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Gender Sensitivity, The Sexual Offences Act. 2010 and the Case for an Appeal

By A Woman’s Activist

It is with absolute consternation that, as advised by the Hon. Chief Justice (CJ) via the media, I read his judgement in the case of Henry Greene v The DPP & Others.  Two things struck me about the judgement – (1) the absolute lack of gender sensitivity and understanding of modern thinking on sexual offences and (2) the lack of any reference to the definition of rape as now provided for in the Sexual Offences Act, 2010 (SOA) along with the provisions on presumptions regarding consent.  To highlight the issues I raise I will quote directly from the judgement (as published) where necessary.

The judgement is clearly steeped in archaic and fossilized common law notions of rape.  The SOA provides in section 7 (1) for the presumption that a complainant has not consented to sexual activity, which includes rape, and in section 7(2) (k), one of the thirteen circumstances listed as indicating a lack of such consent is that there is “abuse of position of power or authority to the extent that the complainant could not resist at the time of the sexual activity”. These provisions are in the SOA precisely because such notions of rape as expressed by the CJ are outdated and do not provide for situations where a perpetrator’s power and influence could be exerted.  To say that the post of Commissioner of Police is not one of power and authority would be ridiculous to say the least.  The CJ only referred to section 69 (1) which deals with the fact that there is no longer any need for corroboration of an allegation and warnings in this regard and section 80 which restricts the introduction of evidence that previous allegations of sexual assault may have been false.  The reference to these two sections suggests that the CJ read the Act, but the seeming lack of appreciation of the rest of the SOA by the second highest judicial officer in Guyana is alarming.

What is also very troubling is that the judgement does not reflect that the DPP, or counsel who represented her, highlighted these provisions, more particularly the definition of rape, in their submissions to the court.  One may however conclude that they would have expected the CJ to be aware of and take into consideration all of the provisions of the SOA.

The judgement reveals that the CJ sought to vilify and re – victimise the virtual complainant (VC) in this case with opinions, inferences and conclusions on her conduct that reflect a lack of appreciation of what she actually said and meant. The CJ totally misunderstood the VC’s pleas to Greene to stop his sexual activity, concluding that there were signs of pleasure when in fact they were used to try to get him to stop.  The CJ himself clearly indulged in irrelevancies such as to make his decision equally irrational, by applying the said legal Wednesbury principles which he relied on. His references to the VC ‘s possession of a Blackberry Curve and according to him, her seeming lack of care for and of her children, are totally irrelevant to the issue that he had to determine.

The CJ recounted that Greene deposed that the VC went to him for help and that he was aware that she was under police investigation since October 2011 for attempted extortion.  As Commissioner of Police (COP) no doubt Greene was made aware of what his subordinates were doing in this investigation.  Yet, nowhere in the judgement is there any focus on Greene’s inappropriate and unethical conduct.  Instead the VC was made out to be the villain who in effect seduced Greene into acting unprofessionally as she (to quote from the judgement) “was attempting to procure no less a person than the Commissioner of Police himself to pervert the course of criminal justice”.  To say that her attempt in this regard was “ambitious and to be successful much persuasion was necessary” is to take a quantum leap in judgment and amazingly places lots of power on the VC when Greene should have been the person to rebuff any advances made.  It is however noted that the CJ’s decision does tend to indicate that “much persuasion” was not necessary for Greene to decide to provide assistance in a most unorthodox manner.  One also gets the impression from the decision that it is Greene who is the victim with the CJ opining: “How far was she prepared to go to achieve her goal?”  There was no corresponding query: Why didn’t the COP act professionally and not use his position and power to in effect intimidate a member of the public?  The CJ’s views that “Surely the relationship….had progressed beyond that of Commissioner of Police and a complaining member of the public” is to totally ignore the power relation that was in effect being played out.  The meeting with Greene outside hours of work to which the CJ referred has to be put in the context that the original contact and purpose for such contact was to seek assistance from Greene in his capacity as COP.  Greene is then absolved of any wrongdoing in taking advantage of a person who, being a suspect, went to him for assistance in addressing her matter in a more timely manner.  The CJ did not at all address or consider the fact that Greene has used his position as COP to access police statements in this and the alleged extortion matters to his advantage thus creating a situation of unfair advantage.  It is known that the average, ordinary citizen would have absolutely no access to statements in a matter in which they are the suspect or are implicated until after he/she has been charged – a point to remember when I later comment on the matter of an appeal.

It is also noted that the CJ said this, albeit he sought to negative the statement by references to what he considered to be reactions that were not consistent with that of a rape victim – “While (name of VC) in her statement , did set out circumstances which unequivocally point to the applicant’s (Greene’s) commission of the offence of rape against her…”. (Emphasis mine)  The statements in the judgement thereafter reveal that the CJ has become an expert on reactions of rape victims.  Further, in his assessing her conduct as being incredulous thus affecting her credibility, the CJ became not only the judge, but also took on the role of a jury.  It is incredulous that the CJ concluded that in fact the VC and the COP had become lovers.  The CJ kept referring to Greene’s state of mind with references to his apparent amorous desire for the VC comparing them to her statements which he found inconsistent with rape.  Again the circumstances of how they came to meet and the position of Greene as COP were not considered. Section 52 of the SOA provides that judges are to direct juries that “complainants of sexual offences display a wide range of responses and that the absence of behaviour they might expect a complainant of a sexual offence to display should not be taken as evidence that the offence charged did not take place.”  The decision studiously ignores this provision.

