Pre trial cross-examination of sexual offence complainants
The purpose of the guidance is to assist CPS lawyers and Police Officers to make charging decisions in relation to such offences. The guidance provides a clear re-statement of the focus of such prosecutions:
“The CPS focuses on the prosecution of those who force others into prostitution, exploit, abuse and harm them. Our joint approach with the police, with the support of other agencies, is to help those involved in prostitution to develop routes out.”
Perhaps the most notable inclusion in the CPS guidance is the interpretation of the legislation which could be used to criminalise “sex for rent” arrangements. The guidance considers that a person who enters into an arrangement to provide accommodation in exchange for sex could be committing the offence of causing prostitution for gain contrary to Section 52 of the Sexual Offences Act 2003. This is a novel and creative interpretation of the legislation.
An offence contrary to Section 52 of the Act is committed where a person:
“Gain” is provided with a wide definition as:
As there is no specific criminal offence which targets the behaviour of “sex for rent,” the CPS has tried to provide a broad interpretation to the existing legislation in order to find a way of prosecuting this behaviour as a criminal offence. However, by doing so, this requires the person receiving the accommodation to be given the legal definition of a “prostitute”.
Whilst the CPS guidance is creative, it is questionable as to whether there will be any successful prosecutions relating to “sex for rent” arrangements under the existing legislation.
Firstly, it does not appear to have been parliament’s intention to criminalise this sort of behaviour when it introduced the legislation. As the CPS guidance itself acknowledges:
“As the legislation is designed to address exploitation, there are potential difficulties in prosecuting arrangements where the element of exploitation is or may be missing; for example, a ‘sex for rent’ arrangement, which developed following a suggestion made by the tenant or prospective tenant. Such a scenario would call into question whether the landlord had ‘caused’ the tenant to become a prostitute. Similarly, there may be cases where the arrangement was discussed and agreed freely between two adults with full capacity in circumstances where there was no significant financial and/or power imbalance.”
Secondly, adapting the current legislation means that the language of the statutory offence has become strained to criminalise this behaviour. It is questionable whether the law is sufficiently certain or clear to be used in these circumstances. As a consequence, it is likely that any prosecution for sex for rent arrangements under this legislation would be rigorously challenged.
Finally, it may come as a surprise that for a conviction to be secured, the prosecution would be required to prove that the tenant “became” a “prostitute” as a result of the arrangement. This requires the prosecution to establish causative behaviour on behalf of the suspect. Presently (although subject to academic criticism), the prosecution would need to show that the tenant had never been engaged as a “prostitute” before and that the suspect knew that the tenant had never worked as a prostitute before. This would leave a vulnerable person, who has been subject to a sex for rent scheme previously, with few safeguards.
It is clear that the CPS believes that this behaviour is prolific enough to necessitate the amendment of their legal guidance. But, while well-intentioned, it is questionable whether the adoption of Section 52 is a sufficient safeguard and, if it is, whether the cost of that protection – the finding that a complainant is a “prostitute” - is too great for an already vulnerable person to properly bear.
Should you require any further information on the issues raised in this blog please contact our criminal litigation team.
Nick Dent is a Senior Associate in the criminal litigation team with experience in a broad range of general and white collar crime cases. He has significant experience at handling criminal cases from the interview under caution to the conclusion of a case. He frequently advises individuals who are under investigation or immediately following their arrest and is acutely aware of the emotional distress and pressure that this can entail.
Matthew Hardcastle is an Associate in the criminal litigation team with experience in cases involving general and white collar crime. He has significant experience of advising clients during interviews under caution both following an arrest and during a voluntary attendance. Matthew’s experience includes advising high profile individuals and advising in matters which attract significant media interest.
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