HJ Talks About Abuse

The annual abuse conference run by Hugh James and the NSPCC took place on 13 February 2020 in our office in Two Central Square, Cardiff.

The abuse conference is an opportunity to bring together a whole range of service providers who assist survivors of sexual abuse so thoughts, expertise and opinions can be shared to make the experience for survivors better.

This year focussed on a range of issues, from the definition of “Positions of Trust” in the Sexual Offences Act 2003 to support services for survivors who have found themselves in trouble with the law, but one important issue which came starkly into focus were opportunities to stop child abuse before it had occurred.

Whilst this might seem an incalculably difficult task, insights provided by Professor Bisson into the impact of Adverse Childhood Experiences in childhood on an adult in later life demonstrated that focus towards healing those who have had these experiences could assist in curving trends in the future.

Sam Barker of Hugh James spoke about the issue of consent in civil proceedings for compensation arising out of childhood sexual abuse. Whilst this seemed a nonsense to many in the audience, it is an unfortunate reality that consent is more often being used in a case where an abuser has been convicted of a sexual offence, but a lack of consent is not an element of that offending.

In today’s podcast, Alan and Sam discuss these issues further and welcome any thoughts from listeners.

If you enjoyed listening to this episode of the HJ Talks About Abuse podcast, you can listen to our other episodes on your favourite streaming platforms with the buttons above.

All of our episodes are also available to listen to on our website here. To find out more about what Alan and Sam do, visit the abuse page.

The Independent Inquiry into Child Sexual Abuse is commencing its investigation into Child Protection in Religious Organisations and Settings on 16 March 2020.

This is a wide ranging investigation into child protection practices in religious organisations which have more than a trivial presence in England and Wales.

The hearings will run for two weeks and will conduct an investigation into the adequacy of child protection practices in, for example, the Jehovah’s Witnesses, the Jewish orthodox community, Scientology and Paganism. 

Hugh James represents an advocacy group of current and former members of the Jehovah’s Witnesses called the EX-JW Advocates Opposing Crimes Against Children (the “Group”).  To explain, the Group:

1. Is made up of survivors of childhood sexual abuse within the Jehovah’s Witnesses UK, former elders of Jehovah’s Witnesses UK with deep knowledge of practices adopted by bodies of elders at congregations across the UK and former member activists who assist survivors across the UK;
2. Certain members of the Group maintain a website and Facebook group with resources and immediate help for those who have been affected by Jehovah’s Witnesses UK and access to the site administrator who can speak with the member or ex-member in confidence;
3. Advocates for change within Jehovah’s Witnesses UK in respect of, amongst other things, the 2017 safeguarding policy, internal practices and procedures following the disclosure of child sexual abuse within a congregation, support to survivors of child sexual abuse within Jehovah’s Witnesses UK and understanding of child sexual abuse not as a ‘sin’ but a crime; and
4. Raises awareness in respect of Jehovah's Witnesses UK reluctance to co-operate with secular authorities in investigations and prosecutions members who have committed an act of child sexual abuse and the failure to bring those allegations to the attention of the police at first instance.

The Group is focussed on highlighting to the Inquiry the cultural issues within the Jehovah’s Witnesses which inhibits reporting of allegations of child sexual abuse to the police and stifles proper safeguarding at an institutional level.  The primary point of concern is the recent policy shift within the Jehovah’s Witnesses of deflecting safeguarding responsibility onto parents within the religion rather than the institution itself. 

Whilst it is of course a parent’s responsibility to care for their children, it is bad practice on an institutional level to take an “arm’s length” approach to safeguarding by passing total responsibility to parents.  This is particularly the case in inward facing and isolationist religions like the Jehovah’s Witnesses which restrict a child’s interaction with the outside world.

Other cultural issues which inhibit proper safeguarding include shunning, the two witness rule, scriptural investigations, a view of society’s laws as “Caesar’s laws” and reputational concerns.  These issues are not all specific to the Jehovah’s Witnesses and practice like shunning and the two witness rule is practiced in other religions, like certain sects of Jewish orthodoxy.

Overall, the Group advocates for mandatory reporting along with external regulation and training.  In the course of the investigations conducted by the Inquiry it has become very apparent that religious institutions are almost incapable of properly self-regulating and appropriately reporting allegations of child sexual abuse or individuals who pose a risk of harm to children to authorities.  The Jehovah’s Witnesses as an organisation has been exposed in the respect in a recent High Court decision called Lancashire County Council v E & F & Ors [2020] EWHC 182. The “choice” to report must be taken away from these organisations.   

Another issue of great concern which again is not specific to the Jehovah’s Witnesses is the lack of external oversight and input in regard to safeguarding training and it is clearly the case that if bad practice is the basis of training, it will create a systemic issue which is difficult to correct.  All religious organisations in the UK should be legally required to meet mandatory minimum standards but for those with charitable status there should be sanctions for failing to do so. 

