On the Oscar Pistorius trial

I expect that we will be hearing a lot about the Oscar Pistorius trial over the coming weeks, but I doubt I will read anything better than this, by Margie Orford - a perfect explanation of how doctrines like self defence require a context in which they make sense.

On sexual offences

The criminal law has always regulated sexual conduct in some way. However, it has not always been the same kinds of conduct that have been regulated, or regulated in the same way, in every society, for the same ends. Even the most cursory historical survey suggests that there has been considerable diversity in the kinds and manner of regulation of sexual conduct by the criminal law. This raises questions when we come to think about how sexual offences should be regulated by the criminal law. The tendency in modern thought is to see this as a distinct area of law, to look for an organizing principle or interest that should be protected, and then to try and systematically apply this to the identification and definition of possible offences.

One immediately striking feature of the law in the area of sexual offences is that the idea of a distinct body of sexual offences is relatively novel. By this I mean that the idea of sexual offences as a distinct sub-field of the criminal law, organised around a the protection of a distinct interest or wrong or according to a central governing principle, is a fairly recent development in the criminal law. The term sexual offences was not used in any legislation in the UK until 1956, and not in the US until the Model Penal Code in 1962, and, while occasionally used as a descriptive term in treatises before this date, it was little more than a usage of convenience, a way of describing a sub-category of offences against the person. It was not until the 1970s that the idea of sexual offences began to change from being a descriptive grouping to something that reflected an underlying organizing principle - that of the protection of sexual autonomy. 

This led to some notable instances of decriminalization of consensual sexual conduct seen as inconsistent with the idea of sexual autonomy - notably the decriminalisation of homosexual conduct - and this is usually seen as the major development in this area. However, arguably the larger impact has been in terms of increased criminalization, as the recognition of this distinct interest in sexual autonomy has led to the identification of a growing range of ways that this can be infringed or interfered with. Recent legislation on sexual offences in the UK has thus criminalized voyeurism, sexual grooming of children, 'sexting', sexual interference with a corpse, possession of extreme pornography, sex with trafficked women and many more. The point here is less that of whether or not these should be crimes (many of them already were, but were not seen as sexual crimes), than to ask the question of how it is that they come to be classified as sexual offences - and more broadly to ask whether the recognition of the category might not have an expansionary logic.

This suggests that before we can take the idea of a category of sexual offences for granted and think about how it is best organised or regulated, it is necessary first to ask about how it is that certain behaviors been grouped together under the rubric of sexual offences, about the kinds of connection or thematic unity that makes this grouping possible, and about the consequences for criminalization of thinking in categories of this kind.

On theft and rubbish

This story, reported in the Guardian this morning, raises some interesting issues. According to the report, three men were taking items from a rubbish bin behind a supermarket to a value of £33. They had climbed over a wall to get to the bins and were arrested as they left the area. Initially they were apparently to have been charged with burglary, but now are being charged under the Vagrancy Act 1824.

It is easy to see why burglary might not have been an attractive charge here. The offence of burglary is defined in the Theft Act 1968 s.9. Basically it requires entering any building or part of any building with intent to steal (or commit other crimes identified in s.9 subsection 2). Climbing a wall to an enclosed back yard would satisfy the first part of this definition; the problem would be with proving an intent to steal. There are two issues here. First, the prosecution would have to prove that property belonging to another had been taken (s.5), and then they would have to prove that it had been done with a dishonest intention (s.2).

The problem with the first of these is that it can clearly be argued that property which has been thrown out no longer belongs to anyone - or that the fact that it is in a bin is at least prima facie evidence of an intention to discard the property. So the prosecution would have to prove that the food was under the possession or control of the owner. If the food had been contained in streetside bins that were accessible to the public this would surely be impossible; if they were in an enclosed yard then possession or control might be easier to establish as they would not pass out the the supermarket's control until the contents of the bins were physically removed.

However, even if this test were met, it would be difficult to establish dishonesty. It is just conceivable that the prosecution could satisfy the legal test - set out in s.2 of the Act and in the case of Ghosh). This is basically a matter of whether you understood that it would be dishonest or wrong by common standards, even if you believed your condct was right or justifiable. However, if the food were removed because of hunger, or even as a protest against supermarket practices of discarding food which could still be consumed, this would at the very least require the court to engage in a discussion of the legitimacy of such practices and the justifiability of the motives of the defendants. And if went to a jury, as would probably happen, then there is authority that dishonesty is a matter of community standards and it is quite possible that a jury would be willing to acquit.