The CJ also seems to have taken on the role of a defence counsel who was arguing his client’s case before the jury.  With great respect his decision does not reflect that of an impartial adjudicator.  My legal friends have assured me that there are a number of leading authorities that speak to the issue of a Court intervening, but in cases where there is no evidence to support the charge, and not to assess the sufficiency of evidence.  I am also told that on the issue of the DPP apparently utilizing “legally inadmissible statements”, this does not take away from the fact that the VC’s statements were highly relevant and admissible.  The DPP’s reference to these “legally inadmissible statements” can be likened to a magistrate who commits (throws over)an accused to stand trial in the High Court having permitted all statements (admissible or not) to be led.  This action would not make the committal invalid once the admissible evidence supports the key aspects of the offence.

The CJ referred to provisions of the Code for Crown Prosecutors published by the Crown Prosecution Service of the United Kingdom (CPS) which sets out general principles that Crown prosecutors should follow when they make decisions on cases.  The CJ highlighted this and other codes that provide for “the realistic prospect of conviction test” and he asserted that the DPP should have considered this test in determining whether Greene should be charged.  While the “realistic prospect of conviction” test is realistic given the need for smart use of prosecutorial and judicial resources (all State resources), this standard or test is also to be considered in light of the public interest test. I quote now from the CPS website (which is www.cps.gov.uk/publications/docs/code2010english.pdf)

With respect to the “realistic prospect” test the guideline states:

            “Is there enough evidence against the defendant?

When deciding whether there is enough evidence to charge, Crown prosecutors must consider whether evidence can be used in court and is reliable.  Crown prosecutors must be satisfied there is enough evidence to provide a “realistic prospect of conviction” against each defendant.

Is it in the public interest for the CPS to bring the case to court?

A prosecution will usually take place unless the prosecutor is sure that the public interest factors tending against prosecution outweigh those tending in favour”.

Specifically section 4.12 of the code states that the “more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest”.  It goes on to provide for “some common public interest factors tending in favour of prosecution” and section 4.16 states that:

            “A prosecution is more likely to be required if:

….(j) the victim of the offence was in a vulnerable position and the suspect took advantage of this;

…n) the suspect was in a position of authority or trust and he or she took advantage of this;

…r) a prosecution would have a significant positive impact on maintaining community confidence;…”

As is therefore clear, the realistic prospect of conviction test in not the only standard by which decisions on whether or not to prosecute are judged.  Perhaps the CJ either did not analyse the entire range of circumstances in the code or decided he did not have to, which is unfortunate. It is undeniable however that given what was just quoted above, the victim in this case was obviously vulnerable and given Greene’s position of authority and trust (after all he is the COP), it can be inferred that he used this to his advantage.  Therefore, the DPP, applying the code as well as recognising the need to maintain public confidence, would have properly advised that he be charged.

Is there a place for pornography in a court decision?

The regurgitation of all of the sordid details of what occurred (with unsubstantiated conclusions) can be considered to be most gender insensitive to say the least, and unnecessarily salacious.  Of course, for those (mostly men) who have felt that there was absolutely nothing wrong with the COP’s conduct, that it was a mistake, misjudgement etc., such detail would be seen as appropriate.  It still is recommended that these persons acquaint themselves with the current definition of ‘rape’.

Finally, the SOA was meant to reduce the unfairness and inherent discrimination that the entire investigative, prosecutorial and judicial system metes out to victims of sexual abuse, where male or female.  The CJ’s decision has set back the great efforts that have been made to address the deficiencies that have traditionally beset sexual offence cases.  It is sincerely hoped that the judiciary as led by the Hon. Chancellor takes action which clearly must include gender sensitive interventions and seminars on violence against women and children in order to diminish the now negative fallout from this case.  This would go a far way to restore confidence that the judiciary is impartial and fair and is in touch with the public conscience.

The need to appeal – Some legal sources have suggested that an appeal should be possible for two reasons: (i) that the matter was brought as an administrative action and was not a criminal action from which an appeal usually is not possible; and (ii) that the exception to the relevant provision of the Court of Appeal Act (which was reported as referred to by the Hon. Attorney – General in his advice) does not apply because a criminal charge had not yet been brought – thus distinguishing Greene v DPP from the cases i.e. Dataram and Zaman Ali, which were referred to. A read of section 6 (5) (a) of this Act reveals that there is reference to if the matter brought is “a criminal cause or matter”. In this current situation it is not (a criminal cause or matter) as no charge had been brought as yet against Greene.

Out of a challenging situation sometimes comes good – hopefully we are all more enlightened and aware, in circumstances where an education and advocacy programme on the SOA was necessary from the start, but which unfortunately was never done.