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Lost out of Care
Why liberalising the law on sexual offences will damage children
© The Christian Institute, April 2000
“...we have necessarily heard some evidence about others who were on the fringe of the care system, that is, children who were later committed to care and youths who had recently been discharged from care. In our judgment, the perils for such persons are as great in this respect as for those actually in care...
We
draw the attention of Parliament also to the abuse suffered by B
between the ages of 16 years and 18 years, in circumstances which
appear to have made him question his own sexuality for a period.
Much of the later abuse was not inflicted by persons in a position
of trust in relation to him and there can be no doubt that he was
significantly corrupted and damaged by what occured.”(1)
| The Waterhouse Tribunal |
Contents
The Campaign for Homosexual Equality
The Government's Response to Waterhouse
The Sexual Abuse of Boys Over Sixteen
The Vulnerability of 16-18 year old boys
The Government's Proposals : Age of Consent
The Sexual Offences (Amendment) Bill
The Existing Legal Protections
Age of Consent Catches Abusers
Complacency About Sex Offences
The Government's Proposals: Abuse of Trust
Origins of the Abuse of Trust Offence
The New Abuse of Trust Offence
The Abuse of Trust in North Wales
Adults Should Not Have Sex with Children
The Dangers of Anal Intercourse
Stopping Adults having Sex with Children
Using a Constitutional Reserve Power for Gay Rights
Appendix 1 : The Government Statement Tuesday 15th February
The North Wales Child Abuse Inquiry has uncovered decades of abuse by men against boys in children’s homes. Significantly the Chairman of the Inquiry, Sir Ronald Waterhouse, has made very direct comments in his report about the dangers of abuse to children after they leave care or before they enter it. He argues that the dangers to them are just as great as to those children who are in care.
The inquiry has uncovered clear evidence that sexual abuse by men led young boys into homosexual experimentation. The report talks clearly about such boys being significantly corrupted and their sexuality confused.
The scale of the abuse uncovered is quite simply staggering. What is even more shocking than the appalling evil meticulously detailed in the Waterhouse report, is the news that there are now some 32 similar police investigations underway around the country. Some of them are on a much bigger scale.
Just as all this is happening, and with remarkable determination, the Government is pressing ahead with its demand to reduce the homosexual age of consent to 16. In response to the Waterhouse report the Government is taking many positive steps to improve the delivery of care for children. But at the very same time it is taking away from them a key protection of the criminal law.
It is clear that the Government’s new safeguards (to be introduced in the same Bill that reduces the age of homosexual consent) would not have protected many of the victims of sexual abuse in North Wales.
This report considers the evidence of the Waterhouse Report in detail and questions what the Government is now proposing for young people, boys and girls. Any right thinking person who studies the report cannot help but be overwhelmed by a deep sadness - sadness which also turns to anger that such tragic events could ever have taken place in a civilised society.
|
Colin
Hart 31st March 2000 |
The
Waterhouse Report
The report by the Waterhouse Tribunal catalogues two decades of
sexual and physical abuse of youngsters in children’s homes
in North Wales. The tribunal heard allegations that up to 650 children(2)
were abused. It looked at 29 residential homes and a further 15
foster homes in Clywd and Gwynedd.(3)
The inquiry concluded that in Clywd’s local authority homes: “Widespread sexual abuse of boys occurred in children’s residential establishments in Clywd between 1974 and 1990. There were some incidents of sexual abuse of girl residents in these establishments but they were comparatively rare.”(4)
The local authority homes most affected by this abuse were (1) Bryn Estyn where Peter Howarth and Stephen Norris “sexually assaulted and buggered many boys persistently over a period of ten years” and (2) Cartrefle where Norris also abused boys over a six year period.(5)
In
private residential establishments, most particularly at
Bryn Alyn, there was also “widespread sexual abuse, including
buggery, of boy residents... sexual abuse of girl residents also
occurred to an alarming extent.”(6)
In Gwynedd the tribunal did not receive “acceptable evidence
of any persistent sexual abuse in any of the local authority homes.”(7)
In private homes “There were some isolated incidents of sexual
abuse...”(8) The report highlights how the
complacency and administrative incompetence of social services departments
led to the abuse being undiscovered for so many years. The report
praises the victims of abuse for their courage in coming forward
with evidence. The report also singles out for praise a social worker,
a journalist and a councillor for their heroic efforts in exposing
the abuse.