So we can see why burglary would be difficult to prove. But the Vagrancy Act 1824? The long title of the Act gives a flavour or its style and scope:

An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England

Most of the Act has now been repealed. It was notorious in the 1970s and 1980s as the basis for the so-called 'sus laws' - powers to stop and search which were used disproportionately against the black community. Remaining powers include that of the Crown Court to commit any "incorrigible rogue" to prison (s.10), and a general power under s.3 to imprison chapmen, pedlars, prostitutes, beggars and others deemed idle and disorderly persons. (I'm not making this up - you can read it here).

It would appear that the charge would be under s.4 of the Act. This is basically a long list of undesirable conduct, but includes the phrase "every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose" (a form of criminal trespass). An offender will be deemed a rogue and a vagabond and may be committed to a house of correction for up to 3 months. 

Leaving aside the question of whether there are any houses of correction anymore (we call them prisons these days), this is all very bizarre. The Act is nearly 200 years old, and nothing about it suggests that it is appropriate to our times. If the problem is with the unauthorised entering of the yard then this should either be recriminalised as a specific offence, or probably more appropriately deal with by non-criminal means - speaking to the offenders, or making discarded food available in some other place or giving it to food banks. This is a disproportionate response and it is hard to what what public interest there might be in prosecution.

 

On the understanding the history of rape

Things have been pretty quiet on the blog recently, for which I apologize. The main reason for this is that I have been busy researching and writing for my book. One of the areas that I have been working on is the history of sexual offences. I will write more about this in due course, but I wanted to write something first about the challenges of working in this area. One reason for this is because attitudes and beliefs about appropriate sexual conduct were manifestly so different from our own and it is hard both to try and understand conduct in this very different context where it may have had different meanings or significance and to disentangle modern reactions to cases from an attempt to understand the beliefs of contemporaries.

A good way to illustrate this is by looking at one of the cases I have been reading. This is the case of Barton Dorrington from 1788. You can read the whole case (it is not long) by following the link to the Old Bailey Online pages, but the brief facts are as follows.

Dorrington was charged with the rape of Eleanor Masters, a maid servant. In the words of prosecuting counsel, William Garrow, this is what happened next:

she was sent on Tuesday the 15th of May towards Bow, that was the day of Bow-fair; when she had got some distance, she was overtaken by the prisoner, who told her he had often observed her, was very much in love with her, and had a very great disposition to make her his wife; she went about her business and returned; when she returned, she found the prisoner had been at her master's house and enquired for her, and the fact is, that he did come several times afterwards, and still affected to have the same disposition towards her; he told her that he had been a shoemaker, and was now a limner [illustrator or draftsman], and in short, that he wished to marry her. Gentleman; after a considerable number of times, he came on the 16th of May, when all the rest of the family were from home; this young woman let him in and asked him up stairs into the kitchen; he went up with her, and after they had been there a very short time, he tied her hands and put a handkerchief into her mouth, and accomplished that which was his evident purpose from the beginning.

The case was complicated by two further factors. First, notwithstanding these events, when Dorrington returned to her house on the following Monday she left the house and went with him to a place (perhaps appropriately) called Foul Lane in Borough and stayed with him there for a few days, where she was ravished by him again before she was eventually found by her employer. Second, she was found to have given him a note stating the following:

"I promise to be married to Barton Dorrington on his demand, or to pay twenty pounds - Eleanor Masters."

Dorrington was found to possess a number of similar notes in similar terms from different women leading Garrow to conclude that he was a serial rapist who made a practice of attacking vulnerable women and using the promise to marry them (which he clearly never intended to keep) as a way of extorting money.

Masters was the single witness in the case. The first part of her testimony was in response to a series of questions about the attack, where she was repeatedly pressed, in the face of her clear reluctance, to describe the attack in detailed terms "in order that the jury may judge whether it was a rape or no." The second part then related to the events following when she went with him to Foul Lane because, she alleged, he threatened her. But to my great surprise, as she was questioned about being ravished again, the Court suddenly interjects to state that it is wasting time to go further and the prisoner was acquitted.

How should we respond to this case? My initial reaction is one of puzzlement, even upset. Master's story seems credible and it is hard to see why it was not regarded by the court of providing even prima facie evidence of rape. The cross-examination is upsetting, as the demand of the law for chastity and good character on the part of the victim (seemingly personified by Masters) comes into conflict with the need to describe the rape in sufficiently graphic terms to constitute proof. And in other respects the scenario just seems puzzling: why would she have accompanied her alleged attacker after the attack? Why would she have seemingly acquiesced in the demand to marry a man she had met only a day before?

And then, there is that strange note. It seems comprehensible that Dorrington might have said, as Masters testifies, that at the conclusion of the attack he had held out the offer to marry her if she said nothing to anyone. This sort of conduct seems consistent with attackers or abusers in our own time who use threats or promises to secure the silence of their victims. But then why would she have signed a piece of paper promising to marry him "on his demand" or to pay him the substantial sum of 20l - a sum of between 2 and 30,000 pounds in today's money) if she did not?

