Following on from our article ‘Wise up – don’t use ‘streetwise’, we take a brief look at the impact that careless language can have in criminal proceedings.
Trials involving serious sexual assaults can become nasty affairs, despite attempts in recent years to reduce the distress that the court process has on victims. Often the victim is subjected to very intrusive questioning about their private life and previous sexual experiences. Much of the time this has no relevance to the proceedings being heard, but instead is raised to muddy the waters and cast doubt over the victim’s credibility and character. After a person has been charged with a serious sexual offence, the first requests coming from the defence camp often relate to whether the victim has any criminal convictions, is of previous ‘bad character’ and whether they have had any previous police interactions. This also relates to any relevant third party material, which potentially includes information held by social care and other organisation. The victim’s phone records, previous sexual history, mental health and medical notes are some of the items that the defence may go rooting for.
A prime example of where the innocent actions of a victim can be twisted within a trial, occurred this month in Ireland. This trial made international headlines, drawing condemnation and protests, after the defence suggested that the 17-year old victim’s lacy underwear had signalled consent to the accused. The lawyer representing the accused apparently told the jury in closing argument, “You have to look at the way she was dressed. She was wearing a thong with a lace front.” This is quite an extreme case and wasn’t in a British court, but it does demonstrate what a catfight these cases can become. Generally the defence will use any action or piece of information to get an acquittal.
This is where the language used by safeguarding professionals, becomes highly important. We all need to be truthful and factual when completing our reports detailing our interactions with children and vulnerable actions. We are also allowed a certain amount of opinion and hypothesis, when considering risk and making decisions around a safeguarding response. However, we do need to take care about the language we use, and be acutely aware that our documents may end up being used in criminal proceedings. Here is an example where we gift a defence lawyer with unnecessary information:
Example: Information contained on a Child Sexual Exploitation referral from social care to police concerning a 17-year old female who lives in semi-independent accommodation.
“Staff at her placement have become increasingly concerned at the number of male visitors to the home. She is demonstrating over sexualised and promiscuous behaviour, and staff there believe she may be putting herself at risk by prostituting herself. She comes home spelling of cannabis and they are concerned that she may be offering sex for drugs or money to buy drugs”.
This passage contains both factual and speculative information. It leaves us in no doubt that there is a definite problem, requiring a safeguarding response. However, the way this has been presented is unprofessional. We clearly know why it was written, to highlight her vulnerabilities, but it fails to acknowledge that she may be a victim of sexual exploitation. Instead, everything about this brief summary suggests that the young person is responsible for her own actions. We have over egged this scenario for impact and to make a point, but language like this is often used in safeguarding documents. Our colleagues who specialise in the child abuse and sexual exploitation areas, have a name for this type of vernacular – ‘victim blaming language’.
Taking this scenario on a few months. The young woman reveals that she has been forced through threats and violence to carry drugs and firearms for a gang. She has also been forced to have sex with the gang members, in other words repeatedly raped. She uses cannabis and other drugs as a way of coping with the horrendous situation she finds herself. Twelve months further on and there has been a police investigation and safeguarding interventions. The victim is in a much better place and the gang members stand before the court charged with an array of serious offences. Our young lady is in the witness box giving her evidence. It has taken months of support from police, social care and voluntary groups to get her to the point where she is able to have the courage to face the men who treated her so brutally.
Under the Criminal Procedure and Investigations Act 1996 the prosecution has a lawful duty to disclose to the accused, any prosecution material which might reasonably be considered capable of undermining the case for the prosecution or assist the accused’s defence. Simplified, this means most pieces of information obtained in a police investigation need to be placed on a schedule and passed by the police to the Crown Prosecutor who then decides whether it is suitable to be disclosed to the defence under the rules above.
It is highly likely that our original referral falls into information that may undermine the prosecution case. It will possibly assist the multiple defendants in their defence and is now in the possession of the multiple defence barristers (one for each defendant). Their objective is to get their client off, and they have been presented with a gift which will help them discredit or at least cast doubt on the character of our brave but terrified witness. They may take care when questioning the victim for fear of alienating the jury, but they won’t be so soft on the social worker who made the original referral or the lead police officer. They will focus their questioning on:
“over sexualised” – this provides an opportunity for the defence to explore the conduct of the young person. How does she behave? Isn’t it true that she is flirtatious? What clothes does she wear? Do you think they are provocative? Do you think they are appropriate? They will turn what would be normal dress for a 17-year old, twist it and suggest to a jury that her habitual dress resembles something that was bought from an Anne Sommers shop.
“promiscuous behaviour” – look in most dictionaries and you will find the definition something similar to: “often used to describe a female’s behaviour, having a lot of different sexual partners or sexual relationships, or sexual habits involving a lot of different partners”. The defence can now start to sow the seeds of doubt to the jury, by suggesting that our young lady was not raped. She was in fact a willing party and happy to have sex with several of the gang members, after all that is what promiscuous people do, isn’t it? Our case is slipping away based on some words that actually were not that factual to begin with.