Top
Not
Just an Isolated Case
It is understandable that public concern has focused on Bryn Estyn
and Bryn Alyn because of the number of victims, the persistence
of the abuse and the positions held by the abusers.
The report comments: “But they should not be regarded as unique or even special cases. The number of large children’s homes has now diminished substantially but, in our view, the lessons to be drawn from the histories of both the establishments are of wide significance and apply to a broad range of institutions providing accom-modation for children and young persons.”(9)
The scale of the problem is further illustrated by the fact that one of the staff involved in setting up the remit of the Inquiry was himself convicted of abusing children. Derek Brushett was Deputy Chief Inspector of Social Services at the Welsh Office. He was recently sentenced to 14 years imprisonment for serious sexual offences and for physical abuse of children.(10)
Even before the Waterhouse report had been published, other police investigations had been launched around the country. In some cases the on-going investigations concern many more cases of abuse than those in North Wales. Sir Ronald Waterhouse QC, chairman of the tribunal, states in his report:
“It is common knowledge that, since this tribunal was announced, there have been widespread investigations into the alleged abuse of children in care in several parts of the country on lines similar to that of the last North Wales investigation.” (11)
The Government have stated that in England alone there are 32 ongoing police enquiries into child abuse. A minister has admitted “the situation in England is very serious”.(12)
At the end of 1998 Scotland Yard launched Operation Middleton to enquire into child abuse allegations in more than 20 children’s homes in Lambeth from 1974 to 1994 . The Metropolitan Police believe that there are up to 200 victims of abuse in this enquiry.(13)
On 21 February 2000, police in Manchester announced that Operation Cleopatra had uncovered 250 suspects as a result of an enquiry into child abuse covering allegations over a 40 year period in 70 local authority homes.(14)
Operation
Care in Merseyside is on a far larger scale than the North Wales
scandal. Police are investigating allegations of abuse in 84 homes.
Already 20 men have been jailed.(15)
Top
The
Campaign for Homosexual Equality
The most controversial claim made before the tribunal of inquiry
was that prominent people in North Wales had been involved in an
organised paedophile ring. The tribunal found no evidence for this
but did accept that there was an active paedophile ring operating
in the Chester and Wrexham area.(16)
The tribunal considered the allegations against members and officers of the Chester Branch of the Campaign for Homosexual Equality (CHE). One witness, known simply as ‘B’, claimed that he was taken to a meeting of the CHE and to homosexual clubs and parties where he was abused. Even the convicted paedophile, Cooke, claimed that the CHE was a “pick up thing” or “the most vile organisation ever thought of”.(17)
The tribunal accepted B’s evidence that “during the period under review, a significant number of individual male persons in the Wrexham and Chester areas were engaged in paedophile activities.”(18)
The tribunal concluded that “Whilst we have no reason to doubt the evidence given to us by some office holders of the Chester CHE that precautions had been taken to prevent abuse of the organisation, it is clear to us that some of its less reputable members or habitués saw it as a useful agency for identifying and contacting potential victims.”(19)
The
tribunal only considered evidence relating to the Chester Branch
and stressed that nothing it said about the CHE carried any imputation
against the wider organisation.(20)
Top
| The Story of Witness B(21) |
|
