Tort Claims for Rape: More Trials, Fewer Tribulations?
Tort Claims for Rape: More
Trials, Fewer Tribulations?
Introduction
In a well-known civil claim for rape, A v Hoare and other appeals [2008], Hoare won £7 million in a national lottery and was sued by his victim, Mrs A, 16 years after the offence. While it may be this case that springs to mind when rape and tort law are mentioned, it only somewhat tangentially involved rape. The central legal issue in the case was limitation periods, and the House of Lords’ decision is significant primarily in relation to claims for the harms of child sex abuse brought by adult survivors. However, there are a number of cases where tort law does tell a story about rape specifically, drawing on and informing ideas as to the wrong and harms of rape, and what constitutes consent and when sex is (non)consensual. Take Lawson v Executor of the Estate of Dawes (Deceased) [2006] for example, a case in which a woman was awarded £259,000 in damages after being falsely imprisoned for three days, during which she was sexually assaulted and raped a number of times. The trial centred on the question of whether or not she consented to all that went on in the defendant’s hotels on the island of Alderney.
Nevertheless, civil cases of rape remain relatively rare, notwithstanding that there is a clear cause of action: it has long been recognised that the trespass to the person torts – battery, assault and false imprisonment – encompass the act of rape, other sexual assaults and domestic violence (eg Lord Denning, R v Chief Constable of Devon and Cornwall, ex parte CEGB [1982]: [471], referring to Heuston 1977: 120). One significant reason for this, Martha Chamallas and Jennifer Wriggins explain, is that tort law has been developed largely without women and the particular harms they suffer in mind (2010). Feminists have created a good picture of this skewed history, illustrating the gender disparate effects of tortious rules and principles, as well as exposing its gendered (and gendering) form and content (for an overview, see Conaghan 2003). In short, the gender bias of tort is well known. And yet perhaps the point for many, Joanne Conaghan considers, is to question whether tort law can be used strategically to ‘good egalitarian ends’ in spite of this (2003).
To what extent, if at all, encouraging civil claims for rape is a worthwhile strategy is a question that has gained some attention, although the majority of the scholarly literature is located in the US and Canada where cases of this kind are more common (Feldthusen 1993; West 1992; LeGrand and Leonard 1978). One detectable concern is that framing rape as a civil as opposed to a criminal wrong, and placing the responsibility of pursuing a case on the survivor, could trivialise and privatise the wrong and harm of rape. But the argument is not that tort law should replace the criminal law in this respect, and indeed it cannot be emphasised strongly enough that efforts to improve the criminal justice system must continue. Rather, tort law can offer an additional response to rape by compensating for the harms and consequential losses. Nevertheless, the point that it can also provide legal recognition that a wrong has been done may be particularly significant in England and Wales where report after report has exposed the flaws and failings in the criminal justice system’s response to rape, and the consequently low conviction rate (Baroness Stern 2010). In this respect, the use of tort law could serve to underline the problems that pervade the criminal law and criminal justice system (Godden 2011). There are, of course, other practical issues which may limit claims in tort, such as the potentially high costs of civil litigation, the likelihood of a lengthy and stressful process, combined with the risk of losing the case or that the defendant will be unable to pay damages if awarded. However, if and when rape survivors wish to pursue such claims then they should be supported and encouraged as far as is possible.
Instead of taking an approach which primarily aims to assess the value of bringing civil claims for rape, the emphasis will be on exploring changing interpretations and applications of tortious principles – some due to its increasing deployment in cases of sexual violence and abuse – and the implications for tort cases involving rape. This chapter will focus on three civil cases of rape and consider to what extent, if at all, the potential to utilise tort law as a means by which to offer rape survivors redress is increasing. It will focus on the common issues raised in these cases, explore changes and developments in the courts’ approaches and assess the implications for future civil claims for rape. Parrington v Marriott [1999], Griffiths v Williams [1995] and Lawson have been chosen because they are three of the most recent reported cases of this kind, and therefore are the most up to date in relation to legal principles. Also, the legal focal points that are discussed in the higher courts are likely to be significant for most civil suits brought for rape. Included are elements of substantive law, notably consent, of procedure, mainly the standard of proof, and finally in relation to remedies, the level of damages awarded. It will be argued that the judicial development of tortious rules and principles has made some improvements in tort law – at least on its own terms – so that it may offer a better response to rape.
