Wins and losses – the prosecution of sexual violence

Jo Tamar has decided to join the Hoyden roster following her sterling guest Hoyden efforts. Welcome! ~tigtog

A tale of two legal systems.

In each legal system, there is a woman has been sexually assaulted.

Each woman is subjected to some sort of abuse by the person who is supposed to be prosecuting the sexual assault.

The similarities end there.

In one:

The trial of the alleged attacker, in 2009, collapsed after [the woman who had been attacked] mentioned in her evidence on the first day that he had been in prison, a fact the jury should not have been told. She insists that she had never been warned she should not talk about the matter.

The next day, without consulting the victim, the CPS decided to offer no evidence in the case, meaning it was dropped and the defendant found not guilty. Prosecutors could have sought a new trial at the time but because they did not the man cannot be tried again on the charge.

When the woman’s boyfriend called the CPS to ask if this was a possibility, he was told by a member of staff the only way there could be another trial was if the alleged attacker “did it to her again”.

When the crown prosecutor in charge of the case later wrote to the victim explaining why it had collapsed, she accused her of “deliberately disclosing” to the jury that the defendant had been in prison. The letter also revealed that the man was behind bars in relation to a sexual assault.

The woman sought a judicial review and the CPS admitted it had breached Article 3 of the UN Convention on Human Rights by failing to prosecute sexual assault effectively, accepting its decision to offer no evidence and not seek a retrial was wrong.

It settled the case for what is believed to be a record sum for an Article 3 breach in a sexual assault case.

In a letter to the victim, the chief crown prosecutor for London, Alison Saunders, wrote: “I accept unreservedly that you were not to blame in any way for the collapse of the prosecution and I apologise that you were made to feel that way by the CPS.”

She said the failure to support the victim by consulting her on the decision to drop the case was unacceptable, and the application for screens should have been dealt with more competently and sensitively.

This case builds on the law in this area, arguing that – in the case of sexual assault – failing to properly investigate and prosecute a serious sexual assault is a breach of the positive obligation to protect people from inhuman and degrading treatment.

The award of £16,000 damages is also significant, and likely to send a clear message within the CPS – currently awaiting the results of the spending review and the inevitable cut in its budget, of the importance of handling cases properly.

In the other:

[A DA prosecuting a domestic violence case wrote text messages to the complainant:] “Are you the kind of girl that likes secret contact with an older married elected DA … the riskier the better?” Kratz, 50, wrote in a message to Stephanie Van Groll in October 2009. In another, he wrote: “I would not expect you to be the other woman. I would want you to be so hot and treat me so well that you’d be THE woman! R U that good?”

Kratz was prosecuting Van Groll’s ex-boyfriend on charges he nearly choked her to death last year. He also was veteran chair of the Wisconsin Crime Victims’ Rights Board, a quasi-judicial agency that can reprimand judges, prosecutors and police officers who mistreat crime victims.

Van Groll, a college student and part-time preschool teacher who has moved to Merrill, said she has been told Kratz won’t be charged because “they didn’t think he did anything criminally wrong.”

Compare and contrast.


Categories: ethics & philosophy, law & order, social justice


14 replies

  1. The first case was a typical story of how “loop hole law” fails. Very few people agree with they way in which the law is today and many believe a complete overhaul is necessary to stop this garbage.
    The second is a case of ethics versus legality.
    What he did was unethical – He was prepared to cheat on his wife and was propositioning a victim. Poor taste is grounds for demotion even dismissal in extreme cases, but not criminal prosecution surely.

    • The prosecutor is not being charged with a crime in the first case, either, AJ – so I’m almost certain that Jo is not advocating criminal charges against the second prosecutor.
      The point is that the British justice system has a judicial review system in place that recognised that their prosecutor had done something wrong, offered an apology and some compensatory damages.
      In the second case it appears that once the police decide that there’s no criminal case to answer then the victim’s rights are exhausted. The prosecutor alleges that he has been cleared by the Office of Lawyer Regulation of violating any rules governing attorney misconduct, an office that is barred from commenting on its decisions. His place of employment has refused to discipline him.
      That difference judicial review procedures is the point.

