Complicity and Rape

The Court of Appeal Judgment

The Clarkson appeal judgment cited the 1882 precedent of Reg. v Coney, ⁹ which ruled that non-accidental presence was not conclusive of aiding and abetting. The case concerned an organised bare-knuckle fight with paying spectators. The court found both fighters guilty of assault occasioning actual bodily harm (despite their consent to the fight) and found several of the spectators guilty of aiding and abetting the assaults:

To constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting. It may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, or gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. ¹⁰

There are two broad exceptions to this: first, where the mere observer has a position of authority and a duty of care, such as a parent or doctor or police officer. When such people merely observe and fail to intervene (because, for example, they have been bribed to look the other way), they will be liable as accessories. ¹¹ The second exception, one that has proved controversial, involves very serious crimes such as terrorism, where separate legislation ¹² broadens the scope of complicity much further during the preparation of a terrorist act. The idea is that detecting and disrupting the preparations is so important as to justify police intervention based on less evidence and justify setting the threshold of complicity much lower.

In the original rape case, Clarkson, Carroll and Dodd had been convicted of rape on the grounds of being accessories encouraging the principals and of their conditional readiness to assist. ¹³ Here is part of the summing up to the jury of the original judge advocate:

You must be satisfied that they participated in the act, either by doing something with the intent of assisting the perpetrator, actually assisting him, or sharing his intent and the intent of others present that the offence should take place and encouraging, by their presence, by their preparedness, to go to assist, if necessary, the perpetrator and support him in a way that would encourage him to commit the offence. ¹⁴

In response, however, the Appeal Court stressed the importance of intention to complicity. It was not enough that one’s acts in fact encouraged the principal, it was not enough that the accessory was aware that his acts could or would encourage the principal: he had to have two intentions: (i) the intention to encourage the principal, and (ii) the intention that the principal be encouraged on his way to committing this particular unlawful act. ¹⁵

Megaw LJ concluded:

[the secondary party] might stay on the scene in the capacity of what is known as a voyeur; and, while his presence and the presence of others might in fact encourage the rapers [sic] or discourage the victim, he, himself, enjoying the scene or at least standing by assenting, might not intend that his presence should offer encouragement to rapers and would-be rapers or discouragement to the victim; he might not realise that he was giving encouragement; so that, while encouragement there might be, it would not be a case in which, to use the words of Hawkins J., the accused person ‘wilfully encouraged’. ¹⁶

There are a number of revealing choices of words here. The first is ‘voyeur’. This goes beyond mere curiosity about an unfamiliar situation or about new information; there is the element of arousal, and this involves a greater engagement with the proceedings than mere passive observation, and perhaps such engagement is strong enough to amount, if not to a full intention that the principals commit the rape, then at least to an endorsement of the proceedings. At any rate, it is more engaged than the curious high street shoppers are during the jewellery heist. What is interesting is that Megaw assumes that voyeurism is a wholly private experience, without any necessary correlative impact on the people being voyeuristically observed, and in this sense falls short of intention. This is the main assumption I want to challenge. My challenge draws from the spirit of criminalising voyeurism in s. 67 the Sexual Offences Act 2003; importantly, voyeurism is illegal even when the victim is unaware of it.

Second, Megaw assumes that lingering voyeurism does not come close enough to an intention to encourage or assist, and therefore this undermines any accusation of complicity. Certainly, the three observers themselves would deny that they ‘wilfully encouraged’ or intended anything; they merely happened on and remained at an event that was taking place anyway. In terms of sine qua non causality, the rape would certainly have taken place if the observers had not been there.

Third, Megaw allows the possibility that the observers might not even have realised that they were giving encouragement to the rapists and discouragement to the victim, even if they in fact were. Perhaps they were so wholly absorbed by the voyeuristic arousal that the effect of their presence may simply not have occurred to them, just as it may not have occurred to them that their non-intervention and non-reporting was shameful. This has to do with the larger question of subjectivity and objectivity in the criminal law, and the degree to which the lack of awareness, of sensitivity, of imagination and of courage should be culpable. I will return to this below.

Rape and Humiliation

At the time of the case (1971), the definition of rape was contained in s. 1(2) of the UK Sexual Offences Act 1956: ¹⁷

A man commits rape if—(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.

I will take it as uncontroversial that Clarkson and Carroll clearly understood that the victim did not consent, they understood that the crime of rape was taking place, but they considered it none of their business. However, I want to suggest that the above legislative definition is incomplete and makes an important assumption about the offence of rape, and that concerns the offender’s motivation. I am assuming that most rapes are not about sexual gratification, but about power, domination, revenge, misogynistic hatred, humiliation, or about masculine solidarity, and the assertion or restoration of masculine pride (for simplicity, I will henceforth summarise these various motivations under the concept ‘humiliation’).

