Nothing to say

Nothing to Say, by Gaping Void

Well, it’s all been a l’il bit tumbleweed on here. Quite simply, I’ve nothing to say. Well, nothing to say about the things I usually write about on here anyway, without running the risk of being repetitive.

Sure, the way the media reports legal stuff is still annoying and frequently wrong, but there are only so many times you can point that out. And sure, sexual offences are still a huge issue, but frankly, the layer of brick dust on my forehead from banging my head against a wall was starting to look unattractive. And yes, criminal trials are still a necessary battleground with barristers saying necessarily unpleasant things to witnesses in order to test the evidence, but again, how many times can one point out without getting a little hoarse?

So, I have shut up, on those issues, and on this blog – rest assured, I’m still a bit mouthy elsewhere. I’d like to thank everyone who took the time to read what I did write, and for tweeting it, facebooking it and generally sharing it – seriously, thanks tons. Lots of lovely stuff came from you doing that, and I really am very grateful. I have left the site up because I am still pretty proud of the fact it was shortlisted for the Orwell Prize, which was awesome, and again, thanks to everyone who read it and shared it, which led to that. But for now at least, I’ve nowt to say. Catch you elsewhere, Wiggy.

Image: From Gaping Void, used under this license.

RIP Savita

Yesterday, the news broke of the death of 31 year old Savita Halappanavar, who died of septicaemia in hospital in Galway on 28th October after doctors apparently refused to remove the foetus she was in the process of miscarrying because it still had a heartbeat; termination of pregnancy being illegal in Ireland unless the life of the mother is at real and substantial risk.

Savita, a dentist, was 17 weeks pregnant. She went to hospital on 21st October with back pain. On examination, Savita’s cervix was fully dilated and amniotic fluid was leaking. Miscarriage was inevitable.

In pain, she requested removal of the foetus. Detecting a foetal heartbeat, doctors refused. For three days she repeated her request. According to her husband, the couple were told that ‘this is a Catholic country’ and that while a heartbeat was present, doctors could not act.

The foetus was removed on 24th October, once a heartbeat could no longer be detected. At that point, Savita had collapsed the night before, and had started antibiotics.

Last night over 2000 people attended a vigil at the Dail for Savita. A smaller vigil was held at the Irish Embassy in London. I attended the London vigil, and spoke to several Irish people about what the law means in effect over there.

They spoke of friends having to travel to England alone for abortions, unable to fund a companion to go with them. They also spoke of women who, having had medical assessments at 20+ weeks which determined the foetus wasn’t viable or had a medical condition which the women decided they and their family wouldn’t be able to cope with, having to quickly organise travel to England, hoping that their dates were correct and they would arrive within the window which exists here, all the while coping with the grief such news entails.

They told of women with cancer, who would be told on the news they were pregnant that treatment would halt to save the foetus, their life not being in danger at that precise time, regardless that it may well be in the future due to delayed treatment.

The reality of the law in Ireland is that women are treated as irrelevant vessels, regardless of the damage carrying their cargo may do to them. It is trite to point to pro-life laws and ask exactly whose life they are pro, but that is sadly the situation.

Whilst before Savita the pro-life lobby may have been able to claim that the pro-choice lobby was being dramatic, in that a woman could clearly be saved under the law if there was a real and substantial risk to life, Savita’s death has demonstrated that it isn’t that simple.

Savita’s doctors may have been negligent – it may transpire that they misread the legal and/or medical situation and failure to act appropriately caused her death.

They may well have been acting within the strict letter of the law – that while her initial infection caused her pain and suffering, it was not a real and substantial risk to her life until it turned into sepsis, at which point it was too late, and there were no indicators while the foetus had a heartbeat that her infection would turn into life threatening, and ultimately fatal, sepsis.

However, just pausing for a moment, just look at that scenario. She was miscarrying – that was inevitable given her presentation. The foetus was not going to survive. But while that foetus had a heartbeat, Savita was expected to endure pain and suffering. While many women go through incredible medical issues while pregnant, they cling to the fact that a baby at the end will make it worthwhile. There was not going to be a baby at the end for Savita. The law expects her to endure that suffering for nothing.

The law relating to the termination of a pregnancy in Ireland currently states that all termination is illegal, unless the life of the mother is in real and substantial danger.

