We Believe – doing violence to due process

Note : I’ve used “r*pe” throughout this post to stop it being flagged as rated 18. I’m not being oversensitive, but use of the full word without asterisk can cause things to be blocked.


This blog post has been rumbling around inside me for some time, waiting for me to find time to write it. It has been giving me indigestion. And it won’t go away. This last weekend’s frenzied and ill informed condemnation of the Ched Evans retrial verdict has galvanised me into action. Nobody seems able to talk about it without accusatory language.

I am really concerned about the conversations we are having (and not having) in public about domestic abuse and about violence towards intimate partners. We are talking about it all the time, but I don’t think we are doing very well and I don’t think the way we are talking about it is advancing the cause of condemning such violence and of making people safer. I think the debate is polarising and unhealthy, and I think it is diminishing the complexity of the issue. It is promoting disengagement and rejection by some groups of the fundamentally crucial and righteous message that violence towards those we love or have loved is unacceptable, and is harmful to those children who hear or see it. Our public debate is as dysfunctional and toxic as the abusive individual relationships we are talking about, and the intractable battle to control and dominate the narrative is sadly familiar to those working in the family courts. We see it played out in private and in individual cases, but it happens on the macro level too – and the one drives the other.

The motif that sums this up for me is the hashtag #webelieve (or #ibelieve or #ibelievewomen). Because ultimately, what is this hashtag other than a badge that says we believe anyone who calls themselves a victim of domestic abuse or sexual violence, and we are not prepared to look at the individual circumstances of each case before making our minds up? #webelieve is not prepared to consider the evidence, is not prepared to accept the outcome of a trial process, is not prepared to countenance the possibility that some (perhaps a very few) of the people #webelieve might have misremembered, misidentified, have been coached, exaggerated or even falsified their account (yes, false allegations may be rare but they do happen). Or just that the evidence isn’t there to prove the thing to the necessary standard.

#webelieve is ostensibly about securing justice for victims – ensuring that they are heard, believed, that they are not re-traumatised by a brutal and (potentially) abusive trial process, or put off from pursuit of their complaints. Those are all entirely legitimate aims. But the sad reality is that since it’s inception in (I think) about 2014 in the USA in connection with sexual assault and campus r*pe issues – see here for example) #Webelieve has become more about moral outrage than actual justice. And anyone who questions the premise is said to be a r*pe apologist. Therefore, I fully expect to be tarred and feathered for questioning the narrative. Bring it on. I want actual justice for women (and men) who are victims of physical or sexual violence. And we don’t get that by sidestepping a proper process or by failing to sift the truthful, evidenced allegations from those that are untrue or can’t be substantiated – what we get with a blanket #ibelieve is a degradation of the issue and a reduction in the perceived credibility of genuine victims.

We see this in debate about campus r*pe, in discussion about celebrity domestic violence, in treatment of domestic violence that doesn’t quite fit our male perpetrator : female victim (once a perp always a perp) model (we really can’t cope with that, see here – life is complex, relationships are messy. Even women do bad things sometimes). And of course we see it in connection with the historic child sex abuse inquiry and the broader debate – all attempt at forensic rigour appears to have simply been abandoned and an allegation is as good as truth, is equivalent to proof. Except when it all unravels as demonstrably untrue or impossible as has happened in a significant number of celebrity historic SA cases.

Take the Ched Evans acquittal last week. Whatever we think of Ched Evans (and I doubt many of us think very highly of his approach to women given his admitted conduct) a jury of our peers has heard all the evidence and was not sure enough that he r*ped X to convict him. Perhaps they thought he was entirely innocent (of r*pe, rather than his general behaviour), but we will never know. Whatever the ins and outs of the jury room discussions though, that’s an end of it. Except that twitter has gone wild. And (I’m sad to say) the Women’s Equality Party (@WEP_UK) were feverishly tweeting about the “flawed retrial [that] raises grave concerns about justice for victims of sexual violence” (and less feverishly ignoring tweets from actual lawyers pointing out that the trial appears to have been conducted in accordance with the law and with due regard for the restrictions on the introduction of evidence about the victims prior sexual conduct). They said “This put the victim on trial, not the accused. Historical evidence of consensual sex does not preclude the possibility of r*pe.” Notwithstanding the obvious fact that if someone has suffered the horror of r*pe, the experience of giving evidence about that r*pe will be horrid, it is and I hope will always be considered necessary for evidence to be adduced of the fact of the r*pe before someone’s reputation is ruined and life altered. This does not mean a victim is “on trial”, but it does mean her (or his) evidence is being tested. That can be tough – and I don’t underestimate that : r*pe is awful, as is reliving it. But it is also awful to be wrongly accused, condemned or convicted and we must never forget that either. We must strive to make sure trials are fair to all, but we can’t abandon them altogether. I don’t suppose WEP really mean to suggest that the burden of proof should be reversed in these cases, when they say “historical evidence of consensual sex does not preclude the possibility of r*pe”. I agree it doesn’t, but where exactly does that get us? If it did preclude the possibility of r*pe I guess the trial would have been unnecessary. And I guess if #webelieve a survivor, survivors per se – and know better than any jury that actually heard a survivor’s own evidence, our trial process is also worth pretty little. Juries get things wrong, judges get things wrong – but very little of what I’ve seen about Ched Evans’ trial appears to set out a proper legal basis for complaint, it’s largely just raw disbelief – because someone has made an allegation…(one or two have quite legitimately complained that the Court of Appeal decision on admission of the new evidence was weak. They are entitled to do so. I don’t feel qualified to comment authoritatively on that).

