HJ Talks About Abuse

Taxi Drivers and Liability for Sexual Assaults

The vast majority of us have hailed a taxi to get from “A to B”. It is an aspect of modern life with which we are familiar and never really give much thought to perhaps, until now. There have been a number of very high profile media reports concerning sexual assaults in the back of cabs.

There is of course the notorious “black cab” case of John Worboys who drugged and raped his passengers and is now serving a life sentence for his numerous crimes.

We now have Uber which revolutionised “hailing a cab”, revealing that in the USA it received almost 6,000 reports of sexual assault in 2017 and 2018.

While the number of cases rose in 2018, the rate of incidents dropped by 16%, as the number of journeys was higher.

Passengers, as opposed to drivers, accounted for nearly half of those accused of sexual assault.

The data was published in a report which Uber said showed its commitment to "improving safety for Uber and the entire industry".

Uber is facing growing scrutiny around the world, and recently lost its licence to operate in London.

The report showed 5,981 sexual assault incidents were reported out of the 2.3bn US trips over the two-year period.

Uber claimed 99.9% of the total journeys were concluded without safety issues.

The report makes fascinating reading, but for our podcast we want to explore the question of liability when in those cases things go terribly wrong and a passenger is sexually assaulted.

Many “cabbies” are self-employed, but many are not and work for an employer, or are “contracted”.

If a driver sexually assaults a passenger they are of course both criminally liable but also liable to pay compensation for having committed the tort of assault.

If the driver is working for an employer then this may be a case of vicarious liability.

The doctrine of vicarious liability applies to make employers responsible for the harm caused by employees committed during the course of their employment, provided there is a close connection between their job and the wrong complained of. For example a school or education authority is likely to be vicariously liable for a sexual assault committed by a teacher on their pupil.

If an employed “cabbie” sexually assaulted a passenger the employer may be vicariously liable. Each and every case is unique and the facts in each are determinative of liability, but as a general principle the argument would be that it was the driver’s task to take the passenger to their destination and to do so safely.

If the driver was not employed in a general sense but was “freelance” or contracted in some way there could be still be a vicarious liability situation and arguably so if the contractor was in effect giving instructions and determining how they went about their business.

Similarly there may be liability if the driver was the agent. A principal is normally liable for all acts of an agent within the agent’s authority, whether responsibility arises in contract or in tort. Authority means the agent’s actual, apparent (ostensible) or usual (customary) authority. This can be contentious because the argument would be that the driver was not authorised to assault his passengers, but then a teacher is not permitted to assault the pupils, and so the court examines the nature of the relationship between employer and employee to see if there is that close connection. This is back to the vicarious liability test.

Issues of Consent in Sexual Abuse Cases

The issue of consent can be a live issue in sexual abuse cases.

It becomes an issue when the defendant or alleged abuser, if you prefer, admits to having sexual activity with his/her victim, or as they say willing partner, and that what took place was consensual.

In the recent case of Reynhard Sinaga who is thought to be the UK's most prolific rapist ever, it became clear that for several years, until he was caught in 2017, he preyed on young men who had been enjoying a night out.

Reynhard Sinaga, a 36-year-old postgraduate student, had made his home in Manchester for more than seven years. He has been sentenced to life imprisonment following a trial at Manchester Crown Court.

Sinaga, originally from Indonesia, was a perpetual student. He already had four degrees and was studying for a doctorate. By night, however, he was a serial sex offender.

He has been found guilty of drugging, raping and sexually assaulting 48 men, but police believe there are among at least 190 victims.  They are able to be so precise about these numbers because Sinaga filmed his attacks and collected what detectives call "trophies" - items or information stolen from his victims.

Sinaga typically approached his victims in the street. His targets were men mostly in their late teens or early 20s who had been out drinking, often in the nearby nightclubs. Some were on their way home; others had become separated from friends.

Many were too drunk to remember their conversation with Sinaga, but for those who did there was no indication of a sexual motive. Sinaga used various pretexts to entice each to his flat.

Some victims could recall being provided with a drink and then blacking out having been drugged. The judge said she was sure that Sinaga had used a form of date rape drug such as GHB (gammahydroxybutyrate). GHB is a class C drug and anyone found in possession of it can be imprisoned for up to two years.

