In this podcast we are joined by Associate Professor of Criminology at The University of New South Wales, Michael Salter, to discuss sexual violence in GBQ relationships.

In recent podcasts we have discussed the issue of consent, and decided to revisit this because we thought it would be interesting and useful to explore this in the context of GBQ relationships.

Research has highlighted that consent, or rather the lack of it, can lie behind intimate partner violence and sexual assault.

Those who participated in the research, openly in many cases, revealed that in relationships they had been subjected to unwanted or non-consensual sexual acts on the part of their partner, for example, against a backdrop of substance or alcohol  misuse. Sometimes violence is used or threatened and examples were also given of blackmail. Coercion through a threat of “outing”, or the use of controlling behaviour was also identified.

Some of those who took part in the research thought that some of these behaviours might be acceptable in some situations, which begs concerning questions in relation to insight and informed consent.

The research revealed that some who had experienced sexual violence considered that was a degree of normality, which might possibly arise from the understanding that for many, violence and coercion was common. Conversely there was a widespread understanding that violence was unacceptable and illegal.

The research suggests that there needs to be a far more open discussion about respectful relationships and consent. This of course applies to society as whole but in the GBQ context there is clearly an openness to explore and understand very personal issues and needs, which in fact go far beyond the individual.

Listeners and readers in Australia may obtain further information concerning access to advice and support at the following: www.sayitoutloud.org.au/

In this podcast we are joined by Associate Professor of Criminology at The University of New South Wales, Michael Salter, to discuss the concept of false memory syndrome. In the field of Child Sexual Abuse (CSA) it has waxed and waned and is now possibly completely discredited.

In CSA litigation or prosecutions it is sometimes alleged that the victim (survivor) cannot possibly remember events from their childhood, or what they are alleging is just fanciful and possibly no more than a figment of their imagination. To put it in simple terms, the victim is told that their memory is at fault.

We all know from our own experiences how “good” our memory is. Sometimes we can remember certain events and happenings but not others, for example, forgetting where we put the car keys. But when it comes to CSA, can victims really get it wrong with their recall of something so serious?

Research suggests that CSA survivors are usually good historians when it comes to their abusive experiences. The Royal Commission into Institutional Responses to Child Sexual Abuse commissioned research on memory, and this identified a number of misconceptions that people hold about how memory works, and what memories are reliable. It reported that misconceptions about memory include that memory will be complete, unchanging and “photographic”.

There are also misconceptions about the accuracy of people’s memory. Wrong assumptions may be made about a connection between accuracy of a memory and consistency of accounts given by a witness, where inconsistencies or gaps may be assumed to demonstrate inaccuracy in the witness’s accounts as a whole.

The research finds there were misconceptions about the display of emotion while giving evidence being an indicator of accuracy of the memory retrieved.

The research also found that traumatic events resulting in greater durability of memory is another misconception, as is expectations about children’s ability to recall temporal details, such as when an event occurred or how often it occurred.

A witness recalling additional information over time as they give further accounts of the event may be mistakenly considered with suspicion or as an indication of unreliability.

When it came to the concept of false memory the research found interestingly that in certain cases, adolescents and adults may in fact be more suggestible than most children.

The research detailed the history of psychological research on suggestibility and false memories, and the ‘memory wars’ between treating clinicians and experimental psychologists. These issues were set in perspective by findings that susceptibility to post-event misinformation is limited to minor details, not core memories. Moreover, only a very small percentage of people recover memories of child sexual abuse in therapy. Contemporary research findings demonstrate that concerns about the prevalence of false memories of child sexual abuse appear to have been exaggerated.

So where did the concept of false memory originate?

We discuss the possible answers with Dr Salter, and in particular the natural revulsion on the part of most people when it comes to the notion that children can be sexually abused. Further, that the root possibly goes back to societal disbelief of women’s allegations of sexual violence, and that this has generated scepticism and the silencing of victims.

