I can't take the rap for what's his name from Big Bang Theory, but I did softly softly catchee the monkey grooming. And ooooh just look at me raping that Cambodian Circus performer by being stronger than her. And there's a see-saw to symbolise the imbalance of power, of course. Couldn't have wished for a better background prop. Apart from deranged Marx-Feminists, everyone can tell that these are jokes. However, they're actually not very much more ridiculous than real sex crime laws.
Criticism isn't much use unless I can offer any alternatives. Here are some suggested remedies. They're written with particular reference to how sex is dealt with by the criminal law, but most of the points would apply equally well to other areas of crime.
Legislation
UK law criminalises far too much that causes no tangible harm. The Sexual Offences Act 2003 is rich with examples, the best of which is section 15 "meeting a child following sexual grooming." Despite the name, the legislation doesn't actually require that there has been any communication of a sexual nature. Essentially, it criminalises travelling from one place to another while thinking the wrong thoughts. Even worse, most prosecutions using this legislation are for the attempted version, "attempting to meet a child following sexual grooming." Why? Because the child doesn't exist. What happens is that people target unsuspecting men on adult dating apps like Grindr and Tinder, which require users to be 18 or over. They then "admit" to being underage after all and try to entice the target to make sexual comments or lure them to a meeting with the phantom child. Obviously, this serves no genuine child protection function. The people who do this are - let's call a spade a fucking shovel - perverts who've found a way to indulge their own sexual fantasies while masquerading as vigilantes or police officers.
The function of sex crime law should not include Mary Whitehouse-style (or Hays Code-style, if you're American) disapproval of acts that cause no tangible harm, however distasteful they might be to most people. In addition, the law should refocus away from the concept of consent and concentrate on force, coercion and injury. Consent exists only in the minds of the complainant and defendant and there can be no independent evidence of it. In sex crime trials where consent is the issue, jurors are expected to decide who thought what about what the other person might have thought, years before. That's ridiculous. We shouldn't expect jurors to be both telepaths and time travellers. By construing prohibited sexual activity in terms of force, coercion or injury, we ensure that there is both independent supporting evidence, and an objective rationale for criminalisation.
Equality of arms
In medieval times, a dispute that could not be resolved peacefully would be settled using trial by battle: a duel between the two parties. God was thought to favour the side in the right, and grant victory. But if we have a duel where I have fine armour, a sharp sword and a strong shield, while you only have a pointed stick, God's will is a little harder to see because of the unfairness. So a point of law developed that each duelist had to be similarly armed. Nowadays, the duel is not fought with weapons but with debate: a prosecution accusation and a defence rebuttal. Each side can attack the other and probe for weaknesses. The analogy with trial by battle is clear. Unfortunately, most defendants have a pointed stick while their opponent - the state - has a fucking great big broadsword, some cavalry and a band of archers. How is this the case?
The state has thousands of police investigators available to it. It has offices full of lawyers covering all specialities. It has expert witnesses of all kinds on retainer. It has a budget of billions of pounds. A defendant has none of this. If your income is below a certain amount, you're entitled to very restricted funding for a lawyer. American readers will be aware of the standards of representation available from Public Defenders. Same in Britain. Plus, if you earn above a certain threshold, you have to pay for it out of your own pocket. Let's also not forget that the defendant actually funds the state's resources through his taxes.
It's fairly clear that most police sex crime units are wholly partisan towards conviction, prosecution and complainant. They simply don't investigate reasonable lines of enquiry that might undermine an accusation. Or if they do accidentally discover something, they usually try to hide it (note the identical police behaviour in those two links, 42 years apart). Ordinary citizens are helpless against these massive, state-sponsored resources. They are further handicapped by only having access to whatever evidence the police or prosecution lawyer chooses to make available. Defendants rich enough to hire private detectives usually achieve dramatically more positive results. Evidence apparently ignored or beyond the ability of the police to find is not-so-miraculously discovered in minutes by PIs.
There are two possible solutions. Firstly, compel even-handed and thorough police investigation by law or regulation, along with disclosure of ALL material, no exceptions. Any prosecution found not to meet this standard must be immediately discontinued with prejudice. Or secondly, we acknowledge that the police work solely for the prosecution and establish a parallel and equally funded investigative body that works on behalf of the defendant. I favour this latter option.
Evidential rules
i) The main requirement here is a two-part standard: There should be unimpeachable evidence that the crime alleged did indeed occur, and compelling, independent evidence that the defendant committed it. Without these two, no prosecution and certainly no finding of guilt beyond reasonable doubt should be permitted. The UK government's position is that uncorroborated witness testimony is capable of providing proof beyond a reasonable doubt. However, the current behavioural science consensus is that humans can tell truth from lies only about half the time. Coin toss odds don't come anywhere near the standard of beyond reasonable doubt, so the UK government is talking shit. Another common argument for allowing convictions based on uncorroborated testimony is that sex crimes often happen in private, so other evidence is not available. Well, many other crimes happen unwitnessed too. Burglary for example. And if the intruder also leaves no trace and is not spotted by neighbours or passers by, most people can see that it's absurd to prosecute him based only on the homeowner's accusation. If we convict and punish people, it should be based on firm evidence and a high level of proof, NOT on schoolyard-level tale-telling.
ii) Corroboration by volume - that is, several people making similar accusations - should be prohibited. Jurors don't know if any of the claims is true: that's exactly why the trial is being held. If they don't yet know if any of the accusations is true, then none can corroborate any of the others. Corroboration by volume assumes and prejudges the truth of the very issue the trial is supposed to determine. This is the logical fallacy of Begging The Question. And I think you'll agree that logical fallacies should be excluded from criminal trials as much as possible.
