I May Destroy You, Part 3: A study of sexual assault - Voyeurism, Revenge Porn, Youth Justice and False Allegations

Theo's Story

18 August 2020

This blog series examines some of the sexual offences encountered by the main characters in the explosive 12-part BBC series, ‘I May Destroy You’. This final instalment focuses on a character called Theo and the events that occurred when she was a youth, during her high school years.
 

Theo’s storyline – the facts

Theo attends school with Arabella (who was the focus of Part 1 of this series of articles) and Terry. On school premises (in a deserted building site), Theo consensually engages in sexual acts with a classmate called Ryan. Without Theo’s permission, Ryan takes a sexually compromising photograph of Theo on his flip-phone and immediately shares it with a friend. Theo notices that Ryan is taking the photographs and challenges him about it. Ryan also tells her that other boys took compromising photographs of her in the past and shared them without her permission. Ryan suggests that he could pay Theo to allow him to take better quality pictures of her on his mobile phone while they have sexual intercourse; an offer that Theo accepts.

Afterwards, Theo finds a knife, cuts herself and then attends class. Terry notices blood dripping down Theo’s thigh in class and draws everybody’s attention to her. Perhaps as a result of suffering the indignity of having her photograph taken in those circumstances without her knowledge, or the humiliation of being offered money by a classmate in exchange for sexually explicit photographs, Theo alleges that Ryan violently raped her at knife-point. This allegation becomes the subject of a scandal at the school. The boy to whom Ryan sent the intimate picture of Theo, approaches Arabella and Terry and shows them the picture. Armed with the photograph as evidence that Theo had falsified her allegation, Arabella and Terry are able to clear Ryan’s name.

What offence, if any, did Ryan commit?

Ryan may have committed two offences: the offence of “voyeurism” under section 67(3) of the Sexual Offences Act 2003 (‘SOA 2003’); and the offence of “disclosing private sexual photographs and films with intent to cause distress” under section 33 of the Criminal Justice and Courts Act 2015 (‘CJCA 2015’).

The voyeurism offence is committed if:

  1. A person records another person (B) doing a private act;
  2. He does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of (B)doing the act; and
  3. He knows that B does not consent to his recording the act with that intention.

Given that Ryan and Theo had sex on school premises, a question that arises is whether or not their sexual activity is considered to be a ‘private act’. Some guidance is given in the case of R v Richards [2020] EWCA Crim 95, in which the appellant was found with recordings of himself engaging in sexual acts with three women in their bedrooms. The issue at trial was whether or not whether there had been a ‘private act’ on each occasion which involved a reasonable expectation on the part of the other person of privacy from being filmed. The Court of Appeal stated:

Whether a person is doing a private act in a place which, in the circumstances, would reasonably be expected to provide privacy will depend inevitably on the context… […]There was a case for the jury to consider that this act of intimacy occurred in a place which, in the circumstances, would reasonably be expected to provide privacy from, for instance, a secret observer or a secret recording."

In this scenario, the context is that Theo took Ryan to a secluded area on the school premises - a building site away from passing students. It would ultimately be a matter for a jury, but it is arguable that in circumstances where a concerted effort was made to find an empty place away from prying eyes in which to engage in sexual activity, Theo would have had a reasonable expectation of privacy from being photographed; not just by other people but by Ryan also. The fact that he is taking part in the private act does not make it ok to film it.

The offence of “disclosing private sexual photographs and films with intent to cause distress”, formerly referred to as “Revenge Porn” (otherwise known as image based sexual abuse), is the act of sharing intimate pictures or videos of someone either on or offline without their consent. It has been a criminal offence in England and Wales since 2015 and is defined under sections 33-35 of the CJCA 2015. See our previous article here for a comprehensive summary of the legislation.

The criminal offence broadly has three elements which need to be proven:

  1. Disclosure of a private sexual photograph or film;
  2. Without the consent of the person depicted; and
  3. With the intention of causing that individual distress.