The 21st century reality is that through successful and high profile prosecutions of child sex offenders and the work of inquiries such as that in Jersey and the Royal Commission societal awareness is now very different to say 20 years ago. The narrative has changed and this has put pay to the concept of false memory.

A British teenager convicted of falsely accusing 12 Israelis of gang-rape was permitted to leave Cyprus after having received a suspended sentence.

The 19-year-old student had accused a number of Israeli football players of gang-rape.  Following her retraction, the alleged abusers were permitted to fly home.  The investigation into the claims was dropped, with the teenager being forced to spend a month in prison before being granted bail on the condition that she surrendered her passport.  The circumstances of the case include video footage having been taken during the alleged rape.

The case highlights the difficulties which bedevil evidential issues in rape cases and also, highlights the issue of consent.  The Israelis claimed this was consensual and as such, a significant conflict in the evidence arose.

There is a large contingent of supporters of the victim who say she was let down by the Cypriot justice system.  It is not for us to say who is right and who is wrong.

What is certain is that this case demonstrates how evidential issues and a weight of opposing evidence might well dissuade a victim from reporting the abuse.  The justice system demands the offence be proved “beyond reasonable doubt”, which is a high bar.  When the alleged crime occurred behind closed doors, which is commonly the case, it is very difficult to obtain a conviction.  The statistics in the UK as to how many rape cases are dropped before trial highlights this issue.

This case also raises the issue of consent.  It is right to note that the victim says she did not consent, whilst those accused say it was consensual.  It is also right to note that the circumstances, in our view, make this defence of consent highly questionable.  Consent is a very nuanced concept, a person may consent to some acts and not others.  Notably it is right to ask – did the victim consent to the video being taken?  If this was done without her knowledge, this alone is a valid complaint. 

In other podcasts we have noted that if someone consents to vaginal, anal or oral penetration only if they agree by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time the activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. This case brings that issue starkly into focus.

Today we will discuss this case, and these concepts generally.

The vast majority of us have hailed a taxi to get from “A to B”. It is an aspect of modern life with which we are familiar and never really give much thought to perhaps, until now. There have been a number of very high profile media reports concerning sexual assaults in the back of cabs.

There is of course the notorious “black cab” case of John Worboys who drugged and raped his passengers and is now serving a life sentence for his numerous crimes.

We now have Uber which revolutionised “hailing a cab”, revealing that in the USA it received almost 6,000 reports of sexual assault in 2017 and 2018.

While the number of cases rose in 2018, the rate of incidents dropped by 16%, as the number of journeys was higher.

Passengers, as opposed to drivers, accounted for nearly half of those accused of sexual assault.

The data was published in a report which Uber said showed its commitment to "improving safety for Uber and the entire industry".

Uber is facing growing scrutiny around the world, and recently lost its licence to operate in London.

The report showed 5,981 sexual assault incidents were reported out of the 2.3bn US trips over the two-year period.

Uber claimed 99.9% of the total journeys were concluded without safety issues.

The report makes fascinating reading, but for our podcast we want to explore the question of liability when in those cases things go terribly wrong and a passenger is sexually assaulted.

Many “cabbies” are self-employed, but many are not and work for an employer, or are “contracted”.

If a driver sexually assaults a passenger they are of course both criminally liable but also liable to pay compensation for having committed the tort of assault.

If the driver is working for an employer then this may be a case of vicarious liability.

The doctrine of vicarious liability applies to make employers responsible for the harm caused by employees committed during the course of their employment, provided there is a close connection between their job and the wrong complained of. For example a school or education authority is likely to be vicariously liable for a sexual assault committed by a teacher on their pupil.

If an employed “cabbie” sexually assaulted a passenger the employer may be vicariously liable. Each and every case is unique and the facts in each are determinative of liability, but as a general principle the argument would be that it was the driver’s task to take the passenger to their destination and to do so safely.

If the driver was not employed in a general sense but was “freelance” or contracted in some way there could be still be a vicarious liability situation and arguably so if the contractor was in effect giving instructions and determining how they went about their business.