Sinaga drugged his victims before assaulting them while they were unconscious. When the victims woke up many of them had no memory of what had happened.

He denied the charges, and claimed all the sexual activity was consensual and that each man had agreed to being filmed while pretending to be asleep - a defence described by the judge as "ludicrous".

Followers of the television soap Coronation Street will be familiar with the current storyline of David Platt who was raped by Josh Tucker. Viewers are watching Josh’s trial develop with the defence based on consent.

What is consent?

Consent is defined by section 74 Sexual Offences Act 2003.

Someone consents to vaginal, anal or oral penetration only if s/he agrees 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 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. Recent high profile cases concerning football and rugby players have highlighted how difficult it can be to prove that the suspect(s) did not have a reasonable belief that the complainant was consenting.

The issue of consent can remain live even if in the wake of a criminal conviction the complainant seeks compensation either from his/her abuser or those responsible for him/her for example an employer.

The defence that is argued is that the criminal components of the crime had been committed, for example by a teacher having sexual activity with a student over the age of 16 (the criminal age of consent) but he/she was old enough or mature enough to give full consent. Similarly, in the case of a child under 16 who was sexually assaulted, the defence might be run that even though the crime was committed there was consent. This may strike many as unpalatable but the realities of these cases are that motives and facts have to be examined with great care. In the Sinaga case his “defence” was seen for what it was and dismissed. There was no consent – the victims had been drugged and were unconscious. There are other cases though where it can be very difficult to unravel what was going on in the minds of those involved.

Can you claim compensation after your abuser has died?

This is a frequently asked question and the answer is always fact specific, and so we will outline some scenarios that help define the general principles behind the answer.

Sexual abuse is not just a crime but also a civil wrong that enables the victim or survivor to bring a claim for compensation against the abuser.

The law is that if you assault someone then you are liable to pay them compensation also known as damages. The victim can take legal proceedings in the civil courts against the perpetrator and if they win the case the judge will order that compensation be paid.

To state the obvious, for this to happen, the abuser has to be alive. You cannot take a dead person to court. You cannot sue a dead person.

However, if the abuser has died relatively recently then the victim could take the abuser’s estate to court. The claim would be brought against the estate which means the personal representatives. If, however, the estate has been wound-up then it would be too late. Again to state the obvious if the assets of the estate have been distributed then it’s too late. Therefore a victim needs to act speedily in the event of the abuser dying.

Bear in mind though the estate may not accept the claim. If the limitation period has expired the estate has a potential defence to any claim. The Limitation Act 1980 provides that a claim for compensation is meant to be brought before a court within 3 years of the sexual abuse having happened. That period in the case of a child victim would have commenced on their eighteenth birthday. A court has a discretion to waive the limitation bar, provided it's fair to do so and the reason for the delay in coming forward is reasonable.

The answer to the question will depend very much on the facts and circumstances, but survivors should not delay in pursuing a claim. Every day that passes carries the risk that it will be too late.

Some survivors may look to those legally responsible for the abuser, for example an employer. If the abuser has died the former employer again may rely on the limitation defence. The argument will be that a fair trial is no longer possible given that the abuser or alleged abuser is dead. If, however, there is evidence that proves the sexual abuse regardless and/or there had been successful criminal proceedings then arguably the fact that the abuser (or alleged abuser) is dead is not so significant.

To conclude the answer to the question is very fact sensitive. There are considerable obstacles to pursuing a successful case if the abuser is dead but much will depend on the circumstances.

Sexual abuse in the medical profession

In this episode of the HJ Talks About Abuse podcast, Alan Collins and Sam Barker discuss the topic of abuse in the medical profession.

This is highly topical at the moment with the case of GP Manish Shah being in the news recently. 

The London based GP sexually assaulted 23 female patients by performing unnecessary examinations for his own sexual gratification under the guise of cancer screening.

One of the main issues in this case is the breach of trust between doctor and patient. When you visit a medical professional, they have spent years obtaining specialist knowledge to help them provide the right diagnosis and treatment. The patient must place a profound amount of trust that the professional will have their best interests in mind. 

Alan and Sam look into the Manish Shah case in more detail and discuss the issues that are brought to light by similar cases.