I commend to anyone banging their head against the desk or slightly confused about this case to read Secret Barrister’s excellent 10 Myths busted about the Ched Evans case, which explains many of the follies out there. As others have pointed out, one can be a bit of a turd, one can treat women like dirt, but in and of itself this does not amount to sufficient evidence to prove the specific crime of r*pe. Much of twitter seems unable to draw the distinction, and I’ve no doubt the hysteria being created by womens’ rights groups about the injustice of Ched Evans’ acquittal is making many real and anguished victims less likely to come forwards. Well done there.

This paucity of intelligent discussion is not a new issue. I’ve been raising concern about the debased and polarised public “debate” about domestic violence for some time. See here for example about the Womens’ Aid 19 Homicides report published earlier this year (I’ve yet to see any acknowledgment or response to the issues I raised): 19 Child Homicides and here : Talking AT & OVER not TO & WITH.

2016 is littered with further evidence of our dysfunctional public debate, our weird distorted victim culture in which the taking on of the mantle of victimhood makes people somehow unchallengeable, or anyone who dares to test that victimhood as good as a perpetrator…I often wonder about victim culture, and whether it has gotten out of control – I’m not sure our insistent victim focus is helping anyone. I noticed today the recent publication of a consultation about vulnerable witnesses in criminal courts – I spotted it via a tweet from Dr Hannah Quirk, who observed the absence of any mention of fair trial for the defendant…

Courts reform gives stronger protection for victims & witnesses-not even a token mention of fair trial for defendant gov.uk/government/new…
29/09/2016, 09:51

Around the same time as the consultation was launched back in September (in the culmination of their campaign launched in January with the publication of their 19 Child Homicides report) Womens’ Aid took their criticisms of the role of Family Courts in failing victims of domestic abuse to Parliament, see here MPs call for end to abusive men using courts against families. The event was foreshadowed and accompanied by a significant (social) media campaign and at the event a number of MPs adpoted the Womens’ Aid line :

Peter Kyle, the Labour MP for Hove, said: “The family courts are being used to perpetrate abuse against extremely vulnerable women … One of my constituents has been cross-examined by her former partner on three separate occasions, the man who beat her, broke her bones and battered her unconscious.”

He said a transformation of family courts was “desperately needed” to end the “abuse and brutalisation of women” via the legal system….

Angela Smith, the Labour MP for Penistone and Stocksbridge…said the family courts needed to properly implement “practice guidance 12 J”, which is supposed to force judges to put the safety of children and their residential parent before the access rights of a violent and abusive parent.

She highlighted the demands in the Women’s Aid report for an end to the cross-examination of a survivor by an abuser in family courts, and for special protection to be brought in, such as separate waiting areas, to keep victims safe from violent partners in court buildings.

Smith said there was a need both to end the assumption that men who were abusive to women could be good fathers, and to embed a culture in the family courts of putting children first…

Keir Starmer, the former director of public prosecutions and Labour MP for Holborn and St Pancras, said it was important to look at the changes made to the criminal justice system to better protect victims of domestic violence – including special measures for victims and witnesses, and the presence of independent abuse advocates – and ask why the family courts were not making similar changes. 

