Monday, 19 June 2017

I Think There's One Big Flaw In These Sexual Abuse Trials

Like me, you may have been distracted recently by a little thing called the General Election, as well as terrorist atricities in our major cities and now the Grenfell fire tragedy. So much so that if you blinked you might have missed the news that Rolf Harris will face no further legal action over allegations of historical sex abuse after a jury was unable to reach verdicts on four charges, and prosecutors said they would not seek a second retrial.

The disgraced entertainer and artist, who was jailed in July 2014 for unconnected sex attacks on young girls and women, was being tried for the second time over alleged sex attacks on teenage girls in the 1970s.

At the time of Harris's conviction I remember having a discussion with some Facebook friends regarding what I thought was a very interesting but highly contentious issue surrounding the matter of jurisprudence and how things change over time. I never got round to blogging about it, so thought I would today as it should at the very least give you pause for consideration of something litigiously debatable.

What’s extremely contentious about the original outcome is that Rolf Harris was charged under the sexual offences Act of 1956, because the offences happened at a time of old legislation. Basically, if he’d have done the same things now he would have received a heftier sentence, because cultural evolution has shifted people’s perspective and tolerance on crimes like paedophilia, with penalties now being severer.

Now I'm not 100% certain that this view of mine is correct, although I think it is probably more correct than incorrect, but I don’t think it is right that someone should receive a shorter sentence that has been matched to the legislative time of the crime(s). It seems clear to me that past crimes should be penalised according to the present legislation (and I mean this generally speaking, not just taking into account Rolf Harris’s situation).

Let's face it, crimes like rape, child sex offences, racism, homophobia, and social legacies like sexism and misogyny, belong to a class of behaviour that society used to treat too lightly. And while far from perfect, today's UK society is at least a society that treats these things much more seriously, and has less tolerance for these things than at any time in history.

Given that legislative measures and acts of jurisprudence are built on a cultural evolution of the increased wisdom and revisions of human beings over time, I’m of the view that sentencing for any crime should be administered according to the legislation of the time of the trial, not the offence. Otherwise it rather undermines the perceived wisdom that went into the revision processes of jurisprudence over time.

I remember at the time, my friend Mark made an interesting point; he warned that it could set a dangerous precedent. He says: “If we raised the age of consent to 18 we could then punish all those who had sex at 16″. My friend Jacqui added a good point which illustrates a thin end of the edge-type of caveat. She says: “We had hanging back in the early 60s, so if somebody was now found guilty of murder back in 1960 do we get to hang them?”. Quite! These are good observations made.

Apart from a difference in scale of penalty, the legislators at the Rolf Harris trial agreed with this action *in principle*, just not in practice. They were willing to penalise in accordance with past legislation – but only if it was the right kind of past of legislation (I’m certain that if tomorrow they had a trial in which a man was found guilty of committing murder in 1959 they would not sentence him to hanging).

The thing about Mark and Jacqui’s points, though, is that two different things are being conflated. Mark makes his point in relation to a change of law, whereas Jacqui makes her point in relation to a change of perception of appropriate sentencing.

The Rolf Harris incident should be assessed under the terms of Jacqui’s analogy because the Rolf Harris legislative issue is not to do with a change of law (his crimes were still illegal in the sixties) but a change in the perception of appropriate sentencing. The key difference is that if we raised the age of consent to 18 we could not reasonably punish all those who had sex at 16, because they were doing so at the time from within the orbit of the law. Conversely, in terms of jurisprudence, murderers that were hung in the 1950s differ from murderers now only to the extent that punitive measures differed – the act of murder was still against the law.

Hence, in conclusion, if revision of jurisprudence is to avoid being undermined, I think people should be convicted and sentenced under the (present) legislation at the time of their trial, not under the legislation of the time of their crimes, as Rolf Harris was. As I say, it's a not a view I definitely know I'm right on, I could be persuaded it's wrong if anyone has a robustly convincing counterargument (if so I invite you to share), but as things stand I think it's the right view.