Humiliation depends not only on submission to certain typically humiliating acts; but crucially it depends on being witnessed, either at the time of the act or later on a video recording; at the very least, humiliation depends on the acts being later described. Although one can feel shame on one’s own and without anyone ever discovering one’s shame, humiliation essentially requires witnessing and publicity. The horror of rape is not only the violence and the pain and the degradation of the act and the contemptuous assault on the victim’s sexual identity, it is also the fact that at least one other person—the rapist—has witnessed such degradation. And here’s the point: the humiliation is then compounded if a third party is observing, even if the third party does not take part in the rape itself, does not assist or encourage the rape, but ‘merely’ observes.

It is commonplace to say that rape victims are doubly humiliated: first by the rape itself, and second by other people’s subsequent reactions once they hear about it. ¹⁸ It is hardly surprising that many victims choose not to report it to the police. Then there is a possible court appearance, being cross-examined by skilled defence lawyers, whose strategy is so often to argue that the consent of the alleged victim could be inferred, for example, by ‘what she was wearing’, by her ‘flirtatious behaviour’ that evening and by her ‘past promiscuity’. In addition, since the crime is usually committed in private without observers, then the worry is that it will boil down to the rapist’s word against the victim’s.

The use of the term ‘sexual assault’ might suggest that rape is just another kind of assault, but it is important to remember that sexual offences are generally seen and classified as a very separate category of crime. As Gardner and Shute ¹⁹ put it, rape is sui generis. In order to demonstrate this, they ask us to imagine a woman being raped when unconscious. She then regains consciousness, but has no memory of anything untoward, and no pain or damage on her body. Despite the woman’s present physical condition, Gardner and Shute argue that we would still want to say that the rape was an egregious violation, and that it would make sense for the victim to feel deeply humiliated if she learned of it. This is much more serious than theft or assault of an unconscious victim. An assault is much more clearly limited to the body, and when I awake I can more plausibly speak about my body being attacked instead of me being attacked. In contrast, rape is a direct violation of the victim’s identity, and a direct mockery of the victim’s intimate private relationships. While theft involves real harm, the stolen property is physically separate from the owner and often (in principle) recoverable or replaceable. No such recovery is possible after rape. If rape is to be compared to any other crime, it would be not to assault or theft but to lynching and other hate crimes, which are similar expressions of power to remind people ‘of their place’. ²⁰

I have been distinguishing between the ‘mere’ observation of rape and the high street pedestrian’s mere observation of the jewellery heist, and I have been arguing that the crucial difference is the capacity for an observer, in the first case but not the second, to compound the victim’s humiliation. There might be other situations where humiliation could also be compounded: racist verbal harassment, a punishment beating and non-sexual assault in front of one’s peers. More generally, it could be argued that the crime of murder is such a serious moral violation that it too is essentially humiliating, although here it is confusing if the victim does not survive to be humiliated; in that sense it might be better to describe the victim as defiled, such that the defilement continues after death. In addition, assault and murder and violence more generally can be just as arousing as sex, and this would support widening my argument to include these other acts. But for the moment I will restrict myself to the circumstances of Clarkson.

Observers as Participants

Because of the nature of humiliation, I contend that there is no such thing as a mere observer of a rape. In this context, observation—and arousal—is wrongly conceived as the passive absorption of images or the harmless gathering of information. Instead, it is an activity; and it is freely and knowingly embarked on by the observer. Even if Clarkson and Carroll stumbled on the scene accidentally, they chose to remain, they evidently allowed themselves to become aroused, and to that end they voluntarily contributed to the humiliation. To be raped by one man is bad enough; to be raped by four much worse—and to be raped by four with three further men watching is even worse again.

I am drawing on Sartre’s famous example of the peeping Tom. ²¹ He kneels in front of a door on a landing in a stairwell of a block of flats. He looks through the keyhole at a couple having sex, inside, unawares. While the peeping Tom is alone, he controls the situation, he chooses where to look and what to make of the world; right now he is wholly absorbed by the couple’s sexual acts. Suddenly, however, he hears footsteps on the stairs; someone is coming up, someone who is bound to observe the peeping Tom peeping. The man becomes aware of himself through the gaze of the other, becomes aware of himself as a peeping Tom and feels ashamed. Sartre’s point is that he does not feel ashamed until he can imagine himself observed doing this lewd thing. (The peeping Tom does not even need to be observed—the footsteps are still only sounds.)