Stephen Messham, 37, is the son of an alcoholic steelworker. As a child, Stephen was beaten regularly by his drunken father. A teacher eventually called in social services and a court order was made in respect of Stephen. He went to live with his grandmother but there came a point when she could no longer care for him. On August 2, 1977, he was sent to Bersham Hall, a ‘care’ home just outside Wrexham. Stephen says he was sexually assaulted in his first week. “I’d been beaten up by some of the bigger lads,” he told the Daily Mail, “I was crying and I was taken to an office. A member of staff started comforting me. That was how it was done. It would start with a cuddle. Then they would abuse you.” Not surprisingly, his behaviour became very disruptive. He rebelled against authority and at the age of fourteen was moved to “the Colditz of care” – the now notorious Bryn Estyn children’s home. He says once there, he was given a number instead of a name and told that any bad behaviour would result in a brutal beating. During his traumatic stay at the home, Stephen says he was abused over 80 times by more than 50 people – only some of whom were in a direct position of trust. At weekends, Stephen and other children would regularly find Gary Cooke, a care worker from another home, waiting for them at the gates. On Sundays he would take them to a near-by hotel where Stephen says up to 20 other men were waiting for them. One of the boys who was regularly taken to the hotel was among twelve victims of abuse in the North Wales scandal who later killed themselves. At
the age of 16 Stephen ended up staying in a bungalow at Mickle
Trafford in Cheshire. He alleges that homosexual orgies occurred
there where he was subjected to regular abuse. The tribunal
states: Stephen moved to a series of other homes until his 18th birthday on December 25, 1980. But the abuse continued even after he left care. Stephen says Cooke was the worst abuser. Even before Stephen went into care he says he had already been abused by Cooke. Stephen attended the army cadets at the base where Cooke was an instructor. Stephen said he was abused by Cooke half-a-dozen times before he went into care, where Cooke then abused him again.(23) Stephen said: “He was evil. He’d use anything on you. And he would take photographs.” Over the years Cooke had taken pictures of around 30 children who he had abused. It was to be his downfall. Stephen tried to tell his story to policemen but they did not believe him. He even tried telling the local press, but his letters were intercepted. In the end, he took matters into his own hands. He broke into Cooke’s home and stole copies of the photographs. He delivered them straight to the police and in 1980 Cooke was sentenced to five years imprisonment. The distress and pain continues to be a life sentence for Stephen. He has attempted suicide many times. Three of his friends who were also abused by the same group have since ended their own lives. After one of his own attempts he awoke to find a young nurse showing him the kind of loving care he had needed all his life. They later married and had a daughter. But just when Stephen thought things were looking up, his wife killed herself while suffering from post-natal depression. All
that trauma and anguish is now channelled into a self-help
group which he set up. He helps and campaigns for other survivors
of the abuse. He was instrumental in encouraging 38 victims
to come forward and give evidence to the North Wales tribunal.
His story is not unique. There were many, many more abused
at all ages both in and out of care. |
Lives
Ruined
Sexual abuse can cripple people socially for years and reduce their
chances of forming successful adult relationships and a lasting
marriage.
The abused young people in the report were profoundly affected into their adult life. As one NSPCC spokesman said: “Sadly some could not face coming forward and talking about those experiences, and some could not because they are dead - we believe 12 people have committed suicide.”(24)
It is not known how many hundreds of victims of abuse are still living. Various police investigations were carried out before the inquiry and there had been some successful convictions. The inquiry considered all the 3,500 statements gathered by the police(25) during the course of their own investigations. These statements revealed that about 650 former children in care had made complaints of abuse “of varying gravity”.*(26)
The tribunal made their own public requests for complainants to come forward. They also followed up a random sample of 600 former residents of children’s homes. (27) In all 264 witnesses gave oral evidence to the tribunal and there were 311 written submissions. (28) Day after day witnesses recounted their story in the witness box. The horror of reliving the abuse meant that 121 witnesses needed counselling. Some witnesses were so shaken that they were admitted as emergency admissions to a psychiatric hospital.(29)
One witness said he had “suffered