Careers Advice for Under-cover Operators

PC Huggable

 As the row over under-cover police having sex with activists rumbles on, the Usual Caveats says

prosecutors would decide whether operatives who had sexual relationships were breaking the law.

(source: Daily Mail Tuesday, Jun 25 2013)

This is worth watching because a series of recent cases has shown that obtaining consent by deceit may render the consent ineffective and leave the convicted person open to sanctions such as being on the sex offenders' register.   

The deceit in these cases was of a particular kind: pretending to be male to obtain sexual contact.

First a Scottish case in June 2013, that of  Christine Wilson.   Don't get side-tracked by the age- differences or  the gender identity disorder.  Both of these facets are important but what is being examined here is what constitutes deceit such that it can give rise to a criminal prosecution and conviction.

At a previous hearing, Wilson pleaded guilty to two charges of obtaining sexual intimacy by fraud and was put on the sex offenders’ register. This is a fraud case as it is Scottish law.

An earlier Scottish case in 2010, against Samantha Books was eventually dropped  by prosecutors when a witnesses refused to cooperate, leading another complainant to criticise the prosecutors.

Moving south of the border, in March 2012, Gemma Barker in Surrey used false male identities to have sexual encounters with girls.  She admitted two counts of sexual assault and one charge of fraud. 

Finally, in June 2013 the sentence against Justine McNally was reduced as she admitted six counts of sexual assault by penetration. Her listing on the Sex Offenders Register was reduced to ten years. (McNally is Scottish but the offence was in London, so the case was heard in Wood Green under English law).

As these last two are English law cases, they were tried as sexual assault.  Defendants have usually chosen to plead guilty so the points of law are still open to interpretation if another case happened to go to appeal.  Justine McNally's conviction was upheld but her sentence revised.

.......

Back to the police. I'm going to assume most of the personnel involved are men although there might well have been female under-cover(s) operators.  It is alleged that some of them engaged in sexual intimacy under false identities and for purposes other than those they claimed at the time.

The gender misrepresentation cases put down one marker for what will be regarded as making consent defective because it has been obtained falsely. Another is already unambiguously covered in legislation.  If the complainant had a mental disorder impairing choice such that they can be brought within the definition of  s.34 of the Sexual Offences Act 2003, then the person who deceived them can be prosecuted.  
 
A further restriction was defined in 2007 when Giovanni Mola was unable to argue he had consent in order to avoid a conviction based on reckless conduct (Scottish case).  He failed to inform a lover that he had HIV, thus impairing her ability to make an informed decision whether to have sex with him.  A summary of other cases is here

Prosecution of cases around transmission of HIV have abated as a matter of public policy; the emphasis has gone on to prevention as it was feared that the prosecutions were deterring people from seeking treatment. The policy remains controversial.  Opinion is split on whether agreeing to sex means agreeing to factors unknown, or whether it is a conditional consent depending on what is disclosed at the time.

Consenting to sex does not mean consenting to everything even in the ordinary course of events. There is a point at which an act may become abusive and outside the scope of consent.  Normally this is thought of in physical terms but it could be psychological.  But for ignorance that the person was married/had a disease/was a paid infiltrator, the complainant might not have agreed to sexual intimacy.  

It is argued that deception is justified in order to infiltrate organisations "such as environmental groups".  Fat lot of good that did.  Mark Kennedy should have been putting it about in the Climate Unit of UEA, or at least offering Chris Huhne a ride. He has failed to prevent the country being peppered with taxpayer-subsidised bird-mincers. 

As David Morris of the McLibel trial said when it emerged the co-writer of the leaflet which caused all the trouble was Bob Lambert, an undercover policeman, 

"All over the world police and secret agents infiltrate opposition movements in order to protect the rich and powerful...."

Look how well that went. McDonald's ended up paying lawyers millions of pounds, only half-winning a technical case and smashing their reputation.  Whether they asked for the Metropolitan police to act as political agent provocateurs has yet to be examined.