HJ Talks About Abuse

Alan Collins and guest Gary Burgess discuss Coronavirus

Partner, Alan Collins, is joined in this latest podcast by freelance broadcaster and journalist, Gary Burgess. Many of you may know Gary from reporting on ITV News Channel, his journalism and his blogs.

In this podcast Alan and Gary discuss Coronavirus and what we perhaps can learn from the crisis that we are all having to contend with. They discuss the strength of the human character at times of adversity and how this will see us through the challenges that society will face in the months and years ahead. They reflect on their own experiences and how this may shape our own responses to the immediate and the future.

The Coronavirus bill and false imprisonment

In our latest podcast we discuss the Coronavirus Bill, which no doubt will be on the statute book very soon, and the concept of false imprisonment.

False imprisonment and Coronavirus at first blush may seem to have little in common other than we all wish no doubt that we had not heard of either, but with the prospect of a “lockdown” bear with us.

There is a demand, if not a requirement, for our civil liberties to be curtailed so as to control the spread of the virus. We are being told to stay indoors and to keep our distance from our neighbours. So far these instructions have been polite requests to do as we are being asked. The implicit underlying message being that if we do not do as we are asked then the State will have to get tougher.

Government has to tread wearily because it can tell us what to do but does it have the legal ability to insist we do so?

The Coronavirus Bill contains provisions under clause 50 and schedule 21 to prohibit and restrict meetings and gatherings, and to close premises or restrict access, but that is as far as it goes.

Clause 49 and schedule 20 however, gives the power to remove and detain a person who is believed to be infected.

These provisions have to reflect the law which was recently analysed by the Supreme Court in R (on the application of Jalloh) v. Secretary of State for the Home Department [2020] UKSC 4.

The case is highly relevant because it can be argued that Parliament cannot simply tell people to lock themselves up. Government has to have very specific powers granted to it by Parliament to curtain a person’s liberty.

The case required the Supreme Court to consider the meaning of imprisonment at common law and whether this should be aligned with the concept of deprivation of liberty under the European Convention on Human Rights (“ECHR”).

The Claimant in Jalloh, who was apparently a Liberian national, had been released from immigration detention on bail. He was subsequently served a notice of restriction with conditions which included a curfew. Further he was warned that if he failed to observe the curfew he was liable to a fine or imprisonment.

It later transpired that the Home Secretary did not have the power to impose the curfew this way. The High Court ordered the curfew to be lifted and the Home Secretary accepted it was unlawful.

The claimant sought damages for unlawful imprisonment. In the High Court he was awarded £4000 (he had been subject to the curfew for 891 days). The Home Office argued that compensation was not payable because the curfew albeit unlawful did not amount to unlawful imprisonment, and that if it did it should be modified as a common law concept so as to be aligned with the more demanding concept of deprivation of liberty under article 5 ECHR.

The Supreme Court did not accept the Home Secretary’s arguments.

The essence of unlawful imprisonment is being made to stay in a particular place by another person. The methodology can be varied and include physical barriers, the placement of guards, the threats of force or legal action. The claimant was subject to a curfew. He had to stay indoors and was warned what would happen if he did not obey. This was simply detention or confinement.

As for Article 5 ECHR it was possible for there to be imprisonment at common law without a deprivation of liberty. The latter depends on a number of factors: type, duration and effects of confinement. To align would be a retrograde step because it would restrict the classic understanding of imprisonment at common law to something far more nuanced and inhibit the citizen’s right to not be unlawfully imprisoned by the State.

Getting back to the unique circumstances of Coronavirus, the Bill attempts to recognise that there may be particular circumstances where a citizen has not committed a crime but is potentially infected, and as such presents risk to others, and has to be detained. That is very different to telling the general public to stay indoors.

Voluntary compliance on the part of the public is one thing, but being ordered to stay indoors and failing to do so would lead to a sanction is another. Parliament has to be very clear in what powers it gives Government and it in turn has to be very clear in how they are exercised because the Jalloh case reminds us that prison bars are not necessary for there to be false imprisonment.

HJ Talks About Abuse: Damages for false imprisonment

When you think of false imprisonment you imagine being wrongly held in a prison, but the recent Supreme Court case of R (on the application of Jalloh) v. Secretary of State for the Home Department [2020] UKSC 4 demonstrates that the concept is far more nuanced.

