Kiss and tell

This is, admittedly, just a little out of my usual field. ¬†However, I cover issues relating to human rights as part of work on principles in social policy, and privacy is also a vexed issue in social research, so the recent furore about privacy injunctions has piqued my interest. The central issue concerns a footballer who had obtained a “superinjunction” preventing a girl from revealing secrets about an affair, or even the name of the footballer from being revealed. There are two striking issues. The first is the issue of secret justice, which is no justice at all; the prospect of anonymous, unreported enforcement and legal sanction is repellent, and John Hemming MP was absolutely right to raise it in Parliament. The other issue is the interpretation of privacy by the courts.

Privacy is usually understood in one of two senses. The first, which is the interpretation given to privacy in legal cases in the USA, is that people have an intimate sphere of life which other people are not able legitimately to intrude on. The second, which is more prominent in social science, gives people control over information that relates to them. In the context of social research, the Australian National Health and Medical Research Council explains:

“Individuals have a sphere of life from which they should be able to exclude any intrusion … A major application of the concept of privacy is information privacy: the interest of a person in controlling access to and use of any information personal to that person.”

The idea of consent in research is based on the idea that information is private, and that it needs the consent of the person who reveals it – the research participant. It’s not usually the case, however, that researchers are asked to get the consent of everyone mentioned in research. That, by contrast, is what journalists are now being asked to do.

Let me offer a little scenario: a man’s girlfriend goes to his wife and says, “I am having an affair with your husband”. If the husband has an intimate sphere which no-one can impose on without permission, the girlfriend has breached it – admitting the girlfriend to intimacies is not a licence to reveal those intimacies later. If he has a human right to control the information, the girlfriend has breached it. I find it hard to believe that either outcome is what the advocates of privacy laws intend; privacy may be a right, but it does not follow that secrecy is. An individual may retain control over information only in so far as that information relates solely to his private actions. A couple, a group, an association, may control aspects of information that relate to that couple – but they exercise that control jointly, not severally, and if they do not agree, neither retains the right. If one partner in a couple wishes to reveal all, the right does not pass to the control of the other person. The attempt to curb revelations by those who want to “kiss and tell” may be many unpleasant things, but it is not a breach of human rights. The courts have got it wrong.

The law of rape

The Scottish Government have announced legislative proposals to reform the law of rape. In particular, they intend to make it inadmissible in court to raise the issue of whether a women was drunk. The problem with rape trials is that they often become trials of the victims rather than of the perpetrators; this proposal is a small step to help with that problem.

It is only, however, a very small step. The central problem with the law of rape is that the definition of the offence depends on the issue of consent, and so on the state of mind of the victim, rather than the actions of the perpetrator. As long as that remains true, it is inevitable that the victims will be put on trial. And the recent proposals to investigate rape as if it was murder will only make things worse: a more extended, detailed, thoroughgoing investigation and legal process will bend most victims until they crack.

There is an alternative. Rape is only part of a general class of serious sexual assaults. Many are at least as bad as rape. (This comment is likely to surprise people who think that rape means “very bad”, but some of these other actions are much worse, even if they typically carry a lesser sentence than rape itself. Unfortunately, I cannot explain the comment fully in a public forum – they are so appalling that I am not prepared to describe them explicitly. I can only suggest that people consult a law book and see what sort of thing is classed as “indecent assault”.) If the nature of the offence was redefined in terms of the general class of assaults, the issue to be considered in court should be whether or not the actions of the perpetrator (male or female) fell into that class – and, regardless of consent, physical evidence of force would stand as evidence of such assault.