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Choosing the right offence (1) – police officers and sexual exploitation

It has started to feel as if no area of life is free from sexual exploitation: schools, children’s homes, hospitals and recently football clubs. Now it is the turn of the police to find the spotlight shone on them, by a report from HM Inspectorate of Constabulary (HMIC) which has highlighted cases where officers have abused their authority for sexual gain.

None of the allegations, reports or even convictions mean that there is suddenly sexual abuse everywhere, but they do mean that as a society we have, for years, normalised and ignored sexual exploitation, failing to listen to and protect the vulnerable. The current inquiry into sexual abuse has a remit which focuses on institutions and organisations which risks blaming those institutions and organisations rather than making society accept that it must change as a whole. Eric Bristow has been castigated for the comments he made criticising abused footballers for not being “real men”, but the uncomfortable truth is that he is not alone in holding those views.

It is important that if Bristow-type views are to be challenged, that sexual misconduct, when it has occurred, is prosecuted appropriately but robustly. The police report highlights one area where that has not always happened. Officers who have sexual exploited vulnerable people are not always prosecuted. First, because victims are not keen to report the second conduct. Second, because this is sometimes dealt with as an internal disciplinary matter.

Even where there are prosecutions, they often result in convictions for the offence of misconduct in public office rather than for a sexual offence. This is an area which I have been analysing with a colleague at Nottingham Law School (Helen Edwards) examining cases which were reported in the law reports and those reported in the press to uncover trends. Sometimes the conduct alleged against an officer is not covered by current sexual offences, so misconduct in public office is the only option for prosecution. Sometimes, however, the misconduct in public office offence appears to have been preferred because the wrong is seen as the abuse of power rather than the sexual exploitation, or because the complainant is so vulnerable the concern is that s/he will not cope with cross examination on the issue of consent. A conviction for misconduct in public office, although a serious matter, does not reflect the sexual aspect of the offending, and the effects of conviction are limited, for instance there is no automatic inclusion on the register of sex offenders. Helen and I responded to the Law Commission’s first consultation on misconduct in public office suggesting that there needs to be a specific offence dealing with this form of sexual exploitation and this suggestion has been taken up as a question in the Law Commission’s second consultation. The difficulty comes in determining the terms of such an offence – should it just cover police officers or others with power over others? should there be a requirement of complainant-vulnerability or is the defendant’s abuse of his/her position for sexual gain the crux of the offence? We are considering these points for our response to the second consultation because it strikes us that the HMIC report makes stark the need for such an offence to help give victims the confidence to report conduct against them and to enable such conduct to be prosecuted as a sexual offence.

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