So what to make of it? One reaction might be that this exemplifies the injustice to women. This was a patriarchal system. Female servants, as single women away from their families, were vulnerable to their masters and were also easily preyed on by sexual predators such as Dorrington. She was victimized - once by the rapist and again by the courts and legal system which did not recognize her claim. This is clearly correct, but is it enough? This approach would see the history of rape as the failure to recognize justice or equality judged from our contemporary perspective, and the problem with this then it is hard to attempt to see what is going on except in these terms. Why was the case dismissed? What was the meaning of Master's conduct? Did she really believe in some way in the promise of marriage?

A second kind of reading of this case has seen it as an example of the attitudes of the courts to malicious prosecution. This approach argues that eighteenth century criminal law was dominated by the fear of false of malicious accusation, as exemplified by the comment of Sir Matthew Hale, that rape is:

an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.

On this view the suspicion was that prosecutrixes would make false claims to hide sexual indiscretions, or to try and force reluctant men into marriage - or simply out of malice. The suggestion here is that, in cases such as this, the court's fear of the false accusation distorted their view of the facts. Again, there is some suggestion of this in the statement by Garrow near the start of his speech when he states (following Hale) that charges are easily made, but his approach is balanced and it does not seem that the case can be reduced to this alone.

There are other factors to take into account, and though I am not sure yet that I can weigh the proper significance of each of these, I think a fuller reading of cases such as this would have to take them into account. First, rape was a capital offence at the time, and life was not so cheap that the courts would convict in the absence of clear evidence - and it is precisely the ambiguities and doubts, particularly relating to Masters' conduct in the days following the attack which seems to have given rise to problems for the court. Because it was capital, the law of the time required the woman to resist to the point that her life was in danger (a life for a life), and though attitudes were in the process of changing the courts would not convict where there was apparently consensual sex. This is not to defend these attitudes, but how we should understand the court.

Second, it seems clear that the spoiling of good character was central to the conception of the wrong. Although, notionally, the protection of the law extended to all women, legal commentators viewed the taking of the woman's honour, her good character, as the core of the offence - leading to many lengthy discussions of whether a prostitute or an unchaste woman might be raped. But crucial to this - and at odds with our own understanding of the crime - is that while sexual behaviour was part of the crime, the wrong was not defined by sexual behaviour alone. This was an element in a broader understanding which encompassed social status and character and their place in the social order. Thus, while Masters' apparently good sexual character was probably central to the prosecution being brought in the first place, she fatally undermined her own case when she admitted to sexual conduct which put her character in question.

And this begs the question of why she went with him in the first place when she seems to have had a reasonably protective master, who sought her out when she left and most likely funded the prosecution. It seems clear after all, that the note was not enforceable and she had already told the details of the first attack to her mistress. This is where I think it is hardest to understand what is going on, but I think her conduct must be understood in relation to contemporary understandings of seduction and marriage - and certainly the court seems to think that this might have been characterised as seduction gone wrong. Maybe she did believe the promise of marriage and maybe that was part of a broader social understanding about sex. There is evidence in the eighteenth century of what we might call 'bargaining in the shadow of the law' - sexual conduct on the promise of marriage and men marrying their accusers. Such conduct seems incomprehensible to us, but perhaps makes sense in a world where sex was valued differently, where there was less connection between romantic love and sex, where courtship opportunities were severely limited for domestic servants and so on.

Unfortunately we don't know what happened to the protagonists of the case. The best for Eleanor Masters might be that she was kept in service by her family in spite of her loss of character and was perhaps able to make a good marriage; the worst that she was thrown out because of her loose morals. In spite of his acquittal, the Court was moved to warn Dorrington about his conduct in no uncertain terms:

The seduction of these young women, under pretence of marrying, is not a crime of much less criminality than that which you have been tried for; and you will some time or another get your neck into the halter, if you do not leave off these practices

We do not know if he heeded the warning, though certainly there is no further record of him in the Old Bailey Session papers. We can only hope that he did.

On the passing of the common law of sexual offences

A death notice:

The Sexual Offences (Scotland) Act 2009 (Commencement No 2) Order 2013 www.legislation.gov.uk/ssi/2013/341/made

Peacefully in their sleep, at St Andrew's House in Edinburgh on 16 December 2013, the common law offences of rape, clandestine injury to women, lewd, indecent or libidinous practice or behaviour and sodomy.