The 1956 law defined rape with reference to (i) certain physical acts, carried out intentionally, (ii) while the perpetrator is at least reckless about the possibility that the victim might not be consenting and (iii) the absence of the victim’s consent. However, this definition does not contain the full wrong of rape, since the essential humiliation is magnified by the number of pairs of eyes watching it and being aroused by the sexual act and the violence, even when no explicit encouraging sounds or gestures are performed. (The 2003 Sexual Offences Act changed many aspects of the 1956 Act, but not in ways that are relevant to this point.) In contrast, when three bystanders watch the jewellery heist on the high street, this additional observation adds little to the shop owner’s experience of the loss. For the shop owner’s suffering is one of shock, outrage, resentment, but not humiliation. This means that Clarkson and Carroll did encourage the rapists by their not-so-mere presence, they did contribute to the wrong caused to the victim, they did participate in a rape, and their appeal should have been rejected. ²²

However, there is still the question of intention. For complicity, the English law requires that the encourager somehow endorse the offence. The Clarkson court of appeal stated that Clarkson and Carroll did not have a mens rea that came sufficiently close to intention or endorsement. The defendants were aware that this woman was being raped, that she was going to be raped anyway, and they were simply indifferent to her fate; moreover, they had no duty of care toward the woman, and so no obligation to attempt to prevent the rape or to inform a superior.

But again, it depends how we define rape. The intention of the principals was not only to engage in sexual intercourse without the woman’s consent; it was also to dominate and humiliate. And therefore I contend that the three aroused observers intentionally chose to participate in this humiliation, in this part of the act. Moreover, I would suggest that the experience of the rapists themselves was heightened by the humiliation being compounded in this way; the element of masculine self-assertion is always multiplied by the group dynamic of performance and solidarity. It is not just that the rapists drew ‘permission’ from the inactivity of the observers, they probably welcomed the extra element of performance. (In this sense, the gaze of Sartre’s other can also promote as well as demote one’s self-concept.) In addition, we have to remember that rape takes a certain amount of time, and in this case the rapists were taking turns. So the observers’ mere presence not only encouraged the rape that they stumbled across, but the subsequent rapes too: each new rapist’s intentions were partly validated by the element of performance for the gallery of their aroused peers. The problem is not so much that Clarkson observed, but that he continued to observe, during rape after rape after rape; he only had one reason to remain, without any mistake about what he was observing. The only way for Clarkson and his two friends to avoid charges of complicity, I would suggest, would have been for him to physically leave the premises immediately after accidentally discovering what was going on. Without reporting it, such a departure would still have been moral cowardice, but at least it would not have amounted to complicity.

There is a separate question about whether foreknowledge of a serious crime should affect culpability; that is, if the rape had been planned for a time and place, and Clarkson had known about it in advance, and then gone to the advertised location for the purpose of observing. The scheduling of observation might be enough to inculpate or at least to aggravate; but the main question would remain whether he actively encouraged by word or gesture.

It is true that certain circumstances may also reduce the observers’ complicity: if they are under duress from the rapists, for example; or if they are planning to linger long enough to gather evidence for later testimony against the rapists. There was no evidence of either circumstance in the trial record, and presumably the burden of presenting such evidence would have to lie with the defence.

It might be objected that my proposed expansion of complicity to include mere observers who were not making any overt encouraging noises or gestures risks including other observers who were not even present at the crime. Imagine if Clarkson had watched the rape from another room through a one-way mirror or CCTV feed, and the victim was aware of this. Indeed, the CCTV link might be made available as a live stream over the Internet. In one sense, the victim’s awareness of being observed by a faceless stranger beyond the wall is worse than being observed by someone here and now. And surely the knowledge of being watched by an untold number of Internet users would be worst of all. There is a question of how far it is practical to apply the law, so let me just consider the CCTV Clarkson. Intuitively I would want to morally criticise him for his voyeurism, and perhaps for his failure to notify the authorities, but I would stop short of holding him legally complicit. I would argue that the element of physical presence is still crucial for the process of ‘full’ humiliation. Part of the humiliation lies in being presented with the aroused faces of the observers. Part of the humiliation lies also in first beholding a physically present observer, and daring to hope for help or intervention of some kind and being further discouraged by seeing only cruelty and indifference. ²³

Other Ways of Holding the Observer Liable

I have been assuming that Clarkson, insofar as he had no duty of care to the rape victim, had no legal duty to prevent the rape, and no legal duty to inform anyone (either his military superior or the military police) about the rape, either during or after. This presents a question. I have been arguing that Clarkson should have been held liable for complicity to rape. Under the Accessories and Abettors Act 1861, the accessory is to be punished for the same thing as the principal, so this would mean charging Clarkson with rape, as the Court Martial (the court of first instance) had done. At the same time, the appeal of the third ‘observer’ Dodd was rejected because there was sufficient evidence that he had directly assisted the rape, and so he was then charged with rape as well. Given my argument in this article so far, am I therefore saying that Clarkson’s mere aroused observation was just as culpable as Dodd’s direct assistance? Perhaps the Court of Appeal’s reluctance to charge Clarkson stemmed from a desire to distinguish the two kinds of complicity, since the law at the time was straightforwardly binary: either Clarkson would be charged with rape or with nothing at all, and it would seem that Dodd had simply done more than Clarkson.