He said there was growing evidence that perpetrators of domestic abuse were using the family courts to continue to harass and control their victims…

The article also made reference to the All Party Parliamentary Group report on Domestic Violence, published in April, which I’ve commented on here which makes some valid points and identifies some real problems, but which shares some of the flaws I think of the Homicides report (no doubt not unconnected to its heavy reliance on the homicides report and Womens’ Aid’s evidence).

A blog post on the MRA-UK site says this :

The blame here lies with the MPs. A lobby group cannot be expected to be balanced. But MPs are under an obligation to represent everyone fairly, and are assumed to be intelligent enough to seek balance. Instead it appears that our parliament can very easily be led by the nose by a lobby group which presses the right emotional buttons.

I don’t agree with everything in that blog post but this is spot on. There is so much more complexity to these issues than is being presented. And there is no balance in the debate.

I don’t doubt or minimise these individual stories. I don’t deny that in those cases, and probably in others, things don’t appear to be working as they ought. But I think we are focusing on the wrong issues. It is the job of a family court to test the evidence. It sometimes feels as if the courts are being criticised for carrying out that job. If the Family Courts are failing sometimes to do it as well or as sensitively as they might (and I know that is so), we need to focus on the barriers to doing the job better and more consistently – not on criticism without acknowledgment or understanding of those barriers, which are largely out of the control of those working in the courts themselves.  Accompanying the Guardian article I’ve cited above was a welter of tweets from MPs, and  a slew of tweets from Womens’ Aid about the (then) culmination of the Helen Archer trial, in which it was asserted the failures were not just about operational and resource issues but a fundamental failure of understanding:

This was also repeated by Polly Neate (CEO Womens’ Aid) at greater length in articles like the one linked to and here in the Telegraph :

I wish I could say that justice was the outcome for all the real-life Helens. But this is not the case – in either the criminal courts or the family courts.

There is an acute failure in both to understand the dynamics of domestic abuse, especially coercive control. More specialist training on domestic abuse is needed for all who work in them, especially judges.

After the acquittal Womens’ Aid predicted (wrongly as it turned out) that the family courts would fail again:

And finally, inevitably, the hashtags #webelieve and #freehelen converged :

Thus we saw The Archers (of all things) used as a lobbying vehicle by Womens’ Aid and other DV groups.

There is a fundamental cultural difference between the many groups that support and campaign on behalf of women victims of domestic abuse and the courts. It is not so much the fact of the cultural difference that is the problem as our inability to acknowledge it. Courts don’t do #webelieve, they do looking at the evidence from both sides before making up their minds. Evidence first, judgment follows. Support groups are all about #webelieve. Rightly, from one perspective, they accept what they are told by services users and clients and operate on the basis that if someone says they are a victim they are entitled to be believed. The very real risk of the #webelieve mentality contaminating the evidence and even encouraging the making of allegations is the subject of a whole different blog post (suffice to say that it can both put victims at risk of not being believed and put innocent parties at risk of false allegations or criticism. See here by way of example). It was easy to feel as if the verdict in the Helen Titchener case was right, not just because we were safe in the knowledge it was fictional, but because the listener was in the privileged position that no support worker, no lawyer, no judge and no jury can ever be – a fly on the wall as the abuse happened. Who knows whether a real Helen Titchener would have got off (I think probably not) – even I as a family barrister can see that the trial and pre-trial process itself was nothing like real life and things would have unfolded very differently so it’s impossible to reconstruct with just a tweak (I wrote about the trials here). Helen Titchener’s barrister passionately believed her client, but although she miraculously got her off it doesn’t seem to have made her a better representative (for example her incessant coaching in order to get the “right” evidence).

But in real life we don’t have the luxury of such certainty or inside knowledge or the easy abandon of fair procedure. We have (usually) only the accounts that two people tell us, mutually incompatible as they are. So the #freehelen hashtag was easy. There was only ever one side of the fence we listeners could be on, the side of #solidaritea with Helen, thus signalling our virtuous understanding of the scourge of domestic abuse and coercive control. No need to engage with the messy uncertainties of real life or the very real practical difficulties of securing a finding of coercive control even on the civil standard let alone in a real criminal court :

Taken to its logical conclusion #webelieve demands that we abandon any forensic process because such process is unnecessary when WE KNOW BETTER. And what’s more it tells us that such process is itself abusive, so those who argue for fair trials are part of the abuse. I reject such binary propositions, such lazy complaints. Court process can be used manipulatively, and in a controlling or abusive way – I have seen it happen and we must all be alert to it. We do fail sometimes to do justice to these cases (I include myself in this). But we cannot abandon evidence for hashtag justice or we are all doomed. We are an intelligent species. We can hold in mind two possible alternate realities whilst we listen and decide. And we must be prepared to do so, not condemning either complainant or accused whilst we carry out that process respectfully and calmly.

