There is a clear distinction between rape and sexual activity in breach of trust and the dividing line between them is consent: HH Judge Mark Gargan (para 126)

Background
The claimant alleged that she was raped by a residential care worker (XY) on 12 January 2008 when she was 16. There was no grooming or emotional manipulation and her evidence was that only in retrospect did she consider a rape had occurred. The residential worker who was 29 at the time of the alleged sexual assault denied that any form of sexual interaction took place and the defendant relied on a limitation defence, which succeeded.

The claim failed on the grounds of limitation but HH Judge Mark Gargan, applying Bowen, made a finding on the consent issue, taking the claimant’s case at its highest.

The claimant’s case

The claimant’s case was that the combination of: (i) her psychological make-up; (ii) XY’s position as a residential worker; and (iii) the claimant’s relationship with XY, was sufficient to establish that although she submitted to sexual intercourse (and appeared to do so willingly) there was no true consent. 

Judge’s findings

The judge reiterated that whether the claimant consented is a question of fact and set out Cutts J’s summary of the law on consent from the case of LB of Harringey v FZO:

A person consents to sexual activity with another if they have the freedom and capacity to consent.  Submission is not the same as consent.

The judge found that it was clear the claimant had the capacity to consent.  Therefore the question was whether or not she did so.  On the basis of the evidence he concluded he was firmly of the view that the claimant did consent to any intercourse that took place for the following reasons:

• The claimant was sexually aware at the relevant time;
• There was no evidence XY had subjected her to special treatment before the date of the alleged rape;
• There was no evidence that XY offered any inducement to the claimant to consent to intercourse;
• There is no evidence that XY made any threats to the claimant or coerced her into having intercourse;
• The claimant’s contemporaneous understanding appears to have been that the intercourse was consensual in that, for example, she described “bragging about it” to another resident and that it had made her “feel special”;
• The claimant was right to assert that any intercourse between her and XY was “wrong”.  It would have been a criminal offence.  However, it was not a tort if the claimant was “willing” in the sense that she freely consented to it;
• The claimant’s Counsel’s submissions came close to asserting that no one under 18 could consent to intercourse with someone in a position of trust.  The judge stated he did not regard that to be the law.  There is a clear distinction between rape and sexual activity in breach of trust and the dividing line between them is consent;
• The claimant submitted that the claimant’s psychological history may have made her more likely to agree to intercourse, in particular because she was vulnerable and in need of love and affection and because she was impulsive.  However, the judge found those factors would explain why the claimant consented rather than explaining that her consent was not freely given;
• The claimant was right to assert she was not an adult.  She may well not have realised XY was committing a crime if he had intercourse with her.  However, she understood what intercourse was and that having such intercourse with XY was inappropriate (or “naughty” as she termed it).  Despite this the claimant agreed to intercourse;
• The judge accepted that the claimant may have lacked some of the maturity to place the act in its full social context.  However, he said that is something that may be said of many teenagers who have sexual intercourse.  There is a myriad of situations in which greater maturity or hindsight can lead people to conclude that they had been unwise to engage in sexual intercourse.  However, the judge commented that does not mean that they did not give a valid consent at the material time.

The judge concluded that on all the evidence, assuming intercourse took place, it was more likely than not that the claimant freely consented to engage in it.  He rejected the claimant’s argument that a criminal offence for breach of trust under section 16 of the Sexual Offences Act 2003 was equivalent to a lack of consent and instead he applied the common law test and found that this was not a case where the claimant had submitted and so not consented.

It is rare consent is contested in abuse claims due to the sensitive nature of the issue.  The key factors in this case were a lack of any evidence of grooming on the part of the residential care worker and that the claimant’s contemporaneous understanding was that the intercourse was consensual even though she later developed the view that it was not.  This case is also a reminder of the different approaches to the issue of consent in criminal and civil law – any sexual activity between the claimant and XY would have been a criminal offence but it would not have been a tort if the claimant freely consented to it.

Written by Catherine Davey at BLM (catherine.davey@blmlaw.com)

The headmaster, Dr Savage, of a top private school has issued a “sincere and unreserved” apology following the publication of two independent reviews, for any hurt caused to pupils following allegations of racism and harmful sexual behaviour.

The reviews were commissioned following the Everyone’s Invited and Black Lives Matter national campaigns. 

The Everyone’s Invited website was set up for survivors to share their experiences and post their testimonies completely anonymously; the mission to expose and eradicate rape culture.  

The school was one of many that appeared on the Everyone’s Invited website whereby pupils (past and present) posted 44 testimonies of sexual abuse and harassment they had experienced whilst at the school – mostly committed by other pupils.  Examples of harassment include verbal or online comments, sharing sexual images without consent, abusive relationships, sexual and sexist bullying, rape and the ignorance of the meaning of consent.  Social media was used to rapidly spread gossip, bullying and unsolicited sexual images.

The school is predominantly attended by boys with girls attending post-16.  Of the girls surveyed as part of the review into harmful sexual behaviours at the school, 65% had experienced at least one instance of the behaviours described above.   

Amongst the 70 recommendations following the review, the school was advised to overhaul its relationships and sex education curriculum and put more emphasis on how to create healthy relationships, educate on gender stereotypes and equality.  Staff should also receive training on how to deal with matters beyond the normal curriculum such as mental health support.

The Race Review found “Significant events, such as the spotlight on Black Lives Matter, led to an increased awareness of racism but the continued denial of racism and invisibility of the issue as part of the school environment led to a dichotomy between those for whom this was very important and those who felt that they had ‘done awareness’ – so there is no need to ‘keep talking about it’.

