A question of consent

The premise of this column is that I preview the upcoming business in the States of Deliberation.

I was genuinely struggling to think what I might write this month with an order paper without anything of substance for debate. Nothing. Rien. Nada. The government-of-action appeared to be taking a month off from governing. I would either have to fail to meet my commitment to the editor to file a column – and disappoint those, particularly in government, who so enjoy my musings – or stretch my brief to write about something else. But Deputies Meerveld and Dyke have ridden to the rescue with a very unusual amendment to a very ordinary piece of legislation.

The story begins way back in 2003 in the UK with the passage into law of the Sexual Offences Act for England & Wales. This became the basis of a 2011 States Report by the former Home Department to modernise our sexual offences legislation. This policy decision then ground through our system none too quickly with the last Committee for Home Affairs finally bringing it back as legislation.

During the couple of years it was being drafted, I engaged with the committee to express my concerns that by copying the English act, when a victim was too intoxicated to give consent, it copied the same distinction between whether they had got that way of their own free will or at the hand of another. Either way, the victim is not able to consent but it’s what happens next that is important. While in all cases the defendant is innocent until proven guilty, if the prosecution have proved it was involuntary intoxication, then the defendant has to produce evidence to challenge or rebut the presumption that no consent was in fact given – but if the intoxication was voluntary, then the prosecution have to prove that the victim was incapable of consent, did not consent and it was not reasonable for the defendant to believe the complainant consented.

While it’s the prosecution’s job, not the victim’s, to prove this, it won’t feel that way to the victim – the message from having such a distinction in law is ‘because you chose to drink too much, we cannot presume you did not consent’. Classic victim blaming. Not very different to saying, ‘your clothing was so provocative, you must have wanted it’. And this feeling that society and the criminal justice system is telling victims ‘you are at fault for contributing to the situation you found yourself in’ is just one of the very many reasons so few victims (estimated to be only 17%) ever come forward to lodge complaints.

Having been unable to convince the then Home Affairs committee to share these concerns, the only avenue left was to seek to amend the legislation – itself an unusual procedure. A lengthy and detailed but high-quality debate took place – albeit remotely during the first wave of Covid – resulting in the amendment succeeding 32 votes to five, with two abstentions. The legislation then went off to the Ministry of Justice in London to review our compliance with the UK’s international obligations, particularly with human rights, and having satisfied themselves that defendants’ rights to a fair trial were not compromised, the law was given Her Majesty’s Royal Assent, was placed on our statute book and good to go, just as soon as the new Committee for Home Affairs lodged a commencement ordinance for approval by the States to trigger a start date, 1 March.

Ten days ago (by his own account) Deputy Meerveld, having abstained first time around, decided he didn’t like this part of the legislation. He would have liked to have taken it out completely but would have been advised that was not possible by means of an amendment to a commencement ordinance, so instead he’s come up with a ruse for amending the ordinance to introduce an indefinite delay to this one sub-section. It’s an unprecedented move to my knowledge.

The debate will, I suspect, revolve all around the risk of false accusations, as it did, to some extent, in the first debate. False accusations, of course, exist already and there is no evidence to support an argument that they will suddenly increase as a result of the change in law. Generally, such claims are exposed quite quickly, without anything entering the public domain but, of course, if they do, they can cause irreparable damage to the reputation of the falsely accused. But these events are rare, which is why they are often high profile when they do happen. And there is adequate law that can be thrown at the person who makes the false accusation. We must have confidence in law enforcement and our criminal justice system to seek out and deal with such rare cases.

In the meantime, we shouldn’t forget that the most common experience for 98.7% of the far more numerous victims of sexual crime (20% of women and 4% of men over 16) is not to see any justice at all. Our duty to them has to be to try and get that staggeringly high failure rate down, including by getting more to report their experience. That includes eliminating inherent victim blaming from the law.

The question now is, ‘what will the States do?’ Will it flip-flop on the decision of its predecessor as it has done on other issues? Will the self-proclaimed States-of-action be happy to defer another decision? Will the 17 members who voted for it in June 2020 and were then re-elected hold their line or change their minds? That includes Deputy Prow, the current president of Home Affairs. How will the 19 members elected for the first time in October 2020 vote?

This situation will be most unwelcome for Home Affairs. They seem to be committed to improving the lot for the victims of sexual crime and they won’t want that commitment tested by this amendment. They also have a lot on their committee’s plate with the ongoing Justice Review, so they won’t have the resources or want the distraction of having to deal with a piece of sexual offences legislation which has been dragging on since 2011 and which they thought had been put to bed on their watch.

And they know that if the amendment succeeds, the issue just won’t go away and it will keep being brought back to plague them, because the worst of all worlds will have happened – a piece of zombie legislation approved by the States that the States then refuses to commence.

It’s going to be a fascinating meeting to watch after all.