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).

https://twitter.com/rasasc_london/status/786983226652893189

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...

HannahQuirk1
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:

https://twitter.com/womensaid/status/775329558434353152

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:

https://twitter.com/womensaid/status/776126508712812544

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 :

https://twitter.com/womensaid/status/773945206580375552

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.

15 thoughts on “We Believe – doing violence to due process

  1. No, you are not wrong, though not all will agree. Allegations do need to be tested by a court because not all allegations are true, something the campaigners can’t contemplate. And that means that those who make allegations do need to be examined and their allegations challenged. Making life easier for the makers of allegations – which is a worthy cause – can result in making false convictions more likely, and we must maintain a system in which false convictions are rare. This means striking a balance between protecting victims and protecting the innocent (and even the guilty have the right to a fair trial). The history of the now notorious Section 41 is the history of trying to strike that balance, which the earlier 1976 legislation failed to achieve. Women’s Aid, Vera Baird and co. claim that the Ched Evans case has taken us back 30 years – presumably to a time prior to the current legislation, but isn’t that actually precisely what they want to achieve, by returning to the situation before 1999? The presumption of innocence and the rule of law are under attack as never before (Julie Bindel wants an end to trial by jury in these cases) and the #ibelieve movement (which surely started with the Believe the Child movement in the 1980s) is advancing. You are right to resist it.

    • I completely agree, Nick. I and my family have been at the receiving end of false allegations of various sorts, made for reasons of fighting a custody battle. Respondents in false allegation cases are every bit as much victims as are genuine survivors of abuse, if they are convicted “by opinion” rather than proper examination of evidence.

  2. I could never understand why if two people get blind drunk and have sex anyone can claim it is rape.

  3. We all believe. It whether we are right to or not. I remember one of your tweets catching my eye a few days ago, it was about Bell Ringers being banned from York Minster. It certainly did not ring true with me, knowing how the average Church needs a full scale meeting and a sub committee to move a chair;there had to be a very well reasoned decision behind the ban. I found out more http://www.bbc.co.uk/news/uk-england-york-north-yorkshire-37681550 . So you and apparently 16,000 others who signed the petition believed a story that may not be completely truthful.
    This is not a personal criticism Lucy, I am just using it as an example. People simply, put their support behind causes they personally relate to That’s what I feel #IBelieve is about, nothing more sinister. Especially if they have struggled to be believed themselves or know someone who has

    • Sam,

      First of all, don’t worry I don’t feel under attack from you!

      There of course had to be a reason behind the bell thing. The issue for me was not the hidden reason (I knew there would be one), it was the hokey management speak reason given by the church in the first instance. Anyway, that is another story….

      To come back on topic : Yes, we do all believe. And we are all sometimes wrong. That includes lawyers and judges. I hope I acknowledged the positive motivation behind #Ibelieve. And I do understand the experience of genuine victims feeling as if they are not believed. It makes everything worse. All I am saying is that it should not be allowed to silence us or to beguile us away from the necessary if difficult task of testing evidence. I think we need to create a more positive narrative around trials – I often tell social workers not to get defensive because this is their opportunity to justify their decision making and work, and for their professional work to be vindicated. If handled well a trial should be similar for a victim : an opportunity to tell their story, to be listened to, to have their account vindicated (possibly). That doesn’t mean I think we make it all roses, but we could stop filling people with more dread than is really necessary. Trials are not pleasant things for anyone, but they are an important process on a journey to recovery for some – a thing that has to be done to move on, for some regardless of outcome. Anyway, I’m straying off topic…I understand why #ibelieve has come about and why it is so powerful and so comforting, but it is also dangerous if it gets in the way of us being objective and a little bit dispassionate about things.
      Thanks for your comment

  4. Well thank you Lucy ! Glad (hopefully) you agree that two persons equally and disgustingly drunk are equally responsible no matter who does what and to whom if no protests are made at the time

    • I don’t agree no. It depends on the facts and upon the capacity of the people involved to consent. Please don’t put words into my mouth.

  5. Lucy as a social worker and a feminist I totally agree with you about the Ched Evans case, I certainly do not think
    highly of him but rape it was not. I hope he thinks more wisely in future and reframed his attitude to women but I am pleased the retrial did not find him guilty of rape. I just hope everyone thinks calmly and sensibly and does not start some mega campaign on his acquittal, there are too many awful things happening in the U.K. that need to be addressed.

  6. As it now appears that in fact the male bell captain at York Minster has indeed been wrongly accused, and safeguarding has been used as an excuse to remove an articulate and legally aware bellringing team by an overbearing Dean, where no safeguarding issue existed, this is probably not the best example to use. Personally, I am looking forward to seeing the former lawyer Sentamu explain a blatant breach of the principles of natural justice and quite possibly several rather important sections of the HRA and DA.

  7. Well said lucy. Working as a family solicitor I’m sure I’ve seen false/exagerated/one-sided accounts of dv being used against (usually) fathers. On the other hand I’ve had my eyes opened to the amount of abuse, which is far more common than most people think.
    Examining the evidence without any presumptions has to be right both to do justice and be seen to do justice.

  8. The Guardian have an expose on “victims of DV” being abused in the Family Court
    https://www.theguardian.com/society/2016/dec/22/revealed-how-family-courts-allow-abusers-to-torment-their-victims

    I find it difficult to believe a judge would sit there and allow the question ‘When did you last have sex?’ to be asked of any witness let alone one who had alleged DV.

    The solution of course is to provide legal aid for the accused so the accuser doesn’t have to face their alleged abuser in court. However it’s the accuser who get the legal aid, not the accused.

    • It would almost certainly be an improper question whether coming from a lawyer or litigant. I agree that most judges would not permit this. The article doesn’t actually suggest that there is evidence of this sort of question being asked, although if litigants are asking their own questions it is the sort of thing they might mistakenly think relevant / helpful to them. The examples given in the linked post vary in terms of level of judiciary – one says “lay justices”, one says “judge” and the other rather opaquely refers to “court” so we don’t know. I think that this sort of question is more likely to slip through with lay justices where it is difficult to intervene by committee – the risk is that the everyone is waiting for someone else to interject if something inappropriate is said (3 magistrates / legal adviser, possibly a lawyer for the complainant). IF an alleged perpetrator is going to be asking questions directly (and there are other ways around that) there should be proper ground rules in place for what can and can’t be asked, special measures etc BEFORE things start. I’m not sure how common it is for the ground rules for vulnerable witnesses on the Advocates Gateway to be deployed in private law cases where there are fewer / no lawyers.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.