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Backlash against tax QC who said the legal system allows men to ‘rape almost with impunity’

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Criminal lawyers described the comment as ‘ill judged’, ‘unfair’ and ‘poor’

A tax specialist made a tweet about the legal system and its treatment of rapists, and it sparked a whole load of controversy in the criminal law community.

Days after Harriet Harman MP proposed a ban on lawyers asking alleged rape victims about their sexual history, Devereux Chambers’ Jo Maugham QC made this tweet:

Within minutes, it became clear Maugham’s tweets had irked some criminal lawyers. 9 St John Street barrister Jaime Hamilton was one of the first to make his feelings known:

Anonymous legal blogger and advocate the Secret Barrister, who recently revealed they’re to publish a book on the criminal justice system and how it’s broken, added:

Rebecca Herbert, a 36 Bedford Row barrister who specialises in serious sexual offences, also seemed unimpressed. In a long series of tweets, she told Maugham his comment was “ill judged”:

Then it was the turn of outspoken criminal lawyer and St Pauls Chambers silk Simon Myerson. Throwing in his two cents, the fraud specialist said:

Later, Myerson made a comment seemingly shared by some others embroiled in the Twitter spat. Is Maugham — a tax specialist who is planning to sue Uber over an alleged unpaid VAT bill and whose crowdfunding efforts helped pay for the recent Supreme Court Brexit challenge — qualified to comment on the criminal justice system and how it deals with rapists?

Criminal solicitor Rich Carlin, who described Maugham’s original tweet as “poor”, seemed to echo this sentiment when he said:

Despite the backlash, Maugham appears to be sticking by his original tweet. Speaking to Legal Cheek this morning, he said:

It’s absolutely desirable that we, as a profession, engage constructively with public concern about how the legal system functions. There are dangers for us if we allow ourselves to be portrayed as defensive and out of touch.

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39 Comments

Anonymous

If he cares so much, why doesn’t he stop finding loopholes that allow multinationals to escape their tax liabilities?

Maybe he could even turn his crowd-funding attempts to overturn brexit into a campaign to raise the rights of victims of sexual offences?

(18)(1)

Bumblebee

Let’s say that C accuses D of rape. D’s case is that he met C in a nightclub, bought her a few drinks, and then took her home and had consensual sex. C’s case is that she met D in a nightclub, he bought her a few drinks, and then she went back to D’s home whereupon she was raped.

Let’s further say that C is promiscuous; she often goes out clubbing with the intention of procuring one night stands.

In what world is C’s sexual history irrelevant? Clearly, a woman who is prone to having one night stands is more likely to have had a one night stand. This is such a basic fact that it beggars belief that there is any opposition to it whatsoever.

Regardless of what feminists and the left might think, no jury is so obtuse as to think that a woman who is prone to one night stands can’t be raped. It is for the jury to consider ALL the facts, and then for counsel and/or the judge to warn against biases and sloppy thinking. In many instances a complainant’s sexual history might be of little relevance and should therefore only be given limited weight. However, that should be a decision for the jury (with the assistance of counsel) who are in a position to consider any given set of facts in the round. Clearly, it shouldn’t be for parliament to blindly decree that sexual history should always be given zero weight, regardless of the facts.

Nothing illustrates this better than the Ched Evans case. The complainant in that case had, on more than one occasion prior, met a guy, had a one night stand, and then subsequently claimed to have been so drunk as to have had no memory of the encounter whatsoever. And yet, this evidence wasn’t available to the jury at the first trial, even though on all previous occasions such behaviour was deemed ‘consensual’.

At the retrial, this evidence was put before the jury. However, crucially, it was not put before the jury for the reasons one might expect. Rather, it was put before the jury because on two such previous occasions the complainant, during sex, had said words to the effect of “fuck me harder” – words which the Defendant had also recalled the complainant saying. Pursuant to s.41 Youth Justice and Criminal Evidence Act 1999, the Court of Appeal decided that these accounts were so similar that “the similarity [could not] reasonably be explained as a coincidence”.

