APPENDIX 31
Memorandum submitted by Victim Support
Victim Support is pleased to note that the new
Sexual Offences Bill will be examined by the Home Affairs Committee
and we would like to take this opportunity to put our views forward
on the topics on which the Committee is consulting.
Victim Support is the national charity working
to help victims and witnesses of crime. We are an independent
organisation, offering a free and confidential service, irrespective
of whether or not a crime has been reported. Each year, trained
volunteers and staff based in a network of community groups offer
emotional support, practical help and information to over one
million victims of crimes ranging from burglary to the murder
of a relative. Victim Support also runs the Witness Service in
the criminal courts in England and Wales and a telephone Supportline
for victims of crime offering information and referral to local
services. Victim Support also works to increase awareness of the
effects of crime and to achieve greater recognition of victims'
and witnesses' rights.
During 2001-02, Victim Support Schemes helped
4,965 people who had suffered rape and 14,200 who had suffered
other sexual crimes. These victims were offered emotional support
and practical help and information provided by volunteers who
had undertaken specialist training to work with victims of rape
and sexual offences. In addition, victims of rape and sexual offences
were offered support by the Witness Service in the criminal courts.
Supportline responded to 1,079 calls about rape and 524 calls
about other sexual offences.
Consent and presumptions about the absence of
consent: Clauses 77 and 78
Defences of "honest belief in consent"
and "mistake of fact in age"
The Committee is particularly interested in
views on the statutory definition of consent (clause 77) and the
presumptions about the absence of consent (clause 78).
The Committee will be aware that this legislation
has been drafted as a direct result of the review of sex offences
and the recommendations contained in the report Setting the
Boundaries published in July 2000. Victim Support participated
as a member of that review and fully supports recommendations
made in that report in relation to consent.
At present, where the defence asserts that the
defendant did believe that the victim consented, the defence has
virtually a free hand to introduce evidence that does not relate
to the specific incident charged. Despite the partial protection
offered by Section 41 of the Youth Justice and Criminal Evidence
Act 1999, this leads to questioning of the victim on all aspects
of their life. The aim of the defence is to paint a picture of
the victim such that the jury could imagine how the defendant
could have believed in his own mind that the victim consented.
This situation cannot be allowed to continue as victims are open
to degrading treatment in the witness box and the impression is
given that they are on trial through detailed examination of their
lives and sexual history.
Subject to what we say below about "honest
belief", we support clauses 77 and 78 as they enact recommendations
4, 5 and 6 of Setting the Boundaries. We imagine that Rules
will be required for clause 77 to cover the procedure where there
is an issue about a person having the capacity to make the choice.
Clause 78 brings common sense into the legislation by requiring
the defendant to have acted in a reasonable way and clause 78(2)
should protect the victim from unnecessary and intrusive cross-examination.
We consider that the proposals for legislation will help redress
the problems for victims and will in some situations put the onus
on the defendant to prove that the victim consented rather than
that he believed the victim consented. We support the list of
circumstances in clause 78 at subsections (3), (5) and (8) in
which consent is assumed not to have been given.
The Committee is particularly interested in
views on the defences of "honest belief in consent"
and "mistake of fact in age". We contributed to the
views set out at 2.13 and 3.6 in Setting the Boundaries
and support implementation of recommendation nine that:
"a defence of honest belief in free agreement
should not be available where there was self induced intoxication,
recklessness as to consent, or if the accused did not take all
reasonable steps in the circumstances to ascertain free agreement
at the time"
and recommendation 21 that:
"a mistake of fact in age should be available
as a defence but with the following restrictions that it should
be limited to honest and reasonable belief and that the defendant
has taken all reasonable steps to ascertain age".
We would like an assurance that the wording
in clauses 1, 3, 5, 7 and 78 is sufficient to enact these recommendations
so that where a defendant's belief is unreasonable, the offence
is made out. We are not clear how the defendant's power of rebuttal
of the two presumptions in clause 78 will work in practice and
we are anxious to ensure that the victim is protected from inappropriate
cross examination at all times. The example given in the explanatory
notes of the defendant's rebuttal of the first presumption which
relates to lack of consent is that a friend may have been in the
room next door and heard what was going on. The example states
that the friend could be called to give evidence. Will the situation
then arise where the victim is recalled to counter that evidence.
No examples are given for rebuttal of the second presumption which
relates to belief in consent and we would like a better understanding
of the process that will take place in court where the defendant
rebuts this presumption on the balance of probabilities.
In the longer term, this legislation should
bring about a better understanding of appropriate behaviour that
will serve to protect the public from sexual offences.
Rape: Lesser or more serious offences
We endorse the view set out in Setting the
Boundaries (2000) that rape should not be subdivided into
lesser or more serious offences and we are pleased to note that
the Bill maintains the status quo.
Anonymity
The Committee is also considering the question
of anonymity of those accused of sexual offences. We have been
considering whether such anonymity would have any effect on victims
of sexual offences. In the situation where a serial rapist or
sex offender is accused of a sexual offence, it may be in the
interests of other victims of that offender to know of the accusation.
The victims may feel encouraged to report the offences whereas
before they may not have felt able to. This, in turn, may lead
to better protection of the public from that sex offender.
The Committee will be aware of the situation
that arose in the cases of R v Edwards in September 2000
where five women made separate but identical claims against a
man accused of raping a sixth woman. The prosecution was able
to introduce evidence of the earlier complaints as similar fact
evidence. We understand that people became aware of the identity
of the accused through the media and that this encouraged other
victims to come forward. The point here is that if the identity
of an accused person remains unknown, such similar fact evidence
may not come to the attention of the prosecution and this could
be to the detriment of the criminal justice process and the current
victim.
On the other hand, in cases where the accused
is known to the victim, revealing the name of the accused may
lead to the identification of the victim which could have serious
repercussions for the victim.
March 2003
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