The appeal was concerned about the law of damages for false imprisonment.  It required the Supreme Court to consider the meaning of imprisonment at common law and whether this should be aligned with the concept of deprivation of liberty under the European Covention on Human Rights (“ECHR”).

The Claimant who was apparently a Liberian national had been released from immigration detention on bail. He was subsequently served a notice of restriction with conditions  which contained restrictions that included a curfew. Further he was warned that if he failed to observe the curfew he was liable to a fine or imprisonment.

It later transpired that the Home Secretary did not have the power to impose the curfew this way. The High Court ordered the curfew to be lifted and the Home Secretary accepted it was unlawful.

The claimant sought damages for unlawful imprisonment. In the High Court he was awarded £4000 (he had been subject to the curfew for 891 days). The Home Office argued that compensation was not payable because the curfew albeit unlawful did not amount to unlawful imprisonment, and that if it did it should be modified as a common law Concept so as to be aligned with the more demanding concept of deprivation of liberty under article 5 ECHR.

The Supreme Court did not accept the Home Secretary’s arguments.

The essence of unlawful imprisonment is being made to stay in a particular place by another person. The methodology can be varied and include physical barriers, the placement of guards, the threats of force or legal action. The claimant was subject to a curfew. He had to stay indoors and was warned what would happen if he did not obey. This was simply detention or confinement.

As for Article 5 it was possible for there to be imprisonment at common law without a deprivation of liberty.  The latter depends on a number of factors: type, duration and effects of confinement. To align would be a retrograde step because it would restrict the classic understanding of imprisonment at common law to something far more nuanced, and inhibit the citizen’s right not be unlawfully imprisoned by the State.

HJ Talks About Abuse: Hugh James Abuse Conference 2020

The annual abuse conference run by Hugh James and the NSPCC took place on 13 February 2020 in our office in Two Central Square, Cardiff.

The abuse conference is an opportunity to bring together a whole range of service providers who assist survivors of sexual abuse so thoughts, expertise and opinions can be shared to make the experience for survivors better.

This year focussed on a range of issues, from the definition of “Positions of Trust” in the Sexual Offences Act 2003 to support services for survivors who have found themselves in trouble with the law, but one important issue which came starkly into focus were opportunities to stop child abuse before it had occurred.

Whilst this might seem an incalculably difficult task, insights provided by Professor Bisson into the impact of Adverse Childhood Experiences in childhood on an adult in later life demonstrated that focus towards healing those who have had these experiences could assist in curving trends in the future.

Sam Barker of Hugh James spoke about the issue of consent in civil proceedings for compensation arising out of childhood sexual abuse. Whilst this seemed a nonsense to many in the audience, it is an unfortunate reality that consent is more often being used in a case where an abuser has been convicted of a sexual offence, but a lack of consent is not an element of that offending.

In today’s podcast, Alan and Sam discuss these issues further and welcome any thoughts from listeners.

If you enjoyed listening to this episode of the HJ Talks About Abuse podcast, you can listen to our other episodes on your favourite streaming platforms with the buttons above.

All of our episodes are also available to listen to on our website here. To find out more about what Alan and Sam do, visit the abuse page.

HJ Talks About Abuse: IICSA – Child Protection in Religious Organisations and Settings

The Independent Inquiry into Child Sexual Abuse is commencing its investigation into Child Protection in Religious Organisations and Settings on 16 March 2020.

This is a wide ranging investigation into child protection practices in religious organisations which have more than a trivial presence in England and Wales.

The hearings will run for two weeks and will conduct an investigation into the adequacy of child protection practices in, for example, the Jehovah’s Witnesses, the Jewish orthodox community, Scientology and Paganism. 

Hugh James represents an advocacy group of current and former members of the Jehovah’s Witnesses called the EX-JW Advocates Opposing Crimes Against Children (the “Group”).  To explain, the Group:

1. Is made up of survivors of childhood sexual abuse within the Jehovah’s Witnesses UK, former elders of Jehovah’s Witnesses UK with deep knowledge of practices adopted by bodies of elders at congregations across the UK and former member activists who assist survivors across the UK;
2. Certain members of the Group maintain a website and Facebook group with resources and immediate help for those who have been affected by Jehovah’s Witnesses UK and access to the site administrator who can speak with the member or ex-member in confidence;
3. Advocates for change within Jehovah’s Witnesses UK in respect of, amongst other things, the 2017 safeguarding policy, internal practices and procedures following the disclosure of child sexual abuse within a congregation, support to survivors of child sexual abuse within Jehovah’s Witnesses UK and understanding of child sexual abuse not as a ‘sin’ but a crime; and
4. Raises awareness in respect of Jehovah's Witnesses UK reluctance to co-operate with secular authorities in investigations and prosecutions members who have committed an act of child sexual abuse and the failure to bring those allegations to the attention of the police at first instance.