The Eighth Amendment to the constitution was passed in 1983, which states that from conception a foetus has a right to life. In 1992, the then Attorney General Harry Whelehan, attempted to use the Eighth Amendment to prevent a suicidal 14yo rape victim from travelling to England to seek an abortion. He sought, and was granted, an injunction. On appeal, the Supreme Court held that a woman was entitled to an abortion if there was a real and substantial threat to her life. The case, known as X, led to three referenda on November 25th 1992, which in turn led to the Thirteenth Amendment – that women could travel out of the State to seek abortion; and the Fourteenth Amendment, which meant information about abortion being available outside of the State could be distributed. The Twelth Amendment, that the prohibition on abortion should include suicidal women, was rejected. That Amendment arose again in 2002, and was again rejected on referendum.

While the Thirteenth and Fourteenth Amendments are relatively clear, the Eighth Amendment causes difficulties surrounding what a real and substantial risk to life is. In a fluid medical scenario, determining the point at which the risk exists brings with it the very clear danger that the mother’s health has deteriorated past the point at which her life may be saved.

Successive governments have refused to consider legislation to clarify the Eighth Amendment. That lack of clarification has been held to violate the European Convention on Human Rights. In a case known as A,B and C v Ireland, the court held in 2010 that while there is no right to abortion under the convention, a woman should be able to easily determine whether she qualifies for an abortion under Irish law. An expert group has been appointed to report on the issues raised in the case later this year.

While there remains a lack of clarity as to whether the current legal regime in Ireland is responsible for Savita’s death, to some extent that lack of clarity is irrelevant. Savita’s legacy is that she turned the world gaze to Ireland and how she treats her pregnant women – that treatment requires no clarity. It’s now for us to ensure the glance wasn’t fleeting, and that real change occurs.

*Please note, there is a second vigil/protest at the Irish Embassy in London on Saturday, 17th November, from 4pm. Details from Abortion Rights  here.

 

 

 

 

 

 

Little Lolita

A schoolgirl flew back to England today, to be returned to the care of her family. She, aged 15, disappeared from home a little over a week ago.  She was found on Friday, in France, in the company of her male maths teacher Jeremy Forrest. He has been arrested for child abduction under the auspices of a European Arrest Warrant, and, having indicated he won’t fight extradition,  is due to be returned to England for questioning.

The press coverage and social media commentary has been, to some degree, stomach churning. One tweet, summarising a seemingly popular opinion, said:

‘[That schoolgirl] should write a book: ‘My Teenage Years’. Or, ‘How I Cost My Maths Teacher His Job’.

This level of victim blaming is not, sadly, unusual in crimes relating to women and girls. Victim blaming is even more so prevalent when scenarios would appear to involve sex, as this one, prima facie, does.

This is rape culture. Rape culture is a ‘concept used to describe a culture in which rape and sexual violence are common and in which prevalent attitudes, norms, practices, and media normalize, excuse, tolerate, or even condone sexual violence.

Examples of behaviors commonly associated with rape culture include victim blaming, sexual objectification, and trivializing rape’ (Wikipedia).

The problem with rape culture is it allows certain people, and indeed institutions, to turn a blind eye. It is rape culture which lead social services in Rochdale to write off girls who were being raped, sold and sexually exploited, as ‘prostitutes’.

It is rape culture which means that staff did not bother looking why, or how, or take measures to stop these girls being ‘prostitutes’. It is rape culture which allows the ‘wrong’ girls – because it is never the ‘nice’ girls – to be written off as ‘prostitutes’ and allows us to fail to safeguard them – fail to ask the questions which should have been asked, fail to acknowledge we owe them a duty, and quite simply, abjectively, all round, totally, fail them.

Preventing paedophile sex rings like those in Rochdale starts with our attitudes to schoolgirls like this one. No-one, save she and Forrest, knows the nature and extent of their relationship. But what we do know, what the law tells us – and I hope and pray our internal morality does too – is that only one of them owed a duty to the other – a duty of care, a duty to safeguard, a duty not to enter into a relationship outside that of student and teacher. And that wasn’t the schoolgirl.

And that was summer

I’ve neglected this blog for a wee while – it was summer – we moved, the little one was off school, the big one had stuff for me to sort, and to be honest, there was nothing I wanted to write about.

