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January 22, 2016

Should we be prosecuting historic sex crimes?

Today the Prime Minister said “there’s an industry trying to profit from spurious claims lodged against our brave servicemen and women”, and “it has got to end”. And this week it was announced,after 9 months of investigation into sex abuse allegations, that there would be no further action regarding Lord Bramall, 92, former head of the armed forces.  The publication on Monday of Moral Panic, by the Justice Gap, was very timely.  Many of the articles in this magazine question the justice of prosecuting historic sex crimes, and suggest people may try to profit from these claims.  Over the years, brave voices such as those of barrister Barbara Hewson have questioned the hysteria surrounding child abuse following the death of Jimmy Saville.

No-one questions that child abuse causes serious short and long term harm to individuals and families, and that perpetrators need to be punished and rehabilitated.  No-one questions the prosecution of those who groomed and sexually exploited vulnerable white teenagers in Oxford, Rotherham etc. But reading Moral Panic has increased my unease about the sentencing of old men to long prison sentences for something that happened, or may have happened, a long time ago.  The testimony of those like Simon Warr suggest that the odds are stacked against anyone proving they are innocent of an alleged crime so long ago.  Everybody’s memory is fuzzy, there is no forensic evidence, and few records.  More worryingly, it takes a brave jury to reject the testimony of someone who says they were raped or assaulted.

Terrible crimes were perpetrated against children, particularly in closed institutions, decades ago.  But I am concerned that there may be some miscarriages of justice now, and also that, even where the perpetrator was guilty, it is pointless to imprison middle aged and elderly men, if there is no evidence they have continued offending in the mean time.  Our prisons are over-crowded and falling to pieces.  They are not geared up to deal with the disabilities and health problems that beset old men.  Prison is there primarily to house those in danger of committing violent and sexual crimes.  It is also a punishment.  But there are other ways to punish people, even to curtail their liberty, without using prison.

Victims of sexual abuse want perpetrators to be punished and to make amends.  But they also want their pain to be understood.  Dennis Eady in Moral Panic proposes the “unthinkable” – that historic sex abuse should be dealt with via a truth and reconciliation commission. Having recently read Country of my Skull on the truth and reconciliation commission in South Africa, I can forsee some obstacles, since restorative justice only works when perpetrators accept guilt, or at least they they did what they are accused of doing.  Nevertheless, any kind of process restorative justice process would be an improvement.

An alternative would be to introduce a statute of limitations, as they have in the USA. This has been controversial in the case of Bill Cosby, who has been accused of multiple historic sex crimes and may not be prosecuted for any, because crimes cannot be prosecuted x years after they took place.  In these cases the cut-off may be too short – in California it is 6 years for sexual assault of an adult. But the principle of a statute of limitations is surely right “the laws help prevent fraudulent claims after evidence or witnesses are long gone. They also help protect would-be defendants from faulty memories or testimonies of plaintiffs or witnesses who are trying to recall what happened long ago”.

Meanwhile the investigation and punishment of historic sex abuse in England and Wales is devouring the resources of the police, the CPS, the Legal Aid Agency and the prisons.  Resources which, arguably, might be better served investigating the many thousands of crimes which have been perpetrated in the last year.