart their personal history, which is transformed into sensational headlines. The purpose is to cast doubt on women’s credibility. Stale and regressive questioning of women’s conduct is the focus of all daytime talk shows, from “have sexual accusations gone too far?” to “why didn’t women speak out earlier?”
The relentless, unsparing, voyeuristic scrutiny of women’s behaviour maintains power over them, as women are expected to justify their actions when they do not conform to a script of how women ought to act when sexually abused, a script shaped by hegemonic male power. Kate Maltby experienced reprisals after going public with Damian Green’s alleged inappropriate behaviour towards her. Jan Moir, writing for the Daily Mail, referred to Maltby as a “pushy lady,” “poison” and “disingenuous”.
The cost of women speaking out is high – personal onslaughts, vitriol and threats to career advancement. It begs the question: Why would women speak out, rather than why don’t they? Centuries ago women were warned against non-conformity with the threat of public execution. Today, women who dare challenge the dysfunctional status quo do so at risk of public character assassination and ridicule.