Bit odd really, for someone who writes about rape to suggest, in what can only be called a summer of stupid when it comes to the issue, that they had nothing to say. But I didn’t. It had all been said before. If summer taught me one thing, it was that we are not as evolved on the issue as certainly I had believed, and that it would appear that some folk don’t as yet understand the very basics.

Anyway, the brain space I reserved for the topic I used to read ‘Hitting an all time low‘ by Sharon Taylor (@sharongooner) rather than preach to the choir of stupid that no still really does mean no.

Sharon was drug raped. Although for many years she had partial flashbacks, she didn’t fully comprehend what had happened to her until she saw her rapist by chance in a pub.

Her book describes her descent into Post-Traumatic Stress Disorder, her struggle to receive appropriate help from mental health services, or even basic compassion from some health professionals. How the police, hopeless at dealing with her rape, were the organisation that tried to help her during her suicide attempts.

If such a book can have a happy ending, it is that Sharon eventually, after a struggle she frankly shouldn’t have to have endured, found the help she needed, and started on the road to recovery.

Anyone who in any context works with rape or mental health – police, health professionals, anyone in the CJS, should read this book. Not to feel shame for the way colleagues treated this woman, but to understand the trauma survivors can go through. Anyone outside of those professions should read it to understand what it is those 1 in 4 women who this happens to have to face.

It is a hard read, a gritty, visceral, hits you right in the gut read, but it is very much worth it. It is only available as an e-book, and is £1.53 at the mo, which supports the charity MIND.

Canterbury Tales: What an utter Kent

Despite the masthead proudly flying the flag, this weekend I had cause to check that Kent hadn’t broken off from the mainland and made a dash for Calais. Once satisfied, I then checked it hadn’t had a revolution and declared itself independent of the legal jurisdiction of England and Wales.

My consternation was brought about by this headline:

 

An accusation of stranger sex? What on earth? Convinced that Kent was both still attached and indeed still within the legal jurisdiction of England and Wales, I pondered as to whether there was a new sexual offence that I hadn’t heard of. Had the nuns from school finally succeeded in having moral turpitude made into a criminal offence, and now dropping your pants with someone whose surname you were unsure off was not only a mere mortal sin, it was also an offence?

Um, no. It was all rather more serious than that.

 

 

Despite the headline, and the above being the lead paragraph to the story, what Hitchin was accused of was not ‘stranger sex’; it was rape. And at the time this story was published, he wasn’t merely accused – a jury had found him guilty.

In this grubby, sordid, 1970’s redtop-esque version of reporting a rape trial, it manages in 555 words to mention the word rape once and then not even in the main text.  In a quote, it says:

At this stage, she wasn’t an ‘alleged’ anything. The jury, (who, it was helpfully reported, took 6hours 35 minutes to reach a verdict), decided that Hitchins was guilty of rape. There is no ‘alleged’ about it – she is a rape victim, and she was raped by Hitchins, an offence for which he is currently remanded in custody awaiting sentence.

The whole tenor of the piece is far removed from #IBelieveHer, using exclamation mark to illustrate the point that the victim had had consensual sex with her partner earlier in the evening (which is of course irrelevant), and of course mentioning that she was drunk at the time of the offence (which again, is irrelevant).

I found the piece grossly offensive, and mere steps away from pointing a finger at the victim and saying ‘Oh come on love, rape? Do me a favour’

I have written many times before on how rape cases are reported in the press, and the impact that can have both on public perceptions of the offence, and on other victims coming forward and reporting the offences committed against them to the police.

Imagine being her and reading that. Imagine being her friends and family reading that. And imagine being Hitchins friends and family reading that. Despite the conviction, the fingers of blame seeming point squarely her way. As a victim of rape surely she is entitled to some respect; respect which is sadly lacking in that piece.

Whilst it has been some time since a piece as bad as this has appeared in the national press, the fact that this mindset still exists in some publishing quarters, and the fact that the national press still have some way to go generally when reporting rape cases, demonstrates to me at least that perhaps we have reached a point in time where we need a set of guidelines as to how this offence is reported, starting with the basics of where the finger of blame should be pointed in such pieces.