With the greatest respect to the Court of Appeal, a woman saying “fuck me harder” during sex is not a particularly unusual coincidence. I doubt very much that this was paid too much weight by the jury. However, a course of conduct which involves regularly having consensual one night stands and then subsequently claiming to have no memory of the event IS unusual – it’s the sort of thing which makes an otherwise implausible defence case somewhat plausible.

(32)(7)

Anonymous

Eh, I’m not getting how the woman’s sexual history is relevant in the scenario you describe in your first couple of paragraphs.

(9)(13)

Bumblebee

It’s quite self-explanatory. A woman who regularly engages in reckless, promiscuous conduct is more likely to have engaged in reckless, promiscuous conduct.

Sometimes, when women agree to go back to a man’s home for “a drink”, they do so with the intention of having sex. On other occasions, however, they do so with the intention of having a drink (but no more).

When it’s not in dispute that a complainant agreed to “a drink”, the jury has to determine what was going through her mind when she agreed to that drink. This is becasue it might help to indicate what was going through her mind during any subsequent sexual conduct.

When considering this question, a good place to start is what she meant and intended when she agreed “a drink” on previous occasions.

(12)(8)

Anonymous

But if you meet someone on a night out then go back to their place then it’s pretty obvious that there’s some kind of sexual intent there. You don’t need to show that someone has had sex before to show that. Do you really think that someone who has never had a one night stand before is less likely to have sex with a man she’s met in a nightclub and gone home with than someone who has had 10 one night stands before? That seems completely tenuous to me.

Bumblebee

Yes, I do think that.

Further, I disagree with your statement that if you go back to someone’s place “it’s pretty obvious that there’s some kind of sexual intent there”. In certain contexts, it is perfectly possible to go back to someone’s place with no sexual intent whatsoever. In other contexts, one might be open to the idea of sexual contact, but thus far undecided. And in yet further contexts, one might by that stage already be raring to go and using the idea of ‘a drink’ as no more than a thinly veiled excuse to get the evening started. All I’m saying is that, in some cases, a complainant’s sexual history might help to elucidate the applicable context.

Sexual behaviour is just like any other type of human behaviour. If someone regularly engages in a particular conduct, they are more likely to do so again. If someone regularly seeks one night stands, I consider it more likely that they sought a one night stand. Just as equally, if someone regularly has one night stands without falsely alleging rape, I consider it less likely that they falsely alleged rape.  

Anonymous

I think you’re imagining a scenario that doesn’t happen. No one’s case ever has been, “oh when I went home with that guy I just met and spent the night grinding with on the dancefloor it was completely platonic as far as I was concerned.” There’s no need to prove that there’s a possibility that the woman might have been open to sexual advances, because that’s obvious on the facts.

Yeah, I agree that if you go back to someone’s place to look at their etchings, it’s not 100% certain that sex will ensue. But it’s overwhelmingly likely to be understood by both parties that some kind of sexual contact is a possibility. And I just don’t see that sex is more or less likely if someone has had sex in such a situation before.

To put it another way, at the point when you’ve gone back to look at someone’s etchings, you’re already having a one night stand. You don’t need to establish that someone is the kind of person to have a one night stand in those circs. The question is whether the sex on the one night stand is consensual. I don’t understand how the fact that a woman had sex on a one night stand last week has any probative bearing on her case that on this one night stand she felt sick and decided she would rather leave it at a handjob.

Bumblebee

When you’re proposing a blanket ban on evidence of a particular type, it’s not open to you to start introducing specific facts in that way.

Re: grinding, my scenario did not involve ‘grinding’. It’s perfectly possible for two adults to converse over drinks in a nightclub, to move to a private place, and for sex to not be on the cards. This can be the case where the parties are already acquaintances, for example. It depends on the context, and I’m in favour of giving juries as much of the context as possible.