The Inquiry will hopefully be able to recommend meaningful change but it has taken on a monumental task over a short period of time.

What has happened?

In all, at least 80 women had accused Harvey Weinstein of sexual misconduct stretching back decades, including actresses Gwyneth Paltrow and Uma Thurman. Accusations emerged in the media in October 2017 and Weinstein was charged in May 2018.

The allegations were at the centre of the #MeToo movement that prompted women to go public with misconduct allegations against powerful men.

On 24 February 2020, Weinstein was convicted in New York of a first-degree criminal sexual act and third-degree rape. A third-degree rape charge in New York is defined as "engaging in sexual intercourse with a person who is incapable of consent, or under age 17, or who has not given consent for a reason other than the inability to consent".

The sexual assault was against his former production assistant Mimi Haleyi in 2006, and the third-degree rape was against Jessica Mann, a former aspiring actress, in 2013. Weinstein was acquitted on three charges, including two counts of predatory sexual assault, which carried a potential life sentence and a count of first-degree rape of Jessica Mann.

What happens now?

On 11 March 2020 Weinstein will be sentenced and is facing at least 5 years in prison and up to 25 years over the guilty verdicts. Weinstein's lawyers have confirmed that they will be appealing the conviction. 

The following could be taken into account by the judge:

• No remorse or early guilty plea
• May be some consideration of his physical health issues

Will he succeed with any appeal? 

If as anticipated, Weinstein appeals, it could be in relation to what might be considered the controversial move by the prosecution to call evidence from “complainants” who were not complainants in the criminal proceedings: give a “dog a bad name”…?

The reaction

“The Silence Breakers” (the term used to refer to Weinstein’s accusers as a group) issued a statement written on behalf of 23 of Weinstein’s accusers: “It is disappointing that the outcome does not deliver the true, full justice… [but] Harvey Weinstein will not forever be known as a convicted serial predator". The case has also exposed “the difficulties women face coming forward to tell the truth about powerful abusers”.

The story is far from over

The following should be noted:

• Civil complaints are ongoing
• In December 2019 lawyers said they reached a tentative $25m/£19m deal with some accusers
• He is still to face charges in Los Angeles
• Further to an investigation into 8 allegations
• Charges filed in regards to two incidents in February 2013 – an anonymized female Italian actor on 18 February and a model named Lauren Young (who was a witness in the New York trial) on 19 February . The allegations Include rape, forcible oral copulation, sexual penetration by use of force and sexual battery by restraint, and all carrying a potential 28-year prison sentence.

In this podcast we discuss the topic of understanding trauma in the context of child sexual abuse (CSA) with Associate Professor of Criminology at The University of New South Wales, Michael Salter.

What do we mean by trauma?

“A mental condition caused by severe shock, especially when the harmful effects last for a long time and cause post-trauma symptoms which put stress on the body”.

We need to understand what trauma means in relation to CSA and the impact it has on the victims (survivors).

Research shows that CSA impacts on a victim’s health across the life course so that harmful impacts may manifest through increased common childhood health conditions, as well as general poorer self-rated health. Such conditions are typically not life threatening (but can be life shortening for example by smoking or taking “drugs”) but their long-term impact on physical and social development can be considerable. Thus, childhood ill health as well as anti-social behaviour could impact school attendance and consequently opportunities for educational attainment and better economic prospects throughout life etc.

We also know that CSA can adversely affect relationships, with “trust” issues being common place. This in turn can affect self-worth, mental health and physical health too.

CSA is now understood as a non-specific risk factor for a range of negative outcomes including PTSD and complex trauma, substance misuse, relationship issues, ill-health and encounters with the criminal justice system.

Some children who have been sexually abused have a pre-existing vulnerability, for example, they had been removed from their parents because of neglect, and placed in care.

The trauma can be further influenced by the sense of betrayal, the sense of being disbelieved and/or belittled and the lack of accountability. Further, if there is a lack of support following disclosure of the CSA, this too can compound the trauma that has been sustained or developed.

It is noteworthy that trauma was a key theme for the Royal Commission into Institutional Responses to Child Sexual Abuse. It recognised trauma as a major impact of CSA. We discuss with Dr Salter how this reflected in the Royal Commission’s work, for example, in “bearing witness” to what it was hearing from survivors. This was a feature interestingly of the United Kingdom Child Sex Abuse People's Tribunal (UKCSAPT). It is understood from trauma research that when victims are listened to and not just heard and their experiences considered, there can be a lessening of their symptoms.

We also discuss the understanding and promotion of a trauma informed culture which we believe engenders a holistic approach to survivor needs and issues.

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 21^st 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.