We have spent the last 10 years making substantial improvements across the criminal justice system, and educating those within it how best to make the process cause the victim as little further pain as possible.  In the age of Leveson, now is the time to spread that education further.

___

Should you want to read the report for yourself, it is here.

***Update: The original story has now been substantially rewritten, and can be found at the link above.

 

 

 

 

And I am not making this up…

Louise Mensch took to Twitter this morning, proclaiming that the Human Rights Act 1998 is loathed by the public, is drafted too broadly, and is a terrible law:

Is it a badly drafted law? In very simple terms (and it is a very simple Act), all the HRA says is that we have to take notice of the European Convention on Human Rights when interpreting law and interpret it in line with the Convention. If that cannot be done, the judge must issue a declaration of incompatibility, which is to say, asks Parliament to have a re-look at it. By my maths, there have been about 20 declarations which have been upheld and lead to a change since the Act came into force. The Act also states that public bodies cannot act in a way incompatible with the Convention.

The Convention was drafted after World War II to ensure the horrors of that era were not repeated. The Convention itself is incredibly simple to read, and in terms of drafting it, er… well, we are largely responsible for that, via Sir David Maxwell Fyfe. But you know, history, who needs to know that?

Do the public loathe it? What is to loathe? The rights protected are:

The right to life -which talks not only about capital punishment, but also about the right to defend yourself using necessary force;

The prohibition of torture and inhuman and degrading treatment;

The prohibition of slavery and forced labour;

The right to liberty and security, with limits placed on the infringement of the right to liberty where the detention is lawful;

The right to a fair trial – which every advocate I know has used at least once;

No punishment without law, which means that you cannot be punished for an act which was lawful at the time of commission, nor can you be sentenced greater than the sentence which would have existed at the time of the act should it have been unlawful;

The right to respect for your private and family life. Some of the first cases using the HRA were under this provision;

The right to freedom of thought, conscience and religion – I may not believe in sky fairies, but I will defend your right to;

The right to freedom of expression – which albeit qualified, means I can write stuff like this;

The right to freedom of assembly and association;

The right to marry – which sadly has so far been read to mean opposite sex marriage, although the Convention as drafted is not explicit;

The right to an effective remedy – that is, when rights under the Convention are breached, there must be a remedy before a national court;

The prohibition on discrimination;

There are a few other articles – for instance, allowing states to limit the political activities of ‘aliens’ (that’s foreigners, not little green men), and allowing states to derogate from the Convention in times of war or public emergency.

What the public seem the loathe is the Daily Mail/Conservative Party version of the Human Rights Act – that which tells us that owning a cat allows an illegal immigrant to stay here. However, as has been demonstrated, that version of the HRA just simply isn’t true.

Is it a terrible law? I fail to see how it is, although I will accept it seems to be a law which annoys governments – especially this one. To me that makes it a good law, one which is doing the job it was intended to do. It is a law which requires fairness, basic standards and refuses to allow public bodies to over-step the mark. For the life of me, I can’t think why they don’t like it.

 

 

The Orwell Prize Shortlisting

Amid my hangover (yes, it is 9pm, and yes, it is still lingering) I am grinning broadly and sqeeeeeing loudly, and saying in a very affected tone that I am a writer. Last night the shortlists for the Orwell Prize were announced and oh my golly aunt they included me – hence the new badge over on the right.

The competition is stiff – I have had a nosy. They are:

Baroque in Hackney

Benefit Scrounging Scum

Alex Massie

Rebecca Omonira-Oyekanmi

Rangers Tax Case

Lisa Ansell (who happens to be a mate of mine)

Massive thanks to the Prize, and the judges, Hopi Sen and Suzanne Moore. More details of the Prize, and the shortlists for the book and journalism prize, are here.

Good luck to all, especially Lisa – if I don’t win, I sincerely want her to :D

The Award Ceremony thingy is open, so if you fancy coming, details are here:

New media, new law? No thanks.

On Friday afternoon, Sheffield United footballer Ched Evans was sentenced to five years for raping a 19 year old woman.

Almost immediately, the #ChedEvans hashtag appeared on Twitter, and later, #JusticeForChed. Some tweets displayed confusion, questioning why one defendant was found guilty, and one not. Others displayed varying levels of victim blaming; some could only be described as vile.