Re: feeling sick, again my scenario did not involve this. No one is saying that a promiscuous person is less likely to feel sick. Rather, a promiscuous person is less likely to exhibit inhibitions against promiscuous behaviour. Surely that’s obvious.

Anonymous

Ok. Let’s keep it simple. On your suggested facts, a guy and a girl go back to the guy’s house after a meeting on a night out. Unless the night out is some kind of bible study class, what you’re describing is the start of a one night stand. So you don’t need to introduce evidence to show that the girl is always or never having one night stands in order to show whether or not she is the “kind of person to have one night stands”; on this occasion, she has decided to have what at the outset at least is the start of one. Replace grinding with whatever fact pattern you like, my point is that when you have a situation where the guy says it was consensual and the girl says it wasn’t, the girl is not going to be claiming that there was nothing sexual at all between them. IF the girl was claiming, oh no, it couldn’t have been consensual because I never have sex with strangers, then ok, it’s probative. If the girl is saying, I went back to his house, but I didn’t consent, I don’t know wtf you’re talking about.

Bumblebee

There are two fundamental fallacies in your thinking.

First, it’s simply not the case that going back with someone is “[always] the start of a one night stand”. Indeed, that’s a very strange position to take and there are very few people, even on your side of the debate, who would agree with you on that point.

Secondly, even ignoring that first point, someone who regularly has one night stands is less likely to change their mind and suddenly get cold feet.

Let’s apply your way of thinking to a completely different scenario which doesn’t involve an alleged rape. Let’s say it’s in issue whether C cycled to work, and it’s not in dispute that she was seen wheeling her bike out of the garage at 8.30am.

Scenario 1: C says she wanted to make space in her garage and was therefore wheeling her bike to the rubbish bins so as to be collected by refuse collectors.

By your logic, it’s irrelevant whether or not C has cycled to work everyday for the past two years. You seem to be of the view that if C began wheeling her bike out the garage, that’s the start of a commute-by-cycle and therefore C must be the “type”.

Scenario 2: C says yes she was considering cycling, but after having wheeled out her bike suddenly got cold feet and didn’t feel comfortable cycling on the road.

Again, by your logic, the fact C has cycled to work everyday for the past 2 years is irrelevant. Someone who regularly, or even religiously, cycles to work is no less likely to suddenly get cold feet than any other person who decided to cycle to work that morning.

I would say that in both cases, it is beyond obvious that the past cycling history of C is relevant.

Anonymous

Outrageous to say that just because a woman goes back with a man she wants to shag him. Plenty of women, particularly age 16-25, go back with a man without that intent.

The point perfectly illustrates why, in actual fact, sexual history is relevant when examining motivation.

Anonymous

So basically you are saying that if a woman has frequent one night stands, she would be more likely to be lying about this particular incident. Despite you saying it is ‘obviously relevant’, the scenario you describe is NOT one where previous sexual behaviour would be admissible under s 41. This is because you are saying the history goes to the complainant’s credibility.

Anonymous

Currently writing an essay on s.41 and the issues aren’t as straightforward as is being painted above. I would suggest reading something like Redmayne ‘Myths, relationships and coincidence: the new problems of sexual history’ (2003) 7 E&P pp.75-101 as a good start to understanding the issue of relevance.

Bumblebee

“So basically you are saying that if a woman has frequent one night stands, she would be more likely to be lying about this particular incident.”

Not quite. What I’m saying is that past behaviour need not be exceptionally unusual before it has probative value.

“Despite you saying it is ‘obviously relevant’, the scenario you describe is NOT one where previous sexual behaviour would be admissible under s 41.”

Yes. With respect, this is the very point I’m making. I’m saying that the current law is wrong.

Anonymous

“A woman who regularly engages in reckless, promiscuous conduct”

See, I don’t even entirely disagree with you, but this statement makes it clear that you are primarily bothered that some women have a lot of sex and likely don’t care about the issue at all. Having one night stands isn’t reckless if one takes the proper precautions.