Similarly there may be liability if the driver was the agent. A principal is normally liable for all acts of an agent within the agent’s authority, whether responsibility arises in contract or in tort. Authority means the agent’s actual, apparent (ostensible) or usual (customary) authority. This can be contentious because the argument would be that the driver was not authorised to assault his passengers, but then a teacher is not permitted to assault the pupils, and so the court examines the nature of the relationship between employer and employee to see if there is that close connection. This is back to the vicarious liability test.

The issue of consent can be a live issue in sexual abuse cases.

It becomes an issue when the defendant or alleged abuser, if you prefer, admits to having sexual activity with his/her victim, or as they say willing partner, and that what took place was consensual.

In the recent case of Reynhard Sinaga who is thought to be the UK's most prolific rapist ever, it became clear that for several years, until he was caught in 2017, he preyed on young men who had been enjoying a night out.

Reynhard Sinaga, a 36-year-old postgraduate student, had made his home in Manchester for more than seven years. He has been sentenced to life imprisonment following a trial at Manchester Crown Court.

Sinaga, originally from Indonesia, was a perpetual student. He already had four degrees and was studying for a doctorate. By night, however, he was a serial sex offender.

He has been found guilty of drugging, raping and sexually assaulting 48 men, but police believe there are among at least 190 victims.  They are able to be so precise about these numbers because Sinaga filmed his attacks and collected what detectives call "trophies" - items or information stolen from his victims.

Sinaga typically approached his victims in the street. His targets were men mostly in their late teens or early 20s who had been out drinking, often in the nearby nightclubs. Some were on their way home; others had become separated from friends.

Many were too drunk to remember their conversation with Sinaga, but for those who did there was no indication of a sexual motive. Sinaga used various pretexts to entice each to his flat.

Some victims could recall being provided with a drink and then blacking out having been drugged. The judge said she was sure that Sinaga had used a form of date rape drug such as GHB (gammahydroxybutyrate). GHB is a class C drug and anyone found in possession of it can be imprisoned for up to two years.

Sinaga drugged his victims before assaulting them while they were unconscious. When the victims woke up many of them had no memory of what had happened.

He denied the charges, and claimed all the sexual activity was consensual and that each man had agreed to being filmed while pretending to be asleep - a defence described by the judge as "ludicrous".

Followers of the television soap Coronation Street will be familiar with the current storyline of David Platt who was raped by Josh Tucker. Viewers are watching Josh’s trial develop with the defence based on consent.

What is consent?

Consent is defined by section 74 Sexual Offences Act 2003.

Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. Recent high profile cases concerning football and rugby players have highlighted how difficult it can be to prove that the suspect(s) did not have a reasonable belief that the complainant was consenting.

The issue of consent can remain live even if in the wake of a criminal conviction the complainant seeks compensation either from his/her abuser or those responsible for him/her for example an employer.

The defence that is argued is that the criminal components of the crime had been committed, for example by a teacher having sexual activity with a student over the age of 16 (the criminal age of consent) but he/she was old enough or mature enough to give full consent. Similarly, in the case of a child under 16 who was sexually assaulted, the defence might be run that even though the crime was committed there was consent. This may strike many as unpalatable but the realities of these cases are that motives and facts have to be examined with great care. In the Sinaga case his “defence” was seen for what it was and dismissed. There was no consent – the victims had been drugged and were unconscious. There are other cases though where it can be very difficult to unravel what was going on in the minds of those involved.

This is a frequently asked question and the answer is always fact specific, and so we will outline some scenarios that help define the general principles behind the answer.

Sexual abuse is not just a crime but also a civil wrong that enables the victim or survivor to bring a claim for compensation against the abuser.

The law is that if you assault someone then you are liable to pay them compensation also known as damages. The victim can take legal proceedings in the civil courts against the perpetrator and if they win the case the judge will order that compensation be paid.

To state the obvious, for this to happen, the abuser has to be alive. You cannot take a dead person to court. You cannot sue a dead person.