This continued all weekend. Then, on Sunday, someone named the woman who was apparently the complainant. The insults became more personal, and the levels of abuse directed at the alleged victim increased throughout the day.

Rape survivors fall into a special category of victims of crime, entitled to life long anonymity, applying to the survivor’s name, address, image and any other matter, if the publication could lead to the public identifying the person. A breach occurs if a person causes identifying matter to be published in England and Wales in a written publication available to the public. Whilst this legislation has not been tested when applied to Twitter, courts have found newspaper websites guilty of contempt of court, which, it can be argued, is analogous to this situation.

Several people contacted North Wales police; a spokeswoman for whom said they were collating all the relevant information.

The Director of End Violence Against Women, Holly Dustin, issued a statement saying:

“It has long been law that rape complainants are protected by lifetime anonymity and those who have named her have been reported to the police for committing a criminal offence. This raises serious questions about the adequacy of the criminal justice system to deal with offences that occur online and we are calling for an urgent review of laws and practices.”

Does it? Or actually does this statement simply display a misunderstanding of how law works?

Law isn’t a shield preventing a bad thing happening – it cannot stop people behaving in a certain way; it can only simply prescribe a punishment or remedy should people behave in a certain way. Our modern digital world enables us to see more easily behaviour we knew existed in any event. We have already criminalised that behaviour because we knew it existed.

In addition, the provision for life-long anonymity isn’t the only law which would apply to those tweets – there is the possibility of offences having been committed under section 127 Communications Act 2003, if the tweets can be deemed to be grossly offensive or of an indecent, obscene or menacing character, and under section 4A Public Order Act 1986 if the tweets can be deemed to contain threatening, abusive or insulting words.

While I have every sympathy for the complainant in this case, we really must stop and think about calling for new laws every time something we don’t like happens – especially when the call goes out before the criminal justice system has even had the opportunity to show what it can do in this situation. It really isn’t helpful, and it lessens the remainder of the message.

*** It has been pointed out to me by @Pam_nAshes that the name was first mentioned on Twitter on Friday.

 

Miscommunication?

#FreeTheBexleyOne the hashtag goes.  ‘Man faces jail for swearing on Twitter’ the Twitterati say.  ‘Stop the assault on freedom of speech’ they implore.

Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?

John Graham Kerlan was found guilty on Friday 13th April of an offence contrary to s127 Communications Act 2003, which reads:

(1) A person is guilty of an offence if he—

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

I have asked the CPS for the charge sheet, which has been so far unforthcoming – should it arrive and render the rest of this post incorrect, I will of course post corrections.

The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:

Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.

The second said:

‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’

Globally, the legal test for whether a message is grossly offensive, or of an indecent, obscene or menacing character is the ‘reasonable man’ test – that is, would a reasonable man, seeing that message, consider it grossly offensive, or of an indecent, obscene or menacing character. In order to determine this, the judge puts himself in the place of a reasonable man and asks himself that question.

So, assuming we are reasonable people we can ask ourselves that question. Looking at those two tweets, would we say that they were:

Grossly offensive?

Indecent in character?

Obscene in character?

Menacing in character?

Using my internal moral compass, I say yes, no, no, yes.  The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient.  Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.

Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.

Are they indecent, or obscene? I’d say not. But the law doesn’t require all points to be made out – the law requires the messages to be either grossly offensive, or indecent in character, or obscene in character, or menacing in character. That a message is more than one is a bonus for the prosecution frankly.

Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:

‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’

Lord Bingham, DPP v Collins (here).

In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.

 

 

The standard police defence

Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinburg? I have a greater responsibility than you could possibly fathom. You weep for Santiago, and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know. That Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives.

You don’t want the truth because deep down in places you don’t talk about at parties, you want me on that wall, you need me on that wall. We use words like honor, code, loyalty.

We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it. I would rather you just said thank you, and went on your way, Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don’t give a damn what you think you are entitled to.

Colonel Jessop, A Few Good Men. You hear something similar from an alarming number of police officers should you have the temerity to question shootings, racism, deaths in custody. The police service has to start to recognise that while we are grateful for the protection they offer, that protection does not mean we are not allowed to question when they act beyond the bounds of what they are charged to do.

The police service wants us to respect the difficult job they do. While the Jessop attitude pervades, that respect is a long way off.