The Group is focussed on highlighting to the Inquiry the cultural issues within the Jehovah’s Witnesses which inhibits reporting of allegations of child sexual abuse to the police and stifles proper safeguarding at an institutional level.  The primary point of concern is the recent policy shift within the Jehovah’s Witnesses of deflecting safeguarding responsibility onto parents within the religion rather than the institution itself. 

Whilst it is of course a parent’s responsibility to care for their children, it is bad practice on an institutional level to take an “arm’s length” approach to safeguarding by passing total responsibility to parents.  This is particularly the case in inward facing and isolationist religions like the Jehovah’s Witnesses which restrict a child’s interaction with the outside world.

Other cultural issues which inhibit proper safeguarding include shunning, the two witness rule, scriptural investigations, a view of society’s laws as “Caesar’s laws” and reputational concerns.  These issues are not all specific to the Jehovah’s Witnesses and practice like shunning and the two witness rule is practiced in other religions, like certain sects of Jewish orthodoxy.

Overall, the Group advocates for mandatory reporting along with external regulation and training.  In the course of the investigations conducted by the Inquiry it has become very apparent that religious institutions are almost incapable of properly self-regulating and appropriately reporting allegations of child sexual abuse or individuals who pose a risk of harm to children to authorities.  The Jehovah’s Witnesses as an organisation has been exposed in the respect in a recent High Court decision called Lancashire County Council v E & F & Ors [2020] EWHC 182. The “choice” to report must be taken away from these organisations.   

Another issue of great concern which again is not specific to the Jehovah’s Witnesses is the lack of external oversight and input in regard to safeguarding training and it is clearly the case that if bad practice is the basis of training, it will create a systemic issue which is difficult to correct.  All religious organisations in the UK should be legally required to meet mandatory minimum standards but for those with charitable status there should be sanctions for failing to do so. 

The Inquiry will hopefully be able to recommend meaningful change but it has taken on a monumental task over a short period of time.

Harvey Weinstein found guilty of rape

What has happened?

In all, at least 80 women had accused Harvey Weinstein of sexual misconduct stretching back decades, including actresses Gwyneth Paltrow and Uma Thurman. Accusations emerged in the media in October 2017 and Weinstein was charged in May 2018.

The allegations were at the centre of the #MeToo movement that prompted women to go public with misconduct allegations against powerful men.

On 24 February 2020, Weinstein was convicted in New York of a first-degree criminal sexual act and third-degree rape. A third-degree rape charge in New York is defined as "engaging in sexual intercourse with a person who is incapable of consent, or under age 17, or who has not given consent for a reason other than the inability to consent".

The sexual assault was against his former production assistant Mimi Haleyi in 2006, and the third-degree rape was against Jessica Mann, a former aspiring actress, in 2013. Weinstein was acquitted on three charges, including two counts of predatory sexual assault, which carried a potential life sentence and a count of first-degree rape of Jessica Mann.

What happens now?

On 11 March 2020 Weinstein will be sentenced and is facing at least 5 years in prison and up to 25 years over the guilty verdicts. Weinstein's lawyers have confirmed that they will be appealing the conviction. 

The following could be taken into account by the judge:

• No remorse or early guilty plea
• May be some consideration of his physical health issues

Will he succeed with any appeal? 

If as anticipated, Weinstein appeals, it could be in relation to what might be considered the controversial move by the prosecution to call evidence from “complainants” who were not complainants in the criminal proceedings: give a “dog a bad name”…?

The reaction

“The Silence Breakers” (the term used to refer to Weinstein’s accusers as a group) issued a statement written on behalf of 23 of Weinstein’s accusers: “It is disappointing that the outcome does not deliver the true, full justice… [but] Harvey Weinstein will not forever be known as a convicted serial predator". The case has also exposed “the difficulties women face coming forward to tell the truth about powerful abusers”.