As such, this article’s primary argument—that Clarkson ought to have been liable under the existing laws at the time—could entail a secondary argument for changing the law to allow greater and lesser degrees of complicity, based on the causal contribution to the principal’s crime. According to a new law, Dodd would be held liable for ‘full’ complicity in the rape and punished as if he had been one of the perpetrators, while Clarkson would have been liable for ‘partial’ complicity and punished less severely. Such a proposal has been made before, most notably by Dressler, and I do not have anything new to say in its favour. ²⁴ However, I would resist Dressler’s use of the word ‘trivial’ to denote the lesser form of complicity—for I still believe there is nothing trivial about Clarkson’s compounding of the victim’s humiliation. But there would seem to be a relevant distinction between Clarkson’s relatively detached engagement and Dodd’s ‘hands-on’ engagement in the crime. This would be a matter for more detailed discussion, but suffice to say that differentiated complicity laws are usually rejected on the grounds of introducing too much complication and as undermining the deterrent effect of the law: by holding all accessories equally liable as the principal, the message is clear that one should avoid any complicity at all with a crime as serious as rape. At any rate, in the absence of any new law of differentiated complicity, I would argue that someone who did what Clarkson did should be held fully complicit.

More generally, of course, the Clarkson case could be used as part of an effort to introduce new legislation. One new offence could be ‘knowingly causing additional humiliation’, for example. Another would be a ‘Bad Samaritan’ law that would penalise those who fail to assist a victim or at least report a crime when they find out about it before, during, or after. ²⁵ This might be one ‘solution’, although I think it would fail to distinguish sufficiently clearly between the High Street jewellery heist and the gang rape: Clarkson was not so much guilty of detached inaction, but rather of overzealous engagement in a criminal act. With this difference in mind, it is worth saying one more thing about the context of the Clarkson gang rape, that it took place on an army base.

The Army Base Context

Even if the above argument fails, and the ‘mere observers’ of a rape are not liable, I suggest that it is relevant that the offence took place on a British military base; and what’s more, a base in a foreign country (Germany). This fact was not considered relevant at all in the judgment, but I think it is. The army base is an almost entirely all-male environment, where soldiers are being systematically and collectively trained in acts of lethal violence and maintained in a state of excitable readiness to deploy such violence at short notice. In addition, this base is a foreign country, where the soldiers do not speak the language, where their presence and alcohol-fuelled loutishness is probably resented by the locals, and these facts further isolate them. They are away for long periods of time from the restraining influences of wives, girlfriends, mothers and other female family members. ²⁶

Because of these influences, there is a consequentialist argument for applying the law with even greater thoroughness, and for widening the scope of complicity even further, than in a domestic British context—and this greater thoroughness would be well publicised as a deterrent. The primary beneficiaries would be the German women working on or near the military base; but presumably the British women working on the base would also be more vulnerable than their peers working on military bases in Britain, and certainly more than British women in normal British urban contexts.

In broadening complicity in the manner I am suggesting, we are therefore shifting our understanding of complicity from being based only in the mental states and physical actions of the observers themselves (under general descriptions, regardless of context), to being based partly on the increased vulnerability of a clearly identifiable group, and on the ‘incitement’ of the discourse that pervaded the isolated army base environment. I would suggest that the Court Martial (the court of first instance) understood this context well, and this understanding supported their conviction of Clarkson and Carroll, a conviction which was then overturned by the civilian Court of Appeal who understood this less clearly.

The occurrence of the crime on an army base made this a particularly egregious mistake, I would maintain, but the army base context is not necessary for the general point I have been trying to make about humiliation and complicity. In terms of context, there is one last point to make. In the early 1970s, feminism was only just beginning to gain currency and certainly would not have made its way very far into the military barracks. It is fair to say that even soldiers would be more sensitive nowadays to the rights of women to equal respect and to the importance of consent in sexual intercourse, especially since women have begun serving combat roles in the British army. ²⁷ However, my criticism has not been about an obscure case of 45 years ago, but of a case that could still take place today.