iii) There are severe restrictions on what may be explored during the cross examination of sex crime complainants. I oppose the state empowering itself to prosecute individuals, and then restricting how they may defend themselves. It's an equality of arms issue again. There should be broad scope for a defendant to challenge the case against him as he sees fit. This definitely includes exploration of issues that have been made part of the prosecution case, such as sexual proclivities and previous behaviour.
iv) Finally, I oppose anonymity for complainants. Standing by a public accusation of serious wrongdoing is an acid test of the accuser's veracity. Publicly naming defendants is said to facilitate justice because it allows further prosecution witnesses to come forward. The same should apply - equality of arms AGAIN - on the other side. Public scrutiny of complainants can allow witnesses to come forward to assist the defence. The trial of footballer Ched Evans was a good example. It was only when the complainant was illegally named, that witnesses recognised her and could give evidence about her previous behaviour that supported the defence.
Penalties and Alternatives
i) Apart from a tiny proportion of cases of the most brutal and violent nature, penalties for sex crime convictions have little correlation with the actual harm caused. Instead, sentences seem to relate to enforcement of a moral standard, or expression of moral disapproval. Some people do think the law should enforce a moral standard. That's why, for example, some countries whip adulterers or stone them to death. I think penalties should instead be proportionate to the tangible harm inflicted - if any. Where there is none, there is no objective rationale for criminalisation, as already outlined above.
ii) Some people have aspects of their sexuality that are difficult to express legally. I make no judgements about what goes on in people's heads or what their tastes are. But someone who has rape fantasies, for example, might well have some obvious problems when trying to express that part of his or her sexuality. I think that counselling provision should be made where people can get help without fear of negative consequences. This must be morally and politically neutral, delivered in medical and supportive rather than legal and punitive terms. It should not be focused on "curing" people of having the "wrong" sexuality (as we used to try to do to homosexuals). Neither should it try to brainwash and browbeat people into adopting the official state-approved sex life. The emphasis should be on finding sexual expression that causes no harm to others. This would be greatly preferable to waiting for people to harm others and then punishing them.
iii) The various court orders relating to sex crimes are an outrageous affront to the democratic rule of law. They allow the state to impose bespoke criminal legislation on certain categories of people but not others, creating inequality under the law. They circumvent scrutiny of legislation through the democratic process. The state claims that they are administrative, not punitive, in nature, but criminal sanctions are attached to acts or omissions that are not criminal for anyone else. Self-evidently this is post-sentence punishment. It's a policy copied almost exactly from Nazi Germany (the Schutzhaftbefehl - protective custody order), and it has no place in the civilised world. Such orders should be completely abolished. The same arguments apply against the sex offenders' notification requirements. It is well documented in the study literature that sex offender registry policies do not increase public safety, and that reoffending rates are close to statistically insignificant. So once again, it's a post-sentence punishment in itself, plus criminal penalties for inconsequential and irrelevant infractions that cause no harm to others and aren't crimes for anyone else. Stuff like failing to notify police of the number of a new bank card. Unless you've been hiring underage hookers using your American Express, what the hell does that have to do with anything, and how on earth does it warrant a prison sentence of 5 years? Complete abolition of this insanity is the solution.
Compensation
Cash compensation for accusers should be replaced with provision of counselling services. This is the appropriate reparation for a genuine victim of sex crime. A cash incentive to make claims which don't need to be supported by a shred of evidence warps and corrupts the criminal justice process. It is no different to bribing witnesses.
Accountability
There should be a presumption of prosecution for police and government officials who have lied or breached procedures. Prosecution advocates too. Their professional ethics regulations are never invoked. No new legislation is needed: it's already against the law. Where a prosecution advocate, official or policeman has continued with a tainted or flawed case (Mark Pearson is the best/worst example I can think of), this should be prosecuted as the common law offence of perverting the course of justice. Let's not forget complainants. Every time a complainant is found to have told an untruth, the trial must be discontinued with prejudice. The complainant should then be prosecuted for perjury or perverting the course of justice. And the cops and officials involved in pushing forward a prosecution based on outright, proven untruths should also be prosecuted for perverting the course of justice. This would be a simple and effective policy to encourage all on the prosecution side to S T O P F U C K I N G C H E A T I N G.
Appeal
Few improvements should be required to the appeals process if my suggestions above are implemented. Others with more legal knowledge are better placed to comment on the finer points. However, the real possibility test is too restrictive. Convictions where ANY rule or procedure has been breached should be automatically quashed. The conduct of trials should be perfect and beyond reproach.
Media
Outside the criminal justice system, but nevertheless connected, are the problems with crime reporting in the media. Typically, only the prosecution case is reported, and in great detail. The defence case is seldom mentioned. Reasons for acquittal are hardly ever examined. Successful appeals are rarely reported at all, let alone with reasons why the conviction was unsafe. Journalists seem only to regurgitate what is fed to them by police or CPS spokesmen, without any critical analysis or fact verification at all. The press is completely failing in its most important democratic responsibility: scrutinising government and holding it to account. The UK's press regulatory body, the Independent Press Standards Organisation might be open to some input to their Editors' Code, to drag up the shitty standards of journalism.
Now it's your turn. Which of these, if any, do you agree with? What, if anything, would you add? Where's that Cambodian girl's right arm?
Christopher Trinnaman
December 2019
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