It is very sad that there are so many campaigns and campaigners whose aim is to protect women and to educate the public about this awful, difficult, complicated stuff that hurts so many people – and yet somehow many of them have become collusive with the shutting down of proper discussion of the complexities of abusive behaviour and the ways in which the justice system responds. We cannot conquer abuse by silencing or ignoring those who challenge us.

I hope this post doesn’t sound like a vehicle for bashing Women’s Aid or any other group for that matter. I’d genuinely like to have a discussion about this, and am happy to hear where I’m wrong – but sadly that has not happened to date and I’m not holding my breath. I have thought long and hard about whether I’m an inadvertent apologist for the system in which I work, but I hope I’ve made clear I share some of the criticisms that are made of it and welcome what can be learnt by listening to other perspectives. I disagree with much of what the mens rights lobby say about these issues too, and whilst that hasn’t been the focus of this blog post it has been of others. In my experience neither “side” of this debate listens very well to the other.

If #webelieve in justice, we must let each person say their piece before we rush to judgment.

Contact Denial = Coercive Control?

I’ve seen advice to fathers in a number of places since the coercive control law came into force in January, which is not accurate. I’d forgotten about it until last night, when I came across a tweet from @f4jofficial last night.

Screen Shot 2016-03-17 at 10.43.08

I don’t know if F4J are still offering this advice or how it is working out for them because they have blocked me on twitter (long story, tres boring), but I thought it would be useful to correct the misunderstanding about what the law does – and does not – cover that is inherent in the suggestion that men should report contact denial to the police and ask it to be treated as coercive and controlling behaviour under the new law.

The new offences are set out in the Serious Crime Act 2015, s76.

The bit we need are these parts of subsections (1) and (2) (the definition of the offence is more complex than this, but these are the bits that relate to the question of whether a parent denying contact to the other after the end of a relationship is committing an offence under this provision.

(1) A person (A) commits an offence if—

(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,

(b) at the time of the behaviour, A and B are personally connected…

(2) A and B are “personally connected” if—

(a) A is in an intimate personal relationship with B, or

(b) A and B live together and—

(i) they are members of the same family, or

(ii) they have previously been in an intimate personal relationship with each other.

So, in our scenario A is the contact denier. Let’s say, for the sake of argument, she is the mother of the child. B is the father of the child.

She would have to deny contact more than once or continuously. So stopping contact once is out.

It would have to be in its nature or purpose controlling or coercive. So, lets say she stopped contact because the child was genuinely ill or because the father was an axe murdered with an axe in his hand threatening to murder the child (slightly extreme example) – the purpose is not there.

The really critical point though is this : A and B must be “personally connected”. This has a specific meaning which is that either the parents are in an intimate personal relationship OR they must be living together AND either be members of the same family OR have previously been in an intimate relationship.

If A and B are no longer in a relationship and no longer living together A cannot commit this offence against B, through denial of contact or any other form of controlling behaviour. A might commit some other offence, but not this one.

In some cases A and B are not in an intimate relationship but continue to live with one another (for example because they can’t sell the house or can’t afford separate accommodation). Theoretically A could commit an offence against B IF she used denial of contact repeatedly or continuously to control or coerce B, but it is quite difficult (not impossible) to prevent a person spending time with a child when they are living in the same house.

Even if I’m wrong on all that B would still have to show that the behaviour had a serious effect on him that debilitated him in his day to day activities. See subsection (4).

(4) A’s behaviour has a “serious effect” on B if—

(a) it causes B to fear, on at least two occasions, that violence will be used against B, or

(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

Some parents will be very hard hit by denial of contact and their day to day functioning might be affected by a mental health issue – but it would have to be pretty bad to count for these purposes. I don’t think contact denial per se would cause the father to fear violence – but if it is accompanied by threats of violence there are probably other offences committed and other (easier and more appropriate) remedies, such as a non-molestation order.


What if B (the victim) is not the father but the child?

Let’s cover all bases, to make sure that we have thought about all possible scenarios. That is, we see A’s denial of contact as a denial of contact to the child (and of course it is the child’s right to contact we are often reminded to focus on)?

There are two major problems with this. Here we need to look at subsections (3) and (4) of section 76 :

(3) But A does not commit an offence under this section if at the time of the behaviour in question—

(a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and

(b) B is under 16.