  2. Pretty much what tigtog said 🙂 (and thanks for the welcome TT!)
    Note that the prosecutor in the first case was not charged under criminal law, just (presumably) disciplined by no longer being a prosecutor of that kind. The government body that is the DPP paid the compensation and made the apology.
    To me, they are both questions of ethics and procedure. I consider the breach of ethics in the USA case far more egregious. And to make it clear, the ethical fuck-up in the UK case is IMHO not because the prosecutor decided not to proceed, but because of what was said to the complainant in relation to that decision.
    I actually think there’s a case for criminal laws against behaviour of this kind (ie re-victimisation of complainants of sexual violence). I think there’s a case that the behaviour described in the USA case should be covered by such hypothetical laws (this is different from saying that I think the specific DA in the USA case should be charged – even if my hypothetical laws existed, I simply don’t have sufficient info to make that call). I don’t think there’s a case that such hypothetical laws should cover the behaviour in the UK case.
    One thing that I think is worth considering is this: traditionally, in English law, the complainant in the UK case would have had no recourse against the prosecutor’s decision, just as in the USA case, the complainant had no recourse once she’d been told he didn’t do anything “criminally wrong”. The European Convention on Human Rights (I’m pretty sure that is what the journo means by the “UN Convention…”) has changed that. Article 3 – prohibiting torture and degrading and inhuman conduct – is becoming a pretty useful right, often in quite surprising ways.
    (By the way, I don’t give a shit about the DA’s ethics in relation to cheating on his wife. That’s entirely his business, and I don’t consider it relevant to his professional ethics. I would consider his actions just as professionally unethical if he didn’t have a wife or any other lover, and had engaged in the same conduct towards the complainant.)
    In terms of the rules of evidence – yes, I agree that these could be do with some significant reform (in the UK, the USA and Australia). But that’s OT on this post.

  3. Welcome, Jo!
    AJ: Sexual harassment of someone you are in a massive position of power over is just “bad taste” in your mind? Wow.
    This guy has the power to not prosecute her abuser. His actions need to be seen in that context. This is very, very close to a rape and death threat in my mind: “you be good to me, I’ll be good to you (and work on not letting your abuser out to try to murder you again)”. How that can be seen as merely “unethical” and “in bad taste” is bizarre to me. And how on earth is his marital status relevant to the effects on the victim?

  4. Thanks lauredhel.
    Hmm, I just realised there’s a really important implicit assumption in my comment above:
    Lawyers’ professional ethical standards often have the force of law (or, alternatively, something that is a breach of professional ethical standards may also be a breach of the civil or criminal law – or both, for the trifecta!). They can certainly be the subject of complaints to disciplinary bodies, which have quite serious powers.
    Thus a breach of professional ethical standards is quite serious, and my comment above should be read in that light.
    (This is not intended as an argument with you, lauredhel – I know your comment about the DA’s actions being described as “merely ‘unethical’” was not pointed at my characterisation of the ethics of the situation. But your comment made me interrogate my own language.)

  5. Jo – oh, definitely – the same in medicine, of course. AJ seemed to be equating ‘unethical’ with ‘in bad taste’, which was rather different.

  6. @tigtog thank you.
    @lauradhel. I’m not sure what to say other than I find both instances disgusting in these articles. My apologies for not using strong enough condemnation of the idiot in the second article.
    All abhorrent actions are in poor taste, imho.
    Thank You

  7. Fascinating post Jo.

    More, more, more.

  8. Joey Jo Jo! Congrats on joining the HAT team. 🙂

  9. blue milk & Chally: thanks 🙂
    lauredhel: yes, I had a feeling you might understand 🙂

  10. Yikes.
    I mean, it’s not a huge surprise that someone who so blithely commits abuse has done it before. But the extent of such depravity never ceases to shock me.
    I don’t actually know anything about the regulation of the legal profession in the USA – I assume it is largely self-regulated, as here – but I hope that this does get taken up. I’m now also curious about what would happen in a similar case in Australia. I might see what I can dig up, if I get time.
    I should also have said that I hate the way people refer to his behaviour as “sexting”. It’s out-and-out abuse and/or harassment, and should be referred to as such.

  11. Maud at Shakesville reports that the state of Wisconsin may take action against Kratz after the state Governor received a number of complaints.

  12. Maud at Shakesville has more: Kratz has now resigned. Go read Maud’s post for the full story.

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