Three tort tales of rape
Parrington v Marriott [1999]
On 13 May 1985, Ms Parrington began working as a lab technician at Hi-Tech Yarns Ltd in Leicester, where Mr Marriott was employed as the production manager. Following the breakdown of her marriage, Ms Parrington claimed that Mr Marriott sexually harassed her over a period of 18 months and raped her twice in 1992. Towards the end of that year she terminated her employment at Hi-Tech Yarns and began receiving counselling from the Rape Crisis Centre; she suffered from depression and post-traumatic stress disorder, and had a breakdown at the beginning of 1994. After this crisis point, she turned to the law for redress. She did this in three ways over the course of the year: first, she brought a case against Hi-Tech Yarns for unfair constructive dismissal and sex discrimination; secondly, she made a criminal complaint; and finally, she made a tortious claim for damages. The Crown Prosecution Service decided not to proceed with a prosecution, and the application to the Employment Tribunal was stayed pending the outcome of the tort litigation, although it is unknown whether these proceedings continued or if so what the outcome was. This leaves only the tort case which conclusively provided the claimant with a remedy. An action to hold the company vicariously liable was struck out, but the trial judge found Mr Marriott liable for rape and sexual harassment and Ms Parrington was awarded £73,778.06 in damages. The Court of Appeal upheld this decision, rejecting the defendant’s arguments that the trial judge’s findings were against the weight of the evidence, and that the level of damages was excessive.
Griffiths v Williams [1995]
In Griffiths v Williams, Ms Griffiths was raped by her landlord when he approached her at her flat, claiming that she owed him rent money. Following this, he harassed and stalked her. At trial he claimed that she was a sex worker and consented to sex with him in lieu of rent. The case was first tried – rather unusually for a civil case – before a jury at Truro County Court1 which found in favour of the claimant and awarded her £50,000 in damages for rape and sexual harassment. The defendant appealed on the grounds that the judge had been wrong in relation to allowing two sources of evidence to be admitted, that the direction as to the standard of proof was inadequate, and that the level of damages was too high. The Court of Appeal dismissed the appeal; the claimant was successful.
Lawson v Executor of the Estate for Dawes (Deceased) [2006]
Ms Lawson was falsely imprisoned for three days by Mr Dawes in his hotels on the island of Alderney, during which she was raped on multiple occasions, sexually assaulted and forced to consume intoxicating substances. A mutual friend had informed Ms Lawson that she was invited to attend a job interview with Mr Dawes and it was for this purpose that she had flown to Alderney. However, upon her arrival it became clear that Mr Dawes had other intentions. He did not mention an employment vacancy, but transported Ms Lawson between his hotels on the island, telling her that they were haunted by Hitler’s ghost, they were under constant surveillance and that the telephones were ‘bugged’. He forced her to consume intoxicants and raped and sexually assaulted her a number of times. It was three days before she managed to raise the alarm and contact the police. A criminal investigation was initiated but it came to an end when Mr Dawes died. Consequently, Ms Lawson brought a civil suit seeking general and aggravated damages for the rapes, assaults and false imprisonment, and special damages in respect of past and future lost earnings on account of the post-traumatic stress disorder she suffered as a result. Eady J awarded Ms Lawson damages amounting to nearly £259,000.
The basis of liability
While claims in tort for rape are relatively unusual, to some extent they are straightforward. It is well established that liability for rape can be grounded in the torts comprising trespass to the person which protect against intentional conduct which interferes with a person’s right to bodily and mental integrity, and liberty. It is perhaps because this is clear that it was not explained by the court in either Parrington v Marriott or Lawson, and in Griffiths v Williams notice was limited to a parenthetical reference (Rose LJ: p n/a). However, specifically, acts of rape or other non-consensual physical sexual engagements typically fall squarely within the tort of battery which is defined as intentional, direct and unlawful – in this context usually meaning non-consensual – physical contact with another person (see eg Lord Denning, R v Chief Constable of Devon and Cornwall, ex parte CEGB [1982]: [471]; referring to Heuston 1977: 120).
However, in Parrington v Marriott it was not just two rapes that Hall J found Mr Marriott liable for at first instance but also sexual harassment over an 18-month period (upheld in the Court of Appeal). When Ms Parrington initiated her civil claim in 1994 there was no legal definition of harassment, and pinning it down to a tortious basis for liability was challenging (eg see Waters v Metropolitan Police Commissioner [2000]; and discussion in Conaghan 2002). Yet while the courts were grappling with the possibility of developing a common law tort of harassment (Khorasandjian v Bush [1993]; Burnett v George [1992]), Hall J’s finding of liability for harassment was upheld by the Court of Appeal, with no reference or explanation as to the legal grounds.
