Historic Sexual Allegations - How the law works and what you can do
What are Historic Allegations of sexual offences?
Historic sexual allegations simply mean allegations made a long time after the incident that is being complained about. These allegations are often covered by the older law that was in force at the time, so can be more legally complicated and therefore benefit from the involvement of specialist sexual offences solicitors from the beginning.
A basic principle of criminal proceedings is that the defendant should be able test the evidence which is presented against him or her. This is not so easy when no complaint was made to police at the time. There is now a widely held understanding that genuine complaints can take years before a victim has the courage to come forward. This means that prosecutors will often bring cases with little or no corroboration or forensic evidence, years after the alleged incidents, making it more difficult for the defendant to disprove the allegation. While the intentions here may well be noble, there is clearly a real risk to justice, as it becomes harder and harder for the jury to tell the difference between genuine victims and malicious or deluded complainants.
The first that a person accused may know of an investigation against him or her will usually be an unexpected contact from the police, either in a dawn raid and arrest, or by telephone asking to come down to the station ‘for a chat'. The dawn raid can be a horrible experience, as it not only affects the suspect, but can also undermine the sense of security of children and other family members at home. The ‘chat down the station', if it is phrased by the officer in this way (often with no threat of arrest initially), can be just as dangerous, as police officers often misrepresent the nature of the visit to the station in order to ensure that the suspect arrives at the police station unprepared and, importantly, without a sexual offences solicitor. Either way, it is very important that anybody asked to speak to a police officer, either by appointment, or on arrest at home, requests a sexual offences solicitor, even if it is suggested that having one may delay proceedings. The right advice at this stage can often lead to the situation being neutralised without the need for court.
The Investigation - Evidence and Charging Standard
When the police investigate historic allegations, a great deal of latitude is given to the person making the complaint with regard to how consistent and reliable they are. This could mean that accurate dates of when offences are supposed to have taken place aren't given. It could also mean that even if there are major inconsistencies, such as an incident allegedly taking place when the suspect wasn't even present, he or she could bizarrely end up still being charged.
Because police and the CPS in the recent past have faced major criticism for the low investigation and conviction rates for these allegations, the starting point for them now is be more inclined to believe the person making an allegation. The pressure that recent scandals has brought upon the authorities has of course made it easier for genuine victims to come forward. But sadly this new agenda has also meant that the specialist police units who investigate this type of complaint are less likely to detect or even to be open to detecting false allegations.
As already mentioned, one aspect of these investigations is that the passage of time means that allegations that are vague and not supported by any other evidence are taken as reliable, and allowances are made for the failure to make an allegation at the time. If the complainant was a child at the time, this may seem reasonable.
How the Law Works
Which version of the law applies to a case is decided according to when the offence is alleged to have taken place. The law has changed over the years and some examples are set out below.
For allegations before 3 November 1994
A man can't be the victim of rape
The defendant could be found not guilty if he genuinely believed the other person consented, even if that was an unreasonable belief.
For allegations between 3rd November 1994 and 30th April 2004
The defendant must be a man
The victim may be a man or a woman
For allegations from 1st May 2004
Men and women can be victims of rape
Men and women can commit rape
Marital rape in the past was not considered an offence. It now is, however, and the law is to be read retrospectively. Similar principles apply as to other allegations of rape where consent is the issue. For more information, see the page on rape allegations.
Strategy in these cases - defence evidence and investigation
So how should the defence of a historic allegation be prepared? There is no hard and fast set of rules, but the following are avenues which a specialist sexual offences lawyer should try to explore:
Disclosure relating to the victim's background (including so-called ‘third party' disclosure)
This includes social services records, school records, employment records ( including disciplinary records), records of previous criminal allegations. It should be noted that this is not information that will usually be disclosed as of right by the prosecution at court. The defence must be vigilant and aggressive in pursuing this information from the prosecution. The attitude of the prosecution will usually be unhelpful and lethargic in complying with their duties to assist. This is why these requests should be made as soon as possible after charge.
A detailed analysis of the complainant's story
It goes without saying that every single statement made by the complainant should not be taken as true and checked if this is possible or useful to the defence. A fine tooth comb approach to detail and possible inconsistencies is of great importance. This may include the way in which the account given to different people may have changed over time, and even looking at the demeanour of the complainant during the video recorded interview if there is one.
Analysis of the circumstances at the time of the allegation
The sexual offences solicitor who wants to defend his or her client properly begins at a disadvantaged position, because that lawyer was not there years before when the incident is alleged to have taken place. It is not enough for the lawyer to just read the prosecution statements and evidence and challenge the case on that basis. A properly prepared defence in this type of case involves spending time with the client getting to know as much as possible about the surrounding circumstances at the time of the allegation. This might include looking at times that the client would have been or could have been alone with the complainant, looking at diaries or other ways of telling whether the client would have been around when incidents are alleged, the dynamic of family relationships, especially if these might give a motivation to lie, the physical layout of the places involved, including, if possible, deciding whether site visits are of any use to the defence case. This obsession with the surrounding details of the case is a great advantage if the resources will allow. It is not always clear at the time which of these details could end up being useful, but a deep understanding of the background on the part of the sexual offences solicitor is nearly proves to be a significant advantage.
The good character of the client
One of the recurring aspects of this type of case is that the client will often have no relevant criminal past and be of excellent character. This means that the defence will be able not only to attack the prosecution, but also to put forward a positive and proactive defence case. The aim is to put the client before the jury as a person whose life and reputation is simply incompatible with the type of behaviour alleged, the defence are not just relying on the prosecution not making the case out. This should be reinforced by the use of live character witnesses to appear in court, accompanied by a large number of written character references for the jury to read during deliberations.
Choice of advocate
The use of a specialist advocate in any sexual allegation is very important. There are rules relating to the evidence and procedure which are specific to this area of law. A careful approach may also required in cross examination, where an advocate may want to show a complainant is lying without angering the jury.
One thing the defendant in this type of case will have to consider is funding. As legal aid funding for this type of case has been savagely cut by the government to an all time low, it is sadly worth noting that even people who do qualify for legal aid and potentially free legal advice, still often choose to fund their case privately in order to have the best chance of acquittal.
Sentencing in historic cases
Sentencing in historic sexual allegations depends on a number of factors, including what type of sexual assault is alleged, the age of the victim, the period over which the abuse took place, the age then and now of the defendant, and a number of other factors.
Further guidance specific to historic allegations was given in the case of R v H and others. This case states that harm to the victim must be considered by the sentencing judge carefully. The passage of time since the original allegation is also something the judge must consider. If the defendant has used this time to live a blameless life, this will be considered a positive aspect of his or her mitigation.
The need for legal advice
Any sexual allegation, whether unfounded or not, can cause huge trauma in personal and family lives. If you or a relative are concerned about an investigation or prosecution for a historic sexual allegation, always speak to a historic sexual offences solicitor.
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