However, if the abuser has died relatively recently then the victim could take the abuser’s estate to court. The claim would be brought against the estate which means the personal representatives. If, however, the estate has been wound-up then it would be too late. Again to state the obvious if the assets of the estate have been distributed then it’s too late. Therefore a victim needs to act speedily in the event of the abuser dying.

Bear in mind though the estate may not accept the claim. If the limitation period has expired the estate has a potential defence to any claim. The Limitation Act 1980 provides that a claim for compensation is meant to be brought before a court within 3 years of the sexual abuse having happened. That period in the case of a child victim would have commenced on their eighteenth birthday. A court has a discretion to waive the limitation bar, provided it's fair to do so and the reason for the delay in coming forward is reasonable.

The answer to the question will depend very much on the facts and circumstances, but survivors should not delay in pursuing a claim. Every day that passes carries the risk that it will be too late.

Some survivors may look to those legally responsible for the abuser, for example an employer. If the abuser has died the former employer again may rely on the limitation defence. The argument will be that a fair trial is no longer possible given that the abuser or alleged abuser is dead. If, however, there is evidence that proves the sexual abuse regardless and/or there had been successful criminal proceedings then arguably the fact that the abuser (or alleged abuser) is dead is not so significant.

To conclude the answer to the question is very fact sensitive. There are considerable obstacles to pursuing a successful case if the abuser is dead but much will depend on the circumstances.

In this episode of the HJ Talks About Abuse podcast, Alan Collins and Sam Barker discuss the topic of abuse in the medical profession.

This is highly topical at the moment with the case of GP Manish Shah being in the news recently. 

The London based GP sexually assaulted 23 female patients by performing unnecessary examinations for his own sexual gratification under the guise of cancer screening.

One of the main issues in this case is the breach of trust between doctor and patient. When you visit a medical professional, they have spent years obtaining specialist knowledge to help them provide the right diagnosis and treatment. The patient must place a profound amount of trust that the professional will have their best interests in mind. 

Alan and Sam look into the Manish Shah case in more detail and discuss the issues that are brought to light by similar cases.

For more information about abuse in the medical profession or to suggest a topic for a future episode, email aboutabuse@hjtalks.co.uk

We have covered in previous podcasts the prevalence of online sexual abuse. We make no apologies for returning to this unpleasant subject which has been in the news again.

A paedophile couple who filmed themselves sexually abusing children, including a baby, have been jailed for a total of 21 years.

Mark Gable, 33, was arrested after police officers found a video of him sexually assaulting a baby during a search of his home.

A number of other images and videos were discovered which also showed Gable, sexually assaulting children.

Through their investigations, the police discovered that Gable’s girlfriend, Jessica Fry, had filmed the initial video as well as a number of the other images and videos.

There is tragically a trade in the sharing and publication of images and videos showing children being abused. No doubt money as well as the sexual interest in children are motivators.

Understandably all right minded people are appalled by such behaviour, but there is a general lack of awareness as to the law and how it can easily be broken.

BBC Radio 4 recently broadcast “The Boy in the Video”, produced and presented by Lucy Proctor.

The story starts with an everyday event - a WhatsApp message to a group set up by mums at the school gates to discuss missing jumpers and school trips.

But this message contains a video of a little boy being sexually abused. And one of the group members happens to be a BBC radio producer.

So begins an investigation into the dark world of child sexual exploitation as Lucy tries to find out what happened to the boy. Has he been rescued? Is his abuser in jail?

Along the way Lucy meets the police trying to combat the online proliferation of images and videos of children being abused - millions are in circulation, shared on social media platforms as if they are funny cat memes. She asks what we should do about the 450 men arrested every month for viewing and sharing this material? At the moment, end-to-end encryption means WhatsApp is a safe haven for offenders - but are the tech firms doing enough?

In the programme Alan Collins – partner at Hugh James explains that there is a lack of understanding, and people can easily not appreciate that “private” images may not remain that way.