There are relatively low numbers of black pupils in the school making it ‘emotionally draining’ for those pupils to challenge racist behaviour thereby drawing additional attention to themselves.  It added that staff felt unsure how to effectively deal with racial harassment incidents.

The Race Review made 25 recommendations, including increasing the offer of counselling to victims, publicising its racial harassment policy and recruiting a more diverse teaching staff.

In response to the reviews, Dr Savage said “We certainly acknowledge that opportunities to learn have been missed in the past and welcome the advice in these reviews as to how we might reflect upon those and continue to improve”.   

The recommendations are not all specific to Westminster School and all schools should consider those recommendations and what more they need to do.

Written by Lyndsey Jackson at BLM (lyndsey.jackson@blmlaw.com)

BBC News has uncovered that in the past five years more than 80 safeguarding referrals have been made about after-school clubs. Details about the referrals was obtained via subject access requests from local authorities and they include allegations of assaults, neglect, and sexual abuse.

After school clubs, sometimes referred to as wrap around care, help parents with childcare outside normal school hours.

The adult social care sector in England is facing significant challenges in recruiting and retaining staff, matters which could be affected by post-EU exit policies that seek to reduce net migration. The Migration Advisory Committee (MAC) recently reviewed these important issues and last month published a comprehensive report to government which runs to over 150 pages.

The key findings from the MAC – an independent, non-departmental public body that advises the government on migration issues – can be summarised as follows. The full report can be viewed here.

Conclusions

• The adult social care sector in England faces a gap of 200,000 care workers by the end of this Parliament because of restrictions on immigration and a failure to attract UK workers to roles in the sector. Longer term, it is estimated there could be a shortfall of 1 million workers in the next 20 years.

• Immigration policy cannot solve the crisis in the social care workforce, although it could mitigate some of the problems created by the shortage of care workers. The ending of freedom of movement of people (as a consequence of the UK’s exit from the EU) closed off a source of workers at a critical time for recruitment and retention.

Recommendations

• Adopt a common framework for collecting data about the care workforce as a whole, because there is a “serious evidence gap about the labour market for directly-employed care workers, despite the role of public funds in employment many of them.”

• Invest in training and career development to make social care more attractive for UK born workers.

• Introduce a fully funded-minimum rate of pay for care workers that is greater than the National Living Wage. A minimum starting point should be £10.50 per hour “to be implemented immediately”. [The chair of the MAC, Professor Brian Bell, said that although this has already been implemented in Scotland it “however, will not be enough to address the issues and we urge the Government to go significantly further as quickly as possible.”]

• Pay social care workers for hours at work even if their time is spent travelling or sleeping. The MAC considers that as long as these hours are not being adequately compensated, workers are being underpaid for their time spent at work and it recommends that where care is being provided through public funds, those funds should increase to reflect the additional costs involved.

• Introduce more highly skilled roles to the Shortage Occupation List making it easier for employers to recruit from overseas.

• Allow low skilled migrant workers enter the social workforce by revisiting the currently-suspended Tier 3 visa route (Tier 3 was designed for low-skilled workers filling specific temporary labour shortages via a temporary work visa).

• Consider setting up umbrella body – possibly on a ‘pilot’ basis – to sponsor care workers from overseas. People who can demonstrate that their level of need requires live-in care would be able to recruit directly recruit from the umbrella body (this approach is modelled on SAWS, the Seasonal Agricultural Workers Scheme).

Commenting on the publication of the report, Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said:

“The Migration Advisory Committee’s report offers a further wake-up call for Government. The Voluntary Organisations Disability Group backs the Committee’s recommendation to fully fund a rate of social care pay above the National Living Wage. A fully funded £10.50 per hour social care rate would be a good start, but we know the true value of care work is much more. We need to be ambitious in rewarding talent for much-needed social care.”

What might it mean for civil claims?

The unprecedented recruitment challenges faced by the adult social care sector and highlighted in the MAC’s report might have some influence on civil courts assessing personal injuries claims which feature care needs. The recommendations in the report could play into arguments that privately funded care regimes are more appropriate than public sector provision.

The stand-out recommendation that carers be paid for travelling to work and for ‘sleeping in time’ could, if implemented, have a significant effect. It could risk re-opening the issues determined by the Supreme Court in Mencap v Tomlinson-Blake [UKSC 2018/0160] which held (a) that working time for the purposes of the National Minimum Wage did not include ‘sleep in time’ and (b) that carers should be paid only for time that they are awake and working.

A further concern is that if the costs of statutory funded care regimes increase as a result of some or all of the MAC’s recommendations being taken forward, that could have a ‘knock on’ effect on the cost of private care regimes. Should insurers detect significant increases in these heads of claim it will become ever more important to scrutinise the detail of proposed care regimes and, where necessary, to take a robust line on unreasonable costings.

The key question: will these recommendations be implemented?

The report was published towards the end of April, meaning there has been neither sufficient time for a formal response from government nor for any of the proposals to find their way into the new legislative programme outlined in the Queen’s Speech earlier this week.

The MAC’s recommendations, if implemented, face in to two sensitive topics for the current government: increasing public spending and opening up immigration. Those issues could very easily combine as a strong political headwind against implementation.

That said, the recommendations may well be seized on by other stakeholders in the sector as an additional element in ongoing campaigns about greater funding of public sector care. In the short term at least, the proposals from the Committee are probably not going anywhere. The first clues to the government’s reaction to them will have to await publication of the immigration Minister’s reply to the report and to Professor Bell’s covering letter of 27 April.

Written by Steve Lynch, Partner and Alistair Kinley, Director of Policy & Government Affairs issued on behalf of the Care, Statutory Funding and Rehabilitation SMG