“putting herself at risk” – this term completely lays the blame at the door of the young person. It implies that she doesn’t have to leave the placement and she is not under any duress. She is in control of her own actions and has a choice. Do you have much choice if a gang has threatened to rape your little sister, stab your brother or firebomb your house if you don’t do what they tell you to do? The term does not acknowledge the bigger picture, the fact that she is being exploited and abused. Appropriate language would be “when she leaves the placement the staff have concerns that she may be vulnerable to those that that will exploit and groom her” or “staff believe she will be taken to, or end up at locations that are dangerous and pose a risk to her. We are concerned she is being coerced, under duress and manipulated”.
“by prostituting herself” – the dictionary definition of the word prostituting is ‘to sell or offer (oneself) as a prostitute’. This provides an opportunity for one of our fictional barristers to suggest that the victim willingly offered herself up for sex. Juries can be funny things, at the age of 17 there may well be one or two who won’t view her as a child , but instead someone who can make this choice.
The use of the word prostitute to describe children should now be a thing of the past following the Serious Crime Act 2015 which contained amendments to the Sexual Offences Act 2003. This ensured that criminal offences containing the terms child prostitution and pornography were replaced with the term ‘sexual exploitation of children’. The change recognises that children are victims who have been exploited and abused.
In March this year three women won a legal battle at the High Court which prevents them having to reveal their previous convictions for ‘prostitution’ offences to any potential employers. All three had been exploited, having been forced into sex work as teenagers. Meanwhile the campaign to pardon children who were (and still are) forced to commit crimes whilst being groomed, slowly gathers pace. ‘Sammy’s Law’, as it is often referred to, is being campaigned by Sammy Woodhouse, a survivor of CSE in Rotherham. It has the support of various police chief’s, MP’s and the Children’s Commissioner. With the legislative change and increased awareness, hopefully it won’t be long before the term “child prostitute” is eradicated completely, although it is still used internationally.
“she may be offering sex for drugs or money to buy drugs” – again this type of comment does nothing to address the child’s vulnerability, but instead the term is used against her. There is no mention that “she is being sexually and criminally exploited by unknown men who are exposing her to drugs” or “she is being used by an unknown male who has a hold over the child’s drug dependency”.
The defence of an accused in a serious sexual offence trial is rarely based on one piece of documentation. The defence team will pursue many avenues and test the prosecution evidence, for that is their job. However, in most cases where the victim was known to the accused (even briefly), they will at some point try to discredit a victim’s evidence and cast doubt on their character. Therefore, we do not need to provide them with additional ammunition in the form of clumsy and badly thought out wording. Here’s a second fictious example:
Example: Police missing person risk assessment for a 15-year old male, who regularly goes missing from foster care.
“Subject is a repeat missing person who regularly absconds from his carer who has no control over him. He has criminal tendencies and the last time he went missing he was arrested in Margate having been found in possession of heroin and crack. He is currently under investigation for this. He knows what he is doing and has made a lifestyle choice to run drugs. When debriefed before, he has been uncooperative and displays a poor attitude”. He is streetwise and able to look after himself. I consider him medium risk by virtue of age only.
Clearly in this scenario we have a child who has become involved in County Lines criminal networks. Our fictious police supervisor has carried out a complete character assassination starting with “criminal tendencies”. It may well be that the child has been involved in crime before, he may even have criminal convictions. However, involvement in criminality for a child should in most cases be seen as a heightened vulnerability rather than the precursor to suggesting “he knows what she’s doing”. By far the worse term in this scenario is “lifestyle choice”, which implies that the young man has full control over the choices he makes. It fails to recognise that children involved in county lines are groomed, exploited and trafficked. In effect this risk assessment writes our child off as a “drug runner”. It ignores the fact that criminal networks use threats of extreme violence against the child and their families to exercise and maintain control.
It will often be difficult picking out the right words. Some victim blaming terms may well be unavoidable in certain circumstances. The truth should always prevail, but great care should be taken when describing the person and their behaviours. There are many terms that we have seen that could have been written in a less victim blaming way e.g. “reckless and irresponsible”, “sexually active since”. One that we see far too often, both in law enforcement and social care is, “she is in a relationship with an older man”. Depending on the circumstances better alternatives might be “she is potentially under the influence of an older man” or “there are concerns that she is being coerced/groomed/exploited by an older man”. Of course, in some circumstances she may well just be in a relationship with an older man and it will be okay to record that. It just needs thinking about, justified and be evidence based.
Independent enquiries into non-recent child sexual exploitation scandals in Rochdale, Oxford and other locations, identified that there was a perception amongst many professionals that the children involved had made poor lifestyle choices. Those scandals were less about language and more about attitudes and culture. However, if you use poor language then you may well face some criticism if something were to go wrong. Serious case reviews, criminal cases and coroners’ inquests are all places where others will pick over our work, looking for the slightest fault. You views and attitudes towards the vulnerable person will be questioned, based on what you wrote and the language you used.
Thanks for reading
