Last week, my friend and colleague David Boyle published an article putting forward a view about protecting the older generation. It has become one of our most widely read blogs and generated much discussion – some support and quite a bit of anger.
I have been wondering whether, in view of some of the highly emotional responses generated, it’s best to let sleeping dogs lie. But then again, if we cannot explore and discuss difficult subjects and the controversial alternative views that surround them, then what’s the point of existing.
So this is intended to be a follow up article which will hopefully push the discussion forward.
It’s a shame that David’s article, motivated by compassion for individuals now in their 80s and 90s, came across to many as a lack of compassion for victims of previous abuse.
When I first read the article, I was not convinced by David’s argument for a Statute of Limitations. I didn’t feel that the argument stood up as expressed and, like many readers, it came across to me as giving past offenders a free pass.
Then I thought about it a bit more.
I asked myself: if Statutes of Limitation indeed do give offenders a free pass, then why is their use so firmly established in common law across a number of areas? Surely nobody want to let offenders get away with their actions no matter what the offence. So why do these limitations even exist?
Wikipedia tells me that Halsbury’s Laws of England (4th Edition) puts forward three reasons for their enactment:
- A plaintiff with a valid cause of action should pursue it with reasonable diligence.
- By the time a stale claim is litigated, a defendant might have lost evidence necessary to disprove the claim.
- Litigation of a long-dormant claim may result in more cruelty than justice.
Statues of Limitations are applied differently to different offenses, differently in different countries and, in the USA, differently across the various states. Clearly there is no consensus around how and when they should be applied.
I will let readers make their own interpretation of whether, and if so how, the principles set out above by Halsbury should be applied in cases of sexual assault (that involve boys as well as girls and women) and to the different levels of sexual assault.
But whatever our individual interpretation, we should bear in mind that it is just that. And others will violently disagree.
Neither was David’s suggestion particularly out of the norm. Statutes of Limitations on sexual offences are already in place across most of Europe and in the US. The arguments put forward on all sides have been well summarised in an article in The Economist.
And the more I read about this, the more it becomes clear to me that the complexity of the issue is much greater than I thought at the time of my first reaction to David’s article. I, for one, certainly don’t have an easy answer.
But the problem may lie elsewhere
But for me, the main problem lies elsewhere.
We seem to have entered an age of trial by newspapers or trial by social media. When people are accused of offences, their reputation is tarnished. Some, maybe quite a lot, of it sticks even if they are subsequently found to be not guilty. In addition, public accusations that later prove either unfounded or unprovable open the plaintiffs to charges of slander or libel for which they may pay dearly. Everybody loses.
These issues were recently highlighted in the latest judgement in favour of Sir Cliff Richard against the BBC. The media have gone into a collective frenzy that this might restrict their freedom to report what is in the public interest. I disagree, as I made clear in a letter to the Financial Times.
In my view, individuals should report alleged offenses only to the police or other relevant authorities and the identity of both the accuser and the accused should be kept confidential (not easy, I grant you) at least until the time that there is sufficient evidence to file charges.
This avoids the situation where both the accuser and the accused get publicly dragged through the mud as in the unedifying spectacle we are currently all witnessing in the US around the confirmation on Judge Brett Kavanaugh.
Both the judge and his accuser have been subjected to a terrible ordeal along party political lines – and, although different individuals seem to believe either one or the other without question, we are still none the wiser as to what actually happened. The fact that the FBI have been given only one week to investigate is, in my opinion, shameful.
Social mores change
When she was 14 years old (many decades ago), a dear friend of mine was the subject of sexual advances by an adult ‘friend of the family’. She immediately rushed to her mother and told her what happened. Her mother’s response was: “It’s not a big deal. You just need to keep quiet about it because we don’t want any scandals in the family.”
Such an attitude was not uncommon in the past. We find it shocking today – though I do wonder how much of that same attitude persists in different communities. The power of the #MeToo movement has been to try to change such attitudes and ease the path to reporting of such offenses.
I suspect that we need to do much more to make sure that male and female victims find it easier to report offenses quickly when evidence is more likely to be available and before people’s memories have faded or, after many years, when crucial witnesses may have passed away.
We also need to do a lot more to make investigation of such offences more humane.
A 14-year-old gay boy I know was recently sexually assaulted by his hairdresser. It was all reported to the police who then asked whether he wanted to press charges and explained what that would involve.
One policewoman told the boy’s mother: “As a policewoman, I have to encourage you to press charges. As a mother, I have to tell you that I don’t know if I would put my son through the six months of hardship, interrogation and counter-interrogation.” And this when the offence was reported within three days.
We clearly have a long way yet to go to find ways of tackling these issues well, fairly and with justice. There are no easy or obvious answers however much we individually believe that we have them.
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