It should also be stressed that “online” abuse is not victim free. We have suggested that the law needs to be beefed-up to reflect the reality that someone at home viewing a child being abused is just as guilty as the person in the room committing the physical aspect of the abuse.

In a recent podcast we discussed the Jeffrey Epstein case and in particular, how in our experience of representing survivors we find time and time again, how child sex abusers groomed not just their victims but those around them.

It has been suggested in the media recently that Prince Andrew was used by Epstein as “bait”. We have no knowledge either way as to whether this is right or wrong, but it’s interesting that the term was used, because it dovetails with our experience.

Survivors and those close to the abuser frequently complain of being manipulated. Grooming is common currency in Child Sexual Abuse cases with the abuser constructing what can only be described as a “relationship” in order to create the opportunity to sexually abuse the victim. The trust of those in the vicinity is also sought to gain access, and to inhibit the victim from complaining.

The manipulation does not stop when the sexual abuse ends. Survivors often recount how it continues to prevent them reporting. The abuser is often in a position of power or has some kind of control over their victim for example teacher and pupil, priest and worshipper etc.

The manipulation can continue post reporting of the sexual abuse to the authorities. The abuser may deny the allegations, and make counter-allegations designed to discredit the survivor. The effect of this cannot be under-estimated.

It is interesting that the Harvey Weinstein case, and the reports that there may be an out-of-court settlement, has given rise to claims that his alleged victims are being manipulated. This gives an insight as to the powerful dynamics at play when there are legal proceedings underway and also, when there is the prospect of a settlement. For many a survivor, bringing a civil claim for compensation is empowering and cathartic, but we need to alive to the fact that for some when a defendant makes an offer to settle it can be seen as another attempt to control. Survivors understandably can be very sensitive to any suggestion or attempt to control them. For our part in representing them we make the point that they are in control of their situation and that nobody is going to order them to do anything against their will.

It is absolutely vital in our experience for survivors to be represented by experienced and specialist lawyers when bringing a civil claim against their abuser or those responsible for the sexual abuse suffered.

The answer as far as we are concerned is No!

The reason why this question features in our latest podcast is because it was said at the recent IICSA hearing into accountability and reparation.

IICSA was and is looking further into redress for child sexual abuse (CSA) survivors.

Evidence has been given that suggests the existing justice systems are not working effectively for survivors. Many are unable to claim compensation, and where it cannot be awarded, often is not.

There are powerful arguments to say that much needs to change, but it is not clear how and whether the lot of survivors can be improved.

The civil justice system has come under scrutiny and that will be the subject of a further podcast, but for the moment let’s look at what happens when a survivor approaches us for the first time.

We try to provide a holistic approach in the sense that we point out that the survivor is in charge of the discussion, and no one is ever going to make them do anything that they do not want to do. We recognise that survivors in other settings, perhaps, feel compelled or obliged to do as they asked. We try to engineer a sense that they feel no compulsion to do anything, and to do nothing is fine.

We consider it vital to allow the survivor to tell us whatever they feel necessary. Yes we may ask questions to clarify or to understand what we might have heard.

If asked we can advise as to the legal options that might be available. We might signpost the survivor to the police, or elsewhere for services that they might need.

This is the opposite of telling survivors what to do. It is not our place to tell them. It is our place to advise and inform, and to represent if that is what they want.

We have to be frank when advising. If legal action is appropriate we have to advise that and explain what is involved. If legal action is not possible we have to explain that too. We have to do this so that survivors can make informed decisions and it’s about empowering and not telling them what to do. That is an important and fundamental difference.

It is clear from the IICSA hearings that there is a major information deficit for survivors who by and large are not being informed of their civil rights by those who are in a position to do so. Survivors are too often dependent on those who ought to know but do not, and that just exacerbates the problem. This is a cause that we are trying to pursue with parliamentarians who we consider have a particular responsibility to make sure that the laws that have been passed to assist with redress are observed and enforced.

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