The story is far from over

The following should be noted:

• Civil complaints are ongoing
• In December 2019 lawyers said they reached a tentative $25m/£19m deal with some accusers
• He is still to face charges in Los Angeles
• Further to an investigation into 8 allegations
• Charges filed in regards to two incidents in February 2013 – an anonymized female Italian actor on 18 February and a model named Lauren Young (who was a witness in the New York trial) on 19 February . The allegations Include rape, forcible oral copulation, sexual penetration by use of force and sexual battery by restraint, and all carrying a potential 28-year prison sentence.

Understanding trauma in the context of child sexual abuse

In this podcast we discuss the topic of understanding trauma in the context of child sexual abuse (CSA) with Associate Professor of Criminology at The University of New South Wales, Michael Salter.

What do we mean by trauma?

“A mental condition caused by severe shock, especially when the harmful effects last for a long time and cause post-trauma symptoms which put stress on the body”.

We need to understand what trauma means in relation to CSA and the impact it has on the victims (survivors).

Research shows that CSA impacts on a victim’s health across the life course so that harmful impacts may manifest through increased common childhood health conditions, as well as general poorer self-rated health. Such conditions are typically not life threatening (but can be life shortening for example by smoking or taking “drugs”) but their long-term impact on physical and social development can be considerable. Thus, childhood ill health as well as anti-social behaviour could impact school attendance and consequently opportunities for educational attainment and better economic prospects throughout life etc.

We also know that CSA can adversely affect relationships, with “trust” issues being common place. This in turn can affect self-worth, mental health and physical health too.

CSA is now understood as a non-specific risk factor for a range of negative outcomes including PTSD and complex trauma, substance misuse, relationship issues, ill-health and encounters with the criminal justice system.

Some children who have been sexually abused have a pre-existing vulnerability, for example, they had been removed from their parents because of neglect, and placed in care.

The trauma can be further influenced by the sense of betrayal, the sense of being disbelieved and/or belittled and the lack of accountability. Further, if there is a lack of support following disclosure of the CSA, this too can compound the trauma that has been sustained or developed.

It is noteworthy that trauma was a key theme for the Royal Commission into Institutional Responses to Child Sexual Abuse. It recognised trauma as a major impact of CSA. We discuss with Dr Salter how this reflected in the Royal Commission’s work, for example, in “bearing witness” to what it was hearing from survivors. This was a feature interestingly of the United Kingdom Child Sex Abuse People's Tribunal (UKCSAPT). It is understood from trauma research that when victims are listened to and not just heard and their experiences considered, there can be a lessening of their symptoms.

We also discuss the understanding and promotion of a trauma informed culture which we believe engenders a holistic approach to survivor needs and issues.

Sexual Violence in GBQ Relationships

In this podcast we are joined by Associate Professor of Criminology at The University of New South Wales, Michael Salter, to discuss sexual violence in GBQ relationships.

In recent podcasts we have discussed the issue of consent, and decided to revisit this because we thought it would be interesting and useful to explore this in the context of GBQ relationships.

Research has highlighted that consent, or rather the lack of it, can lie behind intimate partner violence and sexual assault.

Those who participated in the research, openly in many cases, revealed that in relationships they had been subjected to unwanted or non-consensual sexual acts on the part of their partner, for example, against a backdrop of substance or alcohol  misuse. Sometimes violence is used or threatened and examples were also given of blackmail. Coercion through a threat of “outing”, or the use of controlling behaviour was also identified.

Some of those who took part in the research thought that some of these behaviours might be acceptable in some situations, which begs concerning questions in relation to insight and informed consent.

The research revealed that some who had experienced sexual violence considered that was a degree of normality, which might possibly arise from the understanding that for many, violence and coercion was common. Conversely there was a widespread understanding that violence was unacceptable and illegal.

The research suggests that there needs to be a far more open discussion about respectful relationships and consent. This of course applies to society as whole but in the GBQ context there is clearly an openness to explore and understand very personal issues and needs, which in fact go far beyond the individual.

Listeners and readers in Australia may obtain further information concerning access to advice and support at the following: www.sayitoutloud.org.au/

False memory syndrome – Memory issues in Child Sexual Abuse

In this podcast we are joined by Associate Professor of Criminology at The University of New South Wales, Michael Salter, to discuss the concept of false memory syndrome. In the field of Child Sexual Abuse (CSA) it has waxed and waned and is now possibly completely discredited.

