Robert Colover investigation: the misunderstandings around sex offence trials

Sex Offence TrialsDesign Pics/Rex Features
By Felicity Gerry

Calamitous comments by barrister Robert Colover have made the headlines this week as he referred to the victim of sexual offending as “predatory” and “sexually experienced”. The defendant was appearing for sentence before His Honour Judge Peters QC sitting at Snaresbrook Crown Court for two counts of making (downloading) extreme pornography (not images of children) and one count of sexual activity with a child. He received a sentence of eight months imprisonment suspended for two years. He was 41-years-old and she was 13-years-old. The CPS, who instructed the barrister to prosecute this case from their list of accredited advocates, has issued a press release that the comments should not have been used and initiated an investigation.

The Attorney General has been asked to refer the sentence to the Court of Appeal as unduly lenient. Barbara Hewson has defended the comments in the context of reinforcing her previous comments that children can be equally culpable in such circumstances. She believes the age of consent should be lowered. Conventional opinion is that legislation is necessary to protect children from abusers and, for those perhaps more developed than others, to protect them from themselves. The adult is responsible and should stop such behaviour, not engage in it. Unfortunately, lax opinions in this area simply give a cloak to abusers to offend. Any child engaging in sexual activity with an adult who is described as “sexually experienced” is inevitably vulnerable. It is not clear from the current news reports whether or not the defendant was also vulnerable.

The maximum sentence for sexual activity with a 13-year-old child is measured in years not months but the actual sentence will depend on the situation for both the offender and the victim. The sentencing judge must consider the type of sexual offending, the impact on the victim and the personal mitigation of the defendant. This was plainly an unusual case that was probably on the threshold of the public interest test. Not every sexual allegation is prosecuted and this may in time turn out to be one where there may be some sympathy for the defendant, whatever words are used to describe the particular events in the case. There is a current consultation in relation to sentencing for sexual offending but the current Sentencing Guidelines issued by the Sentencing Council demonstrate that the purpose of the legislation is to recognise that underage children can make poor choices and it is the responsibility of the adult not to engage in sexual activity whether penetrative or not.

In the case in hand, the child required more protection because of her existing vulnerability, not less. At the same time, it seems that this defendant was not responsible for her initial corruption. There are cases where the offending will be of lower culpability and public outrage at the use of certain words, whilst understandable, should not influence sentencing policy which has to deal with a wide range of criminal circumstances. Of course, all of this comes at a time when there is an awful lot of criticism surrounding advocates cross examining vulnerable witnesses in trials, even though they are bound to fearlessly defend their clients.

There is a great deal of misunderstanding around the process. In nearly all cases involving sexual allegations, court procedures are adapted and a non-aggressive approach is taken so that the witness can give his / her best evidence. Skilled advocates use the tool kits and other guidance provided by The Advocacy Training Council who worked with the Criminal Bar Association to provide this valuable and free resource. Thousands of sex cases are heard up and down the UK with no issues at all. A few errors should not be allowed to imbalance the system.

We do not need separate sex crime courts as that would risk the fairness of the proceedings. The announcement this week that there will be further training and accreditation for judges is not unwelcome. I also think it would help to have more female circuit judges as children are often more comfortable speaking to women. Prosecutors are already required to undertake regular training in order to be on the specialist rape and child sexual abuse lists. Defence advocate training in this area is currently voluntary but these cases are complicated and inexperienced advocates should never take them on. All in all, the current outcry is down to a few words in an otherwise very complicated scenario and proper comment is best left until all the facts are available.

Comments

  1. PrisonerBen says

    Depresingly, I thought your post was more ideological than illuminating. We should obviously begin with the initial source of outrage, the labelling of this girl as predatory. This should be a matter of fact on the evidence; but we just loath the idea that such a child could possibly be sexually active in such a way. But to deny the possibility is plain silly. And, to make a point that invariably gets raised – kids don’t need a history of abuse to become sexualised. It seems we are ideologically blinded to biology and all we have learned, such as Kinsey et al.

    Admitting that kids can be both sexual and proactive is not to take away any adults responsibility, not does it reduce the nature of kids victimisation. But it is an honest starting point that should underpin any outrage against the barristers comments. Or rather, undermine the outrage…

    What has increasingly annoyed me about this case – and the ideological views that surround child abuse – is the almost literally schizophrenic views of children, sexuality and their responsibility. We assert (not evidence) that kids under 16 are not developmentally mature enough to be responsible for their sexual decisions. Hence, no matter what the actions of a child, it is the responsibility of the adult to set the boundary and say no.

    This view, though, only holds until the moment a child commits a sexual offence (or any crime). Suddenly, kids as young as 10 are endowed with adult moral reasoning and are said to be completely capable of being responsible for their sexual decisions.

    This is rank hypocracy highlights the sad truth that this debate is ideologically based, not evidence based. It rests on assumptions and assertions, ones powerfully defended in the popular discourse. But it also reveals the sheer cant and incoherence in the assertion that kids cannot be responsible for their sexuality. We love that idea – right up to the point we throw them in prison for sex offences.

  2. says

    PrisonerBen has led the way in pointing out the inconsistency between holding children irresponsible for their sexual behaviour but fully responsible for their criminal behaviour. Dan Bunting has written an interesting piece on this here http://danbunting.wordpress.com/ In England children are deemed criminally responsible at 10 and sexually responsible at 16.

  3. says

    Hi Ben

    Thx for comment. Further to our twitter conversation, my views on young offenders and raising the age of criminal responsibility are here: http://www.halsburyslawexchange.co.uk/young-offenders-raising-the-age-of-criminal-responsibility/
    I agree – it makes no logical sense to prosecute children under 12 for offending, especially in sex cases where (as victims) children of that age are deemed to lack capacity. I also think in relation to prosecution of children under 14’s we should bring back proof that the child knew what s/he was doing was seriously wrong. The law has to have guiding principles that certain offending is wrong but then be flexible enough to recognise that children develop at different rates. The law is complex in this area but obviously prosecution of an adult for sexual activity with a child is very different from sex between children although some adults are more culpable than others and some children more aware of their bad choices. You also need to bear in mind that most sexual offending is about violence and power / corruption, not sex
    It’s a lot to think about I agree
    Felicity

  4. LucyLockett says

    ” At the same time, it seems that this defendant was not responsible for her initial corruption.”

    While we’re on the subject of grossly inappropriate language and victim blaming, can we just remind ourselves that a woman or girl who has ceased to be a virgin, either by entering into a consensual relationship or being subjected to sexual assault and abuse, has NOT thereby been ‘corrupted’. When a child is the victim of sexual assault and exploitation she has been assaulted, attacked, offended against, misused, exploited, victimised – not deprived of moral integrity. That remains the territory of the abuser.

    [Corrupt: adjective

    1 having or showing a willingness to act dishonestly in return for money or personal gain

    evil or morally depraved

    2(of a text or a computer database or program) made unreliable by errors or alterations

    3 archaic (of organic or inorganic matter) in a state of decay; rotten or putrid]

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