For more information about abuse in the medical profession or to suggest a topic for a future episode, email aboutabuse@hjtalks.co.uk

Online Sexual Abuse: The Case of Mark Gable

We have covered in previous podcasts the prevalence of online sexual abuse. We make no apologies for returning to this unpleasant subject which has been in the news again.

A paedophile couple who filmed themselves sexually abusing children, including a baby, have been jailed for a total of 21 years.

Mark Gable, 33, was arrested after police officers found a video of him sexually assaulting a baby during a search of his home.

A number of other images and videos were discovered which also showed Gable, sexually assaulting children.

Through their investigations, the police discovered that Gable’s girlfriend, Jessica Fry, had filmed the initial video as well as a number of the other images and videos.

There is tragically a trade in the sharing and publication of images and videos showing children being abused. No doubt money as well as the sexual interest in children are motivators.

Understandably all right minded people are appalled by such behaviour, but there is a general lack of awareness as to the law and how it can easily be broken.

BBC Radio 4 recently broadcast “The Boy in the Video”, produced and presented by Lucy Proctor.

The story starts with an everyday event - a WhatsApp message to a group set up by mums at the school gates to discuss missing jumpers and school trips.

But this message contains a video of a little boy being sexually abused. And one of the group members happens to be a BBC radio producer.

So begins an investigation into the dark world of child sexual exploitation as Lucy tries to find out what happened to the boy. Has he been rescued? Is his abuser in jail?

Along the way Lucy meets the police trying to combat the online proliferation of images and videos of children being abused - millions are in circulation, shared on social media platforms as if they are funny cat memes. She asks what we should do about the 450 men arrested every month for viewing and sharing this material? At the moment, end-to-end encryption means WhatsApp is a safe haven for offenders - but are the tech firms doing enough?

In the programme Alan Collins – partner at Hugh James explains that there is a lack of understanding, and people can easily not appreciate that “private” images may not remain that way.

It should also be stressed that “online” abuse is not victim free. We have suggested that the law needs to be beefed-up to reflect the reality that someone at home viewing a child being abused is just as guilty as the person in the room committing the physical aspect of the abuse.

How paedophiles manipulate those around them to sexually abuse

In a recent podcast we discussed the Jeffrey Epstein case and in particular, how in our experience of representing survivors we find time and time again, how child sex abusers groomed not just their victims but those around them.

It has been suggested in the media recently that Prince Andrew was used by Epstein as “bait”. We have no knowledge either way as to whether this is right or wrong, but it’s interesting that the term was used, because it dovetails with our experience.

Survivors and those close to the abuser frequently complain of being manipulated. Grooming is common currency in Child Sexual Abuse cases with the abuser constructing what can only be described as a “relationship” in order to create the opportunity to sexually abuse the victim. The trust of those in the vicinity is also sought to gain access, and to inhibit the victim from complaining.

The manipulation does not stop when the sexual abuse ends. Survivors often recount how it continues to prevent them reporting. The abuser is often in a position of power or has some kind of control over their victim for example teacher and pupil, priest and worshipper etc.

The manipulation can continue post reporting of the sexual abuse to the authorities. The abuser may deny the allegations, and make counter-allegations designed to discredit the survivor. The effect of this cannot be under-estimated.

It is interesting that the Harvey Weinstein case, and the reports that there may be an out-of-court settlement, has given rise to claims that his alleged victims are being manipulated. This gives an insight as to the powerful dynamics at play when there are legal proceedings underway and also, when there is the prospect of a settlement. For many a survivor, bringing a civil claim for compensation is empowering and cathartic, but we need to alive to the fact that for some when a defendant makes an offer to settle it can be seen as another attempt to control. Survivors understandably can be very sensitive to any suggestion or attempt to control them. For our part in representing them we make the point that they are in control of their situation and that nobody is going to order them to do anything against their will.

It is absolutely vital in our experience for survivors to be represented by experienced and specialist lawyers when bringing a civil claim against their abuser or those responsible for the sexual abuse suffered.

Do lawyers push child sexual abuse survivors into making compensation claims?

The answer as far as we are concerned is No!

The reason why this question features in our latest podcast is because it was said at the recent IICSA hearing into accountability and reparation.

IICSA was and is looking further into redress for child sexual abuse (CSA) survivors.