I’ve met people like you. It’s always the rational argument at first – a viewpoint many reasonable people hold too – but then the mask slips and it becomes clear that it’s mostly about punishing women who have a lot of sex, usually borne out of frustration that you aren’t the person they are having it with.

Bumblebee

I’m not quite sure if this is an ad hominem attack, or else a nasty and gratuitous attack on my character.

But either way, thanks for the contribution.

Ciaran Goggins

You omit that in R v Evans & McDonald, Clayton was acquitted of the same charge as Ched, or that Ched had the worst legal team in history. Just ask Jean Hatchet (Vonny Watts).

(0)(0)

Anonymous

You’d think that a millionaire top tax bazza could afford a nice tie.

(8)(2)

Not Amused

Maugham becomes more troubling and self obsessed by the day.

Perhaps he is not waving but drowning.

(23)(7)

K

Lmao… Trust NA to be be persistently irked by JM.

(3)(0)

Anonymous

Not Amused.. when every other comment has like 2 or 3 likes or dislikes and yours has 10 likes, it’s painfully obvious that you’re just liking your own comment 10 times.

(7)(2)

Anonymous

Noticed this a few times on your comments. No way are people ignoring the comments on the issue of rape and only ‘liking’ an attack on some random tax QC.

(1)(1)

Anonymous

I liked his comment. The article is about a particular QC. That QC is pompous. Other people are liking Not Amused’s comment to this effect.

(1)(0)

Anonymous

A ‘backlash’? Hardly.

(1)(4)

Trumpenkrieg

It’s not a backlash, it’s a thorough taking down a peg or two.

(1)(1)

Mrs Peacock

Twitter tattle gossippy wossippy .
I mean really. Who has even got a twittle twattle account. Such vulgarity does not become a lady or gentleman of standing. Twitter twattlers are a disgrace to the profession

(2)(0)

K

Practically every MP has one, for starters.

(1)(0)

Anonymous

Exactly.

(1)(0)

Anonymous

Love the Sean Spicer-esque suggestion that if the criminal bar *feel* that rape is a Bad Thing, it’s a faux pas to say there might be a problem with their treatment of it. Well done Simon.

(3)(0)

Anonymous

Seriously, it’s one thing disagreeing with this guy, it’s another to suggest that he is unqualified on this issue. It’s a matter of national importance, and not one you need to be a specialist to understand. I really dislike it when lawyers suggest that only lawyers (and in this case, specialist practitioners) should be able to take a view on the law.

(5)(2)

A. Criminal. Barrister

It’s not that he cannot express an opinion on what should be done. The problem is he has no first-hand knowledge to support his, frankly OTT, assertion. It’s quite common in civil to rely entirely on dubious hearsay as evidence though, so he probably does not understand what is required to really prove something 😉

(5)(3)

Anonymous

My point is that you don’t need first hand knowledge to make a judgment about an issue like this. The idea that criminal practitioners are the only people capable of understanding the question of what evidence should be allowed in a rape trial is completely ludicrous.

(1)(0)

Anonymous

On the other hand, if specialist criminal practitioners decide to publicly criticise someone’s view on matters of criminal law and the justice system, I am inclined to give their criticism some weight.

Anonymous

To the extent that they’re criticizing the content of his view, yes. To the extent they are claiming he is unqualified to have a view, no.

Mrs Peacock

My point exactly K. MPs are the most ghastly people

(0)(0)

Anonymous

You had me until you quoted Myerson – a loud mouth if ever there was one.

(6)(0)

Anonymous

I’m surprised the fella had a moment where he took his head out of Israel’s arse to consider another issue.

(4)(0)

Ohhh matron.

He is a Leeds QC – what can you expect? Big fish little pond.

As many Leeds lawyers put it: “Leeds barristers just don’t want to know; however, Manchester, Liverpool and London barristers will bend over backwards for you”.

Comes with the territory.

(2)(0)

Ciaran Goggins

We are not putting a woman’s morality on trial, but it is helpful to know that 33% of rape allegations are false.

(1)(3)

Comments are closed.