While there could be an academic discussion about whether in taking the money, Theo has consented to Ryan sharing the images, the circumstances make Theo’s acquiescence difficult to rely on. A more realistic reading of the facts make it clear that Ryan took a private sexual photograph and disclosed it (by forwarding it) to his friend, in the absence of Theo’s consent. The contentious issue will be whether or not he sent the image to his friend with the intention of causing Theo any distress. Section 33(8) of CJCA 2015 states that “A person charged with an offence…. is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure”. The prosecution would have to prove that Ryan specifically acted with the intention of causing Theo distress; it would not be enough to simply demonstrate that Theo was distressed as a result of Ryan’s inconsiderate behaviour.

Nowadays, it is rare to find a young person without their mobile telephone device in their hands at any given time. The trend is to record everything from pictures of meals to recordings of altercations and upload them to social media platforms, or to share pictures and recordings of daily experiences with friends. In these circumstances, it is increasingly important for young people engaging in sexual activity to understand and respect the private nature of intimate relations. Failing to respect the privacy of a sexual partner potentially can go beyond being insensitive or inconsiderate, to being illegal.

Would Theo be prosecuted for making the false allegation?

If, as in Theo’s situation, a person has made a false allegation of a sexual offence against another, the Crown Prosecution Service (‘CPS’) may consider charging that person with the common law offence of Perverting the Course of Justice.

Perverting the Course of Justice requires that an individual has intentionally done a positive act or series of acts which has a tendency to pervert the course of public justice. The course of justice starts when an event has occurred, from which it can reasonably be expected that an investigation will follow; investigations which could/might bring proceedings have actually started; or proceedings have started or are about to start.

There are a large number of factors that the CPS will consider before instigating legal proceedings of this nature, including (but not limited to):

  • The motivation behind the false complaint;
  • The length of time that the false complaint was maintained;
  • The consequences suffered by the person who was originally and falsely accused (such as whether or not they have had to spend time in prison on remand, while awaiting their trial, reputational damage, their vulnerability);
  • The age, history and maturity of all parties involved;
  • Whether the gravity and seriousness of making a false complaint was understood;
  • Whether the suspect has any mental health or learning difficulties.

In this scenario, Theo is a school girl and therefore a youth. In fact, until she reaches 18 years old, the law sees her as a child, no matter how grown up she thinks she is. The Youth Justice System (YJS) in England & Wales has the principal aim of preventing offending by children and young people. As such, The CPS is required to take great care in considering whether or not there is a public interest in prosecuting, and thereby criminalising, a child who makes a false allegation. Input from other agencies such as Social Services or Children’s Services would be sought to obtain a better understanding of the child’s background, circumstances and history before any decision is made. Our YJS system provides several options as alternatives to criminal charges being brought against youths, such Diversion or a youth caution. It may be that Theo’s behaviour is dealt with in this way. Her sexual vulnerability and the impact on her as a victim of “revenge porn” would also undoubtedly to be considered as a factor in deciding whether or not to pursue criminal charges against her.

For further information on the Youth Justice System, please see our Youth Crime - FAQS  page.

Whilst Theo may not necessarily face criminal charges and subsequent court proceedings, it is highly likely that she would have been subject to social repercussions at school; particularly given that all students became aware of the sequence of events. The stigma that would be attached to her actions would undoubtedly feel like a punishment in any event.

We see Theo in later years making a positive impact in her community. As with most children and young people, they grow out of the risky, impulsive behaviour that result in criminal conduct. For most it is just a matter of time; according to the science and statistics, the risky behaviour peaks between 14-17 years old and decreases as their frontal lobes fully mature at age 25. See this article  by Sandra Paul to explore the topic of criminalising children. Let’s hope Ryan grew up too.

Further Information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the Authors

Leena Lakhani is a barrister in our Criminal Litigation team. Her defence experience includes dealing with a wide range of offences, from motoring offences, public order and common assault to cases involving serious violence, sexual misconduct and dishonesty offences.

She brings considerable prosecution experience, having advised on and appeared in trials and hearings relating to serious violence, drug offences, firearms and fraud offences. As a result of her experience, she has an extensive understanding of all stages of a criminal case.

Sandra Paul is a partner in our Criminal Litigation team. She has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual misconduct. She works with clients in the UK and abroad, including allegations following the #MeToo campaign.

She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.

 

 

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