Evidence has been given that suggests the existing justice systems are not working effectively for survivors. Many are unable to claim compensation, and where it cannot be awarded, often is not.

There are powerful arguments to say that much needs to change, but it is not clear how and whether the lot of survivors can be improved.

The civil justice system has come under scrutiny and that will be the subject of a further podcast, but for the moment let’s look at what happens when a survivor approaches us for the first time.

We try to provide a holistic approach in the sense that we point out that the survivor is in charge of the discussion, and no one is ever going to make them do anything that they do not want to do. We recognise that survivors in other settings, perhaps, feel compelled or obliged to do as they asked. We try to engineer a sense that they feel no compulsion to do anything, and to do nothing is fine.

We consider it vital to allow the survivor to tell us whatever they feel necessary. Yes we may ask questions to clarify or to understand what we might have heard.

If asked we can advise as to the legal options that might be available. We might signpost the survivor to the police, or elsewhere for services that they might need.

This is the opposite of telling survivors what to do. It is not our place to tell them. It is our place to advise and inform, and to represent if that is what they want.

We have to be frank when advising. If legal action is appropriate we have to advise that and explain what is involved. If legal action is not possible we have to explain that too. We have to do this so that survivors can make informed decisions and it’s about empowering and not telling them what to do. That is an important and fundamental difference.

It is clear from the IICSA hearings that there is a major information deficit for survivors who by and large are not being informed of their civil rights by those who are in a position to do so. Survivors are too often dependent on those who ought to know but do not, and that just exacerbates the problem. This is a cause that we are trying to pursue with parliamentarians who we consider have a particular responsibility to make sure that the laws that have been passed to assist with redress are observed and enforced.

Jeffrey Epstein and Prince Andrew - Relationships

The recent BBC interview with Prince Andrew about his relationship with US financier and convicted sex offender Jeffrey Epstein attracted to put it neutrally, some controversy.

The interview was unprecedented and the prince explained his “friendship” with Epstein which has come under considerable scrutiny since the American killed himself in August while awaiting trial on sex trafficking charges.

Prince Andrew said it was wrong of him to visit and stay at Epstein's house in 2010 after the financier's conviction but that he did not regret their entire friendship. He also categorically denied any allegations of wrong doing on his part.

In this podcast we are not going to comment on the allegations or pass judgement but what we are going to do instead is talk about relationships, and that is those that are shared with sex offenders.

Before doing so we will recap a little on Epstein to provide context.

Allegations against Jeffrey Epstein started surfacing in 2005 when the parents of a 14-year-old girl told police in Florida that Epstein had molested their daughter at his Palm Beach home. He was accused of paying girls under the age of 18 to perform sex acts at his Manhattan and Florida mansions between 2002 and 2005.

It transpired that a controversial secret plea deal in 2008 saw him plead guilty to a lesser charge of soliciting a minor for prostitution. He received an 18-month prison sentence and was released on probation after 13 months.

In July 2019 he was charged in New York with further allegations of sex trafficking and conspiracy and was due to face trial next year. He pleaded not guilty to all the charges but was facing up to 45 years in prison if convicted.

In his interview Prince Andrew explained his friendship with Epstein and how and why it continued post-conviction and this has led us to choose to explore the issue of relationships with sex offenders.

Most victims of sexual abuse know their abuser. It’s an uncomfortable fact of life that sexual abuse frequently occurs within the familiarity of a relationship no matter how damaged that might be: the father who sexually abuses his daughter, the uncle who abuses his nephew and so on.

Relationships provide a misplaced sense of normality. Survivors will say that they thought the abuse was “normal” because they knew no different. There may have been grooming too on the part of the abuser to manipulate the relationship.

The abuser exerts considerable power not just over their victim(s) but those around them who can also be groomed. We have seen many a case where the survivor has explained that family members turned a blind-eye to what was happening, or were themselves in the thrall of the abuser. There has been many a case where the abuser was considered to be a model citizen – the “pillar of the community” but this was just a sophisticated disguise that took in those close to him/her, enabling them to abuse. There have been many high profile cases of late where the abusers were committing child sexual abuse in plain sight but those around him allowed this to happen by closing not just their eyes so to speak but their minds too.

