16 January 2011

The Relevant Act

The Guardian writes an interesting story under the headline,

"Mark Kennedy and the strange case of undercover sex".

The article is about the vicarious tortious liability that the police may have incurred because of the sexual relationships that Mark Kennedy/Stone had with some of the environmental activists upon whom he was spying.

As I was reading the article, I was immediately struck as to whether or not, Kennedy/Stone was liable for rape.

The article quotes one of the women Kennedy/Stone slept with,

"... "Anna", the woman who came forward to the Guardian said: "if somebody was being paid to have sex with me, that gives me a sense of being violated.""

She goes on to say,

"Anna suspects that Kennedy's sexual relationship with her, and others, was not a genuine and private act of intimacy but a "tactic" to further his mission of gleaning inside information about the environmental protest movement."

The Sexual Offence Act 2003 section 1 describes rape and makes a point of stating (s1(3)) that sections 75 and 76 are relevant to the offence; whilst section 76 of the Act provides,

"76 Conclusive presumptions about consent

(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

(a)that the complainant did not consent to the relevant act, and

(b)that the defendant did not believe that the complainant consented to the relevant act.

(2)The circumstances are that—

(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

On the basis of this it looks as though there is a conclusive presumption that Anna and others have been intentionally deceived.

Just imagine if Anna rolled up at a police station and complained that she'd been raped by Stone/Kennedy, the police would be compelled to begin an investigation. Statements would be taken, a file would be prepared and this would be sent to the CPS. The CPS would look at s1 of the Sexual Offences Act 2003 and s76 of the Act and weigh up whether or not there was a fifty percent chance of getting a conviction of Stone/Kennedy, and whether or not it was in the public interest to do so.

As to whether this will happen; I don't know. If it did happen ...

As to whether or not he would be prosecuted; well, he's a police officer, she's an environmental acitivist, what do you think?

Addendum from wikipedia, rebuttable presumption,

"Both in common law and in civil law, a rebuttable presumption (in Latin, praesumptio iuris tantum) is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. A rebuttable presumption is often associated with prima facie evidence.

Rebuttable presumptions in criminal law are somewhat controversial in that they do effectively reverse the presumption of innocence in some cases. For example, in the United Kingdom, Section 75 of the Sexual Offences Act 2003 makes the rebuttable presumption that a person who is unconscious or asleep cannot consent to sexual activity.

I haven't seen any other comments in the media as yet regarding Stone/Kennedy's liability but he should be worried.

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