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As a Criminal Barrister working at the coalface of the English and Welsh Criminal Justice System and specialising in rape and serious sexual offences, I have watched the Avignon courtroom and the trial of Dominique Pelicot and 50 co-defendants with interest.
Like many others I have admired the dignity and fortitude with which the victim in this case, Gisele Pelicot, has conducted herself throughout an ordeal that has been horrific on every possible human level.
And, although the scale of the allegations and in particular the sheer number of those accused is staggering, sadly, many aspects of the case are depressingly familiar to anyone who is involved with this type of offence in the UK, and probably most other places in the world.
There has been over the last few years a significant increase in the number of sexual offences that are reported in the UK and elsewhere, with the Office of National Statistics reporting a 31% increase in the reporting of sexual offences in the year 2022, a trend that hasn’t abated since.
There are number of factors that play into this, including the increasing awareness of women about sexual offending and their willingness to report this type of crime, together with the Police and CPS’s improved methods of investigating these allegations.
But, although that might explain the increase in reporting, it doesn’t explain the reasons why more men are committing sexual crimes and doesn’t help address the ways we can reduce this type of crime.
My personal view, based upon the anecdotal evidence of prosecuting and defending in dozens of sexual cases each year for 25 years, is that the prevalence of pornography is a massive contributor to the increase in sexual violence towards women.
Increasingly often, the sexual offence cases I am involved with have a defendant who has an inclination towards the habitual use of pornography, often involving rape, torture and children. I wasn’t surprised when the details of Pelicot’s use of online pornography and his distribution of sexualised images and videos of his wife and other female members of his family were disclosed by the court.
If we are to keep women and girls safe, then we cannot ignore the prevalence and impact of online pornography. Clearly, better education for young people is vital, but, so is the ability of the criminal justice system to properly protect those who are becoming sex offenders as a result of early online sexualisation.
And it won’t be easy, as we are dealing with a generation who have grown up in a world where porn is readily available on their phones and tablets. The providers of online services must be held to account. The Online Safety Act 2023, already seems outdated and the woefully inadequate powers and resources given to OFCOM to regulate the gargantuan monolith that is the internet are like the trying to stop a tsunami with a paddle. The penalties for failing to protect children, range from non-existent to simply inadequate.
Society must be given the ability to properly punish not just the perpetrators of sexual offences, but also those who seek to place into the public domain the material that so often sets these sexual offenders on their way – as such, OFCOM must be given proper resources and the ability to constantly improve and expand its remit in the battle against the constantly expanding providers of online porn.
The use of drugs in such crimes, as demonstrated by Pelicot, is also on the increase. I refuse to use the term ‘date-rape drugs’, as the act of sedating a woman and sexually assaulting her is far more sinister than the pseudo-consensual act that is hinted at in the term ‘date-rape’.
When I first started at the Bar, 25 years ago, it was extremely rare for rapes or sexual assaults to occur after the offender had sedated his victim, now it is all too common particularly among younger male offenders where there appears to be a growing culture that almost seeks to rationalise the surreptitious use of sedatives as simply part of the sexual experience.
Indeed, I recently prosecuted a case where the defendant tried to equate the use of Rohypnol on his victim as being the same as using Viagra on himself – ‘all my mates do it,’ he said, ‘and the girls know it. It’s just moving things along.’
Such a shocking attitude toward sex and the seeming utter inability to see women as anything other than a physical object clearly has to be addressed. Again, education is important, but, pubs and clubs need to face sanction if drink-spiking occurs on their premises, while the penalties for those possessing or selling sedatives should be increased.
In the Pelicot trial, Gisele Pelicot has become a feminist icon for her refusal to remain anonymous – her desire not to hide from the world what was going on and continues to go on is heroic in every way and almost certainly contributed to the fact that the panel of judges had little problem in convicting each and every defendant.
But, of course, not every victim has the same fortitude and resilience as Gisele.
Over the last couple of decades much thought has been given to making the experience of victims inside the system easier. However, this commendable aim is not always compatible with the equally valid desire to improve rates of conviction. For example, the last decade has seen an increase in the use of pre-recorded cross-examination for the victims of sexual offences. This, it was hoped, would make it easier for victims to give their evidence as they would not have to physically set foot in a courtroom and face the pressure of actually coming into contact with the jury or the person they have accused.
For children, such a measure is clearly advantageous. However, increasingly, we are seeing juries acquit in cases where adult witnesses have not come into the courtroom to give their evidence ‘live’ as juries often find it difficult to empathise with an individual who appears to them as a pre-recorded face on a screen rather than in the flesh.
This concurs with my own experience, where, overwhelmingly, a witness appearing in person, like Gisele, and looking at a jury in a courtroom and recounting their experience has much greater force.
It seems to me that if we are to improve conviction rates for sexual offences in the Crown Court, then we must be prepared to take a long look at the way in which complainants give their evidence which both protects them and allows them to give their evidence in a way that has maximum force.
Another feature of the Pelicot trial was that the evidence was heard and the verdict delivered by five judges rather than a jury of ordinary people.
Like many criminal barristers I’m wedded to my belief in the importance of the jury system. To be tried by one’s peers is a fundamental right, and, my experience, overwhelmingly, is that the attention paid to a criminal case by a jury is first class. Even though every lawyer who has ever appeared before a jury will occasionally leave court with a feeling of annoyance at the jury’s verdict, it is rare that one leaves court with a settled view that they’ve clearly got it wrong.
The French system involves a panel of judges rather than a jury. There is an argument that in sexual cases where the evidence is often little more than one person’s word against another, a lay jury will struggle with the standard of proof or ‘having to be sure.’ A panel of judges, more adroit and experienced with that concept, may have less difficulty. However, before I would advocate in favour of that, I would like to see more research.
Once the panel of judges in the Pelicot trial reached their decision about the 51 defendants, they proceeded immediately to sentence the main protagonist, indicating that he would be sentenced to 20 years imprisonment.
The other 50 defendants were not sentenced, but the judges indicated that sentences would range from ‘freedom to custody.’ In England and Wales I would expect Dominique Pelicot to be sentenced to life imprisonment, while the others would expect to receive substantial custodial sentences. In addition, a court in England or Wales would be allowed to make a determination as to whether an individual was ‘dangerous’, which would see the sentences extended. The French system does not have these provisions.
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The suggestion, therefore, is that British Courts are tougher on criminals than those in France. If this is right, given that the prevalence of sex offenders is about the same in both countries, it would seem that impact of lengthy sentences on potential sex offenders is negligible.
Tough on crime, tough on the causes of crime, has become a cliché, but, the growing trend of men who are unable to respect the right of women to say who does what to their bodies and are increasingly being subjected to different levels and forms of sexual objectification, means that the time has come to rewrite this cliché, as tough on sexual crime and tough on the causes of sexual crime.
To this end, we must improve education for boys and young men from an early age, take steps to protect them from unnecessary and early sexualisation through the prevalence of online pornography and take steps to rework the processes of the criminal justice system so that the alleged victim is both protected from unnecessary hurt, but not removed from the system altogether to the extent that the jury see them, almost, in the abstract.
It’s understandable that people, politicians and law makers are acclaiming and lionising Gisele Pelicot, but the bigger challenge is to respond to her bravery with proper action.