Serious Stuff

Listening to Radio 4 this morning and hearing Keir Starmer, the current DPP, I thought how unrealistic when he said that the behaviour of  those complaining of sexual abuse should not be taken into account when deciding to prosecute.

I was defending a sixteen year old on a charge of raping a fourteen year old. She said he had come to her home, uninvited when her mother was out, and had dragged her into her bedroom and raped her. His case was that she had invited him to visit her and had taken him to her bedroom where they had sexual intercourse to which she had consented.

English: Engraving of Gilbert and Sullivan's T...

English: Engraving of Gilbert and Sullivan’s Trial by Jury. Français : Gravure basée sur Trial by Jury de Gilbert et Sullivan. (Photo credit: Wikipedia)

Now obviously no witnesses to the event, so how is a jury to decide who is telling the truth about the incident?

Let’s call them Joe and Lindy. They had met at their local youth club. Joe was a good-looking boy, doing well at school and hoping to go onto college. Lindy instantly took a fancy to him and followed him around all the time. The youth worker at the club, confirmed that she always made a bee-line for him when she came to the club, and he thought Joe found her a bit of a nuisance, but was too polite to tell her to go away.

After a few weeks she invited him home to the flat she shared with her mother. When Joe got there, Lindy’s mother had cooked dinner and the table was set for two. Lindy and Joe were left alone to enjoy a candle-lit supper. None of this was in the statements either Lindy or her mother had made to the police, but they admitted it was true when I cross-examined them.  Joe said she had given him a note at the youth club inviting him to visit her on the evening in question. Again the youth worker confirmed Lindy had given him an envelope at the club. Something she denied.

A few nights after the alleged rape, Joe refused to talk to Lindy when another young woman who he liked came to the youth club. It was then that Lindy told her mother that he had raped her and her mother went to the police.

If you were on the jury, wouldn’t you like to have known all that? Wouldn’t you have asked yourself why Lindy kept all the background secret? Was it because she consented to the sexual intercourse? In order to prove a case the prosecution have to make the jury sure of the defendant’s guilt. The jury didn’t take long to acquit Joe and I think rightly on the evidence.

Of course I had to call Lindy a liar as part of the defence case is to put the defendant’s account to the witness. There is no way of doing it without saying she was lying on the crucial issue of consent. As an aside, rape is not having sexual intercourse when you don’t want to – it’s without consent and there is a difference. We all do things we don’t want to but still consent to. When I said that to a jury I found most of the women nodding in agreement.

And what about taking responsibility for you own actions. Lindy really shouldn’t have invited Joe to her flat when her mother was not there. If a juvenile takes part in a criminal activity they are not excused because they are too young (unless they are under 10) they are meant to understand they were doing something wrong. Similarly drunkenness is no excuse for committing a criminal offence that you would not commit if you were sober. The law expects you to be responsible for your actions. If you left your handbag on a bus and it was stolen, you would say to yourself, I’ve been  very silly, and most people would agree. Are we encouraging young women to be reckless, by telling them it’s not their  fault?’ I don’t know, but my experience with these case leaves me feeling very uneasy that we are following some feminist agenda on the lines that ‘all men are rapist.’

It’s also worth saying that although the legal age of consent to sexual intercourse is sixteen, that is a decision made by Parliament and is often broken by young girls. Of course the law is there to protect them, but it can’t stop puberty happening much younger and both boys and girls becoming sexual aware.

The current debate appears to me to be very one-sided, and sometimes I feel very sorry for young men, whose own sexual experience and behaviour is often uncertain and where they risk seven or eight years imprisonment if they get the signals wrong.

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About scribblingadvocate

Born in Lancashire, Law degree from Sheffield University and MA in Creative Writing from Exeter. A barrister for twenty five years, who appeared in the Crown Courts in and around London. When I retired we moved to live in Devon, first on Dartmoor, more recently overlooking the Exe Estuary. After twenty years I still feel an exile from London. Married, no children but own an affable Springer Spaniel. I love reading, walking and travel. I completed an MA in Creative Writing at Exeter University and have written three books, Crucial Evidence, Reluctant Consent and Legal Privilege, all set in London. You can email me

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