Similarly, in another civil claim for rape, Moores v Green [1991], Mrs Moores’ case was successful at first instance, and Griffiths J awarded her £7,500 in damages for ‘rape and the surrounding circumstances’, described as ‘other less serious matters of harassment’ (Balcombe LJ, p n/a). Also, in Griffiths v Williams the fact that the claimant was subject to sexual harassment for three years after the rape was a factor that went to justifying the level of damages awarded (Rose LJ, p n/a). At a time where there was, strictly speaking, no ‘tort of harassment’ (Patel v Patel [1988]), this is interesting. However, without the legal arguments being readily available this leaves only speculation, and the possibility that perhaps the claimants’ successes (at least at first instance – the Court of Appeal ordered a retrial in Moores v Green as new evidence had come to light) were more down to their own tenacity, clever barrister tactics and luck. Nevertheless, it is significant that the courts recognised ‘sexual harassment’ as a compensable harm, indicating that gender was a relevant dimension to the abuse of power which can be seen to tie sexual harassment to (inter alia) rape (Kelly 1988). Moreover, since these cases, there has, of course, been the enactment of the Protection from Harassment Act 1997 which offers a civil remedy (section 3). This welcome addition to tort law may be important in relation to future civil claims for rape given that these three cases – a significant number of those litigated in the higher courts – also involved sexual harassment.2
Rape myths and consent
Consent is a significant issue in Parrington v Marriott, Griffiths v Williams and Lawson. Similarly to distinguishing between lawful sex and rape (Sexual Offences Act 2003, section 1), the absence or presence of consent can draw the line between lawful and unlawful intentional interferences with a person’s physical and or mental integrity, as consent is a defence to each of the trespass to the person torts.3 Feminist critiques of consent are well known in the context of rape law, and much attention has been paid to the gendered underpinnings of the concept (Naffine 1994) and rape myths which influence ideas as to when, where and with whom women consent to sex (eg Estrich 1987 through to Temkin and Krahé 2008). With these myths far from women’s lived experiences of rape, those within and outwith the criminal justice system are often doubtful of and hostile towards complaints of rape, which contributes to maintaining the high attrition rate and low conviction rate (Kelly et al 2005; Temkin and Krahé 2008). Given the gender-based assumptions and stereotypes feminists have found harboured in the history of tort law, scepticism towards the way in which consent may be conceptualised and applied in the context of tort law is not unwarranted. Yet, perhaps surprisingly, almost all the reported civil claims brought for rape have been successful. This raises questions as to the courts’ interpretation and application of the consent defence in relation to the trespass to the person torts, and if – or to what extent – this differs from the legal tests regarding consent in relation to the crime of rape.
Similar to the position in the Sexual Offences Act 2003 (section 74), in tort law the claimant must have the freedom and capacity to consent or refuse consent (Scott LJ, Bowater v Rowley Regis Corporation [1944]: [479]). Traditionally, only fraud or (threats of) physical violence would vitiate consent (Latter v Braddell [1881]); however, in Freeman v Home Office (No. 2) [1984] the Court of Appeal recognised that the hierarchical context was a necessary component to consider when determining whether a prisoner freely consented to medical treatment. Nevertheless, the court concluded that the claimant had validly consented, reflecting, Joanne Conaghan argues, a tendency in the practice of the courts to rely on more limited conventional understandings (1998: 149). This seems to be borne out in the small body of case law regarding civil claims for rape. There are no traces of references to even formally recognised positions of trust and power. For instance, in Parrington v Marriott there is no evidence that the courts took account of the fact that the defendant was the claimant’s manager in determining whether or not the claimant freely consented. This exemplifies a failure of the courts to consider, at least to some extent, the ways in which power imbalances can influence, limit and shape individuals’ choices, and when this may render appeals to ‘free’ choice meaningless.
Better though is the courts’ approach as to the scope of the defence. They seem to have adopted the widespread view that only the claimant’s actual or ‘apparent’ consent – that is, where the claimant’s actions or behaviour gave the objective appearance of consent4 – will negate liability in trespass to the person, and that a defendant’s belief in consent, however reasonable it is deemed to be, will not suffice (Sedley J, Hepburn v Chief Constable of Thames Valley Police [2002]: [24]; Sir John Donaldson MR, Freeman v Home Office (No.2) [1984]: [557]).5 As Rose LJ said in Griffiths v Williams, the trial judge explained that the claimant need only prove that the defendant had sex with her without her consent, whereas in the criminal law it must also be proved that the defendant held no belief in consent (p n/a). This difference between the crime of rape and consent in relation to the trespass to the person torts may be one reason why claimants may have a greater chance of a civil claim succeeding, even after a criminal case has ended either before trial or without a conviction.
Tort law does not, of course, offer a means by which to challenge problematic ideas as to when it is ‘reasonable’ to believe in consent – instead, it provides a way to simply side-step the issue. Nevertheless, it is significant that it can provide legal recognition that sexual contact was non-consensual. The focus on actual consent emphasises that each individual has the right to be free from interferences with her or his bodily and mental integrity and freedom of movement, which is the starting point and basis of the trespass to the person torts (Lord Scott, Ashley v Chief Constable of South Sussex Police [2008]: [20]–[22]; Lord Donaldson, Re T (Adult: Refusal of Treatment)