In summary we can learn what we want from the Prince Andrew interview but we suggest that it gives pause for thought, because it provides an opportunity to understand how child sex offenders operate, and how in particular they use innocent people (the wise as well as the unwise) to achieve their perverted desires.

HJ Talks About Abuse: Safeguarding in the Roman Catholic Church

The IICSA Roman Catholic Church investigation has recently concluded. IICSA was examining safeguarding in the Roman Catholic Church and the interwoven issue of mandatory reporting.

The last day of the hearing (8^th November 2019) was concerned with the hearing of submissions by the lawyers representing the various parties. I was concerned to make the point that there was a moral and legal obligation on the Roman Catholic Church to accept what needed to be done to ensure that there was adequate safeguarding so that children and young people would be safe.

I quote in part the submission I made:

Over the course of the last few days, we have heard much about cardinals, bishops, dioceses, conferences, commissions, priests, and I have to say, or I have to confess, that I do not pretend, even now, to fully understand how the Roman Catholic Church, in these many guises, actually functions, but it is abundantly clear that, when it comes to safeguarding, the levers of power are operated by a very small number of people. Maybe that helps to explain why the Roman Catholic Church has failed when it's come to safeguarding and continues to fail when it comes to safeguarding. Those failures arise from a failure of leadership which is the fruit of a dysfunctional culture.

It is patently apparent that the Roman Catholic Church in this country is incapable of fulfilling its safeguarding obligations. Those safeguarding obligations can only be met when the culture is right and when there is the right leadership.

It was very telling yesterday, I thought, towards the end of Cardinal Nichols' evidence, when he was asked about mandatory reporting and the seal of confession.

He said, and I quote:

"The history of the Catholic Church has a number of people who have been put to death in defence of the seal of confession. It might come to that."

He went on, but for my purposes, we will leave it at that.

That patently demonstrates that the Roman Catholic Church has hitched its star to a wagon where the primacy of the Roman Catholic Church and the interests of its priests are paramount at the expense of all else, and in this context, the interests of children, young people and survivors.

I ask myself, what is leadership in the Roman Catholic Church? And I would like to repeat a quote, give a quote, from Cardinal Newman, who converted from the Anglican Church to the Roman Catholic Church in the mid 19th century, and he was appointed as a cardinal in 1879. He said this:

"Among the obligations of a cardinal, I am pledged never to let my high dignity suffer in the eyes of men by fault of mine, never to forget what I have been made and whom I represent, and if there is a man who more requires the support of others in satisfying the duties for which he was not born and in making himself more than himself, surely it is I."

That speaks of humility. It speaks of humility to me. That is my understanding.

The leadership of the Roman Catholic Church needs to express humility because there can be no other way. If the Roman Catholic Church is to genuinely embrace safeguarding, given all the opportunities it has had so far -- with Nolan[i] and Cumberlege[ii] -- it has got to find a new way, and it is quite clear, I would submit, that it's incapable of doing it by itself.

And so it is inevitable that there is going to have to be statutory intervention. A regulator or a commissioner is going to have to be appointed by parliament to ensure that the Roman Catholic Church meets the most minimum standards of when it comes to safeguarding.

How those various orders and dioceses and various bodies come to terms with that will be of their choosing, but if they are to have a future, a future that enables them to work with children and to have a future, then they are going to have to embrace those minimum standards, and maybe, from what you have heard, you may be of the opinion that maybe there is a chance there, but that chance will never flourish unless the Roman Catholic Church conforms to what is expected by our society in the 21st century. There can be no other way.

It is no good for a cardinal to say, "If we don't like it, we will reject it". That is not acceptable. It is not acceptable in the civilised world in the 21st century.

The issue is not what is said in confession. The seal of confession is not a talisman. Mandatory reporting, in itself, is no panacea, but it's an expedient part, an important part, an integral part, of what safeguarding is all about.

It is essential that the Roman Catholic Church comes to accept that. It cannot, as we heard earlier on, simply "pick and mix". It's not going to work.

What is going to be required, in my submission, if there is to be statutory regulation, is some minimum standards, and we will expand on this in the written submission. But getting back to culture and leadership, one of those minimum standards should be that child safety is embedded in institutional leadership, governance and culture, and I will repeat that because I say this goes to the heart of what you are looking at: child safety is embedded in institutional leadership, governance and culture.