In CSA litigation or prosecutions it is sometimes alleged that the victim (survivor) cannot possibly remember events from their childhood, or what they are alleging is just fanciful and possibly no more than a figment of their imagination. To put it in simple terms, the victim is told that their memory is at fault.

We all know from our own experiences how “good” our memory is. Sometimes we can remember certain events and happenings but not others, for example, forgetting where we put the car keys. But when it comes to CSA, can victims really get it wrong with their recall of something so serious?

Research suggests that CSA survivors are usually good historians when it comes to their abusive experiences. The Royal Commission into Institutional Responses to Child Sexual Abuse commissioned research on memory, and this identified a number of misconceptions that people hold about how memory works, and what memories are reliable. It reported that misconceptions about memory include that memory will be complete, unchanging and “photographic”.

There are also misconceptions about the accuracy of people’s memory. Wrong assumptions may be made about a connection between accuracy of a memory and consistency of accounts given by a witness, where inconsistencies or gaps may be assumed to demonstrate inaccuracy in the witness’s accounts as a whole.

The research finds there were misconceptions about the display of emotion while giving evidence being an indicator of accuracy of the memory retrieved.

The research also found that traumatic events resulting in greater durability of memory is another misconception, as is expectations about children’s ability to recall temporal details, such as when an event occurred or how often it occurred.

A witness recalling additional information over time as they give further accounts of the event may be mistakenly considered with suspicion or as an indication of unreliability.

When it came to the concept of false memory the research found interestingly that in certain cases, adolescents and adults may in fact be more suggestible than most children.

The research detailed the history of psychological research on suggestibility and false memories, and the ‘memory wars’ between treating clinicians and experimental psychologists. These issues were set in perspective by findings that susceptibility to post-event misinformation is limited to minor details, not core memories. Moreover, only a very small percentage of people recover memories of child sexual abuse in therapy. Contemporary research findings demonstrate that concerns about the prevalence of false memories of child sexual abuse appear to have been exaggerated.

So where did the concept of false memory originate?

We discuss the possible answers with Dr Salter, and in particular the natural revulsion on the part of most people when it comes to the notion that children can be sexually abused. Further, that the root possibly goes back to societal disbelief of women’s allegations of sexual violence, and that this has generated scepticism and the silencing of victims.

The 21^st century reality is that through successful and high profile prosecutions of child sex offenders and the work of inquiries such as that in Jersey and the Royal Commission societal awareness is now very different to say 20 years ago. The narrative has changed and this has put pay to the concept of false memory.

Cyprus Rape Case - Issues of Consent

A British teenager convicted of falsely accusing 12 Israelis of gang-rape was permitted to leave Cyprus after having received a suspended sentence.

The 19-year-old student had accused a number of Israeli football players of gang-rape.  Following her retraction, the alleged abusers were permitted to fly home.  The investigation into the claims was dropped, with the teenager being forced to spend a month in prison before being granted bail on the condition that she surrendered her passport.  The circumstances of the case include video footage having been taken during the alleged rape.

The case highlights the difficulties which bedevil evidential issues in rape cases and also, highlights the issue of consent.  The Israelis claimed this was consensual and as such, a significant conflict in the evidence arose.

There is a large contingent of supporters of the victim who say she was let down by the Cypriot justice system.  It is not for us to say who is right and who is wrong.

What is certain is that this case demonstrates how evidential issues and a weight of opposing evidence might well dissuade a victim from reporting the abuse.  The justice system demands the offence be proved “beyond reasonable doubt”, which is a high bar.  When the alleged crime occurred behind closed doors, which is commonly the case, it is very difficult to obtain a conviction.  The statistics in the UK as to how many rape cases are dropped before trial highlights this issue.

This case also raises the issue of consent.  It is right to note that the victim says she did not consent, whilst those accused say it was consensual.  It is also right to note that the circumstances, in our view, make this defence of consent highly questionable.  Consent is a very nuanced concept, a person may consent to some acts and not others.  Notably it is right to ask – did the victim consent to the video being taken?  If this was done without her knowledge, this alone is a valid complaint. 

In other podcasts we have noted that if someone consents to vaginal, anal or oral penetration only if they agree by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time the activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. This case brings that issue starkly into focus.

Today we will discuss this case, and these concepts generally.