[Thanks to James Chalmers]

On assassination

I am late in posting this, as it was my intention to publish it for the 50th anniversary of the killing of John F Kennedy last month - and so my apologies for being out of step. This, as might be expected, prompted the usual round up of stories and theories about the assassination: was there another shooter? was the CIA/the mob involved? was the Warren Commission a cover up? I don't want to get into these here, but I am interested in the question of assassination and political violence and legal responses to these.

When I use the term assassination here I mean it in quite a narrow sense. It is not just any killing, but specifically the killing of political or public figures, with a political motive. This kind of killing has a modern kind of significance. There have, of course, been politically motivated killings throughout history, and debates and theorising about when the use of violence was justified. But up to the modern period this was usually known as tyrannicide - the killing of a tyrant - as it was referred to in classical Greek and Roman political theory. Other politically motivated killings - the removal of an opponent to protect a sovereign's position or to open the path to power (think Macbeth) - could also be referred to as assassination, but the term was not widely used. The idea of assassination as politically motivated killing took on a special significance in the modern age, not only because it became more widespread, but that it was a consequence of the new form of democratic politics. The democratization of power paradoxically democratized political killing as those frustrated by existing rulers and political systems resorted to violence.

This, broadly, is the theme of a new book Age of Assassins by Michael Newton. This presents itself as a history of assassination between the assassination of Lincoln by John Wilkes Booth (1865) and the attempted assassination of Ronald Reagan by John Hinckley in 1981. (It is pleasing to see that Newton gives space to the relation between the  development of the defence of insanity and assassination though mainly in Victorian England). He argues that the nineteenth century killers were typically ordinary people driven by a (misplaced) desire to make the world better. By contrast as the book moves into the 1960s the assassins of the Kennedy brothers, of Martin Luther King, and of Malcolm X were typically loners, with few clear political motivations and often driven by a desire for celebrity. The argument of the book then paints a slightly odd picture of the decline of the American assassination.

The argument clearly works best as a history of political assassination in the USA. He shows that Lincoln declined protection because assassination was seen as un-American, a form of political violence that was alien to the inclusive new republic. And this can be contrasted with the killings that symbolised the 1960s where assassination has become politically meaningless, an act which which seeks to give meaning to an individual life. But the book is broader than this, covering European anarchism  in the 1850s, the Phoenix Park killings by Irish nationalists in Dublin in 1882, the attempted assassination of Hitler in 1944 and many more. While these are fascinating, it is not always clear how they fit into the story. Occasionally, it is true that the European context is essential to understanding American developments, as with the Russian anarchists who moved to the US and were involved in the attempted murder of the industrialist Henry Frick and the assassination of President McKinley, but in other places their inclusion seems more random and actually might seem to contradict the main argument. As Newton himself admits, political assassination is still resorted to routinely in other parts of the world - think of the political violence in Germany, Italy and the UK in the 1970s or the killing of Olaf Palme for instance - which suggests that a history of political assassination in Europe would look very different. And, of course, there is also the question of state sponsored assassination - notably of Osama bin Laden by the USA - which if included might put a very different spin on the argument.

There are also some interesting criminal law questions raised by the argument. One of the key thoughts that emerges here is the difference between terrorism and assassination. While assassination was often carried out by means of bombs (especially in the nineteenth century) and bystanders could be killed, the aim was not that of terrifying the public or creating a mood of political uncertainty by an extreme act of violence. This suggests that not all political violence is terrorism, and conversely, that it might be appropriate to recognize assassination as a distinct form of murder (as terrorism is a distinct form of violence because of its motivation). This would be because is uniquely serious or because the motivation attending the crime should be recognized in the crime definition. This might seem like an odd suggestion, but it seems clear that not all murders are the same and that the degree or seriousness of the act might be recognized in the definition.

On Mary Reid or Timney

I wrote a short post on this case earlier in the year: Mary Timney was the last woman to be publicly executed in Scotland, in Dumfries in 1862. I have now had the benefit of reading the book on the case by Jayne Baldwin that I mentioned in that post.

The story is beautifully told and presents a great deal of new information drawn from newspapers and the court and other official records. There are a number of images of letters, of some of the participants and maps and so on. Only a small part of the book is given over the murder and the trial, which is perhaps unsurprising as the case was fairly clear. The bulk of the book is the story of the efforts to get the sentence commuted and the preparations for the execution itself, and this is grippingly told even if we know the outcome in advance. There is also fascinating discussion of the involvement of local MP William Ewart in the campaign on Mary's behalf and against public executions - which came to fruition in 1868.

This is valuable contribution to our understanding of crime and capital punishment in mid-nineteenth century Scotland. I hesitate to say that it would make an excellent Christmas present - it would, but perhaps only for those with an appetite for the grim for the story it tells is not happy one.