Such standards, or something very similar, would provide a benchmark by which the Roman Catholic Church can measure itself. It also provides a benchmark for a regulator or commissioner to judge or to measure the Roman Catholic Church by.

That must surely be the way to go[iii].

If the Roman Catholic Church chooses not to, then it has to live with the consequences. I am sure you are not going to simply produce a retread of Nolan and Cumberlege, because it is patently apparent, as I have said, in all that you have heard, from the evidence submitted to you, that mandatory regulation with mandatory reporting is going to be necessary

I would like to close on this note, to pick up on what the cardinal said to you yesterday, and it was telling when he talked about the history of the church, but very revealing. Perhaps it was unfortunate for him to have said it in the context of this inquiry, because it reminded me of the German theologian Dietrich Bonhoeffer, who was executed in Flossenburg concentration camp in 1945 for standing up against tyranny, oppression and wrong. He went to his death because of his faith and because of what he thought he was fighting for and for what he thought he was going to his death for. He said this:

"The ultimate test of a moral society is the kind of world that it leaves to its children."

It is inevitable in my opinion that mandatory reporting will be introduced and it is only a question of when. It is impossible to see how there can be an exception for catholic priests who may hear about CSA in confession. The Roman Catholic Church will have to find a way to move on from its entrenched position in relation to the seal of confession. 

 

[i] http://bitly.ws/6NFs

[ii] http://bitly.ws/6NFx

[iii] The Tablet www.thetablet.co.uk 14.11.19 accepts that priests are going to have comply with the law or face prison

HJ Talks About Abuse: Empathy

Our latest HJ Talks About Abuse podcast is on the topic of 'empathy'.

We have chosen this as a subject because we were asked by one of our listeners to explain how we manage our emotions when dealing with Child Sexual Abuse cases.

The question is apt because empathy or perhaps the lack of it was explored at the recent IICSA hearing in to the Roman Catholic Church.

Baroness Hollins when she gave evidence to IICSA said, in relation to church leaders in the Roman Catholic Church:

"I think my perspective is that people understand the need for procedures and policies, but at a cognitive level. There is a sort of cognitive empathy, but not an emotional empathy. It's the failure to actually understand at a deeper level what the...why this really matters. I believe that we can teach empathy.

"I believe empathy can be taught. But if it hasn't been taught, and if...and not everybody develops empathy naturally. If people have grown up in a particularly empathetic family, maybe they will have more emotional connectivity and more emotional understanding. But my sense is that some people didn't get it at an emotional level, and that doesn't mean they didn't get it at a legalistic perspective."

As lawyers we have to be professional and strive to the highest of standards, but we are human! We can only be taught so much, and we have to find our own way in developing the skills we need to relate to people, and not just clients. We can watch and learn and see how others deal with unfamiliar situations and conversations.

Turing to Child Sexual Abuse it is needless to say not an easy subject to discuss, let alone raise in conversation, but through experience we have hopefully learnt enough to do so.

We have to remain emotionally detached. That might sound cold but we have to be in order to be objective. Clients such as Child Sexual Abuse survivors come to us not for sympathy, but for advice and representation. We cannot deliver if we lack objectivity and so we have to remain emotionally uninvolved, but we can and should have empathy.

Empathy is not sympathy. Empathy is the ability to understand and share the feelings of another or to put it another way, standing in the shoes of another, whereas sympathy is feeling sorrow or pity. The practical difference as practitioners is to try and see matters from the client’s perspective as opposed to saying “I understand what you are going through” which unless you have gone through their experience it is impossible.

To provide objective advice and representation we have to be conscious of that distinction.

Can empathy be taught? On the basis of experience and training then yes, and with it that ability not to get caught up emotionally in the clients’ cases.

Of equal importance is to recognise it is a privilege to represent survivors and to listen to their accounts which very often have not been shared before. Likewise we have the unique opportunity of witnessing how a survivor very often has been able to overcome the adversities of life inflicted upon them as result of the abuse, and that in a way can be humbling. This in its own way gives us a sense of perspective and assists in helping us to remain objective.

As for empathy in the Roman Catholic Church leadership we will discuss that some more in a future podcast.