(4) A’s behaviour has a “serious effect” on B if—

(a) it causes B to fear, on at least two occasions, that violence will be used against B, or

(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

Let’s unpick that. Subsection (4) first. The denial of contact has to cause B (the child) to fear on at least two occasions that violence will be used against him. So, unless Mum is repeatedly saying something like “you will get a smack if you go”, denial of contact is unlikely to meet this criteria.

Alternatively it must cause the child “serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities”. If the act referred to causing harm in general terms one might I suppose be able to argue that denial of contact was emotionally harmful – but that is not what it says. The child must be “alarmed” or “distressed” – and more than a little bit. AND that alarm or distress must being stopping the child doing the normal things a child of that age does.

But EVEN IF we got over all those hurdles subsection (3) is fatal. The bit of the 1933 Act being referred to says this : 

(1)     For the purposes of this Part of this Act, the following shall be presumed to have responsibility for a child or young person—

(a)     any person who—

(i)     has parental responsibility for him (within the meaning of the Children Act 1989); or

(ii)     is otherwise legally liable to maintain him; and

(b)     any person who has care of him.

(2)     A person who is presumed to be responsible for a child or young person by virtue of subsection (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him.

It isn’t obvious to a non-lawyer (I had to look up the 1933 Act), but because A (Mum) has parental responsibility for B (child) and because she is caring for him this offence just does not apply. It is not an offence under this legislation for one parent to refuse to allow the child to see his father or the father to see his child.

I do not see any basis upon which this new legislation could be used by a father who is being denied contact except in the very limited circumstances where he is still living with the mother of the child AND her behaviour otherwise falls within the terms of the act.

So I am afraid that any father who reports a mother to the police for contact denial and suggests it is an offence of coercive and controlling behaviour is likely to be frustrated and disappointed by the response of the police (although I would be interested to hear otherwise). It is patently NOT what the act was designed to tackle, and I do not think it can be bent to that purpose because its wording simply does not stretch to encompass the sort of behaviour and scenarios we are talking about.

I am not condoning the denial of contact, but I don’t think this act is helpful to those denied contact, and I wonder if reporting a mother to the police in this way might itself be rather unproductive – and might contribute to allegations of harassment (I don’t think that the Act would protect someone who is being continuously asked for contact and complained about if they refuse to complain of coercive and controlling behaviour either – for all the reasons above). However using courts and police complaints in a tactical way in order to pressurize someone into granting contact could itself amount to controlling or coercive behaviour even if not covered by the Act, and is behaviour which could potentially lead to other sorts of action or orders being made against a father. If you are being denied contact for no good reason going to the police is probably not the best way of dealing with it.

I am intending this post as a constructive contribution to the debate on this topic, and one which offers practical guidance to fathers trying to resolve difficult situations. Sadly, it seems unlikely it will be received that way. Whilst I have been typing this post, this has been going on…Screen Shot 2016-03-17 at 10.47.28

I’m not sure precisely how this post will be interpreted as me fleecing fathers (gratis as it happens) but I am sure it will…

I will tweet this post to @F4JOfficial so that they can pass useful information on to their members (I can’t do it, I’m blocked). I might be a feminist but I do know the law.

24 month legal aid cut off for evidence of dv finally ruled unlawful

It’s taken long enough. But finally, the Court of Appeal has said what we always knew – the regulations setting out what evidence can be used to qualify for legal aid as a victim of domestic violence are unlawful. In short, the limited categories of document and in particular the 24 month cut off arbitrarily deprived victims of domestic violence whom Parliament had intended to protect of the very protection (legal aid) that LASPO allowed them. The Court of Appeal also found that the categories of evidence meant that a victim of financial abuse would struggle to tick the right boxes.

Suesspicious Minds has covered the judgment here. As he says, it’s a bit technical and involves a lot of stuff about Wednesbury and Padfield – but the thrust of it is as above  – the regulations went a bit far and were incompatible with what Parliament had intended to achieve (cutting costs whilst also leaving in place legal aid for victims of dv of all sorts).

So, a small hurrah for that.

As Suesspicious Minds points out though, it does not solve the problem for alleged perpetrators of dv who are left without legal aid (and of course this is also a problem for the alleged victim, who may have to be cross examined by him /her). That is in a different category however, because whatever you or I think, Parliament very definitely did decide for its own impenetrable reasons, that alleged perpetrators should not be afforded legal aid. That’s one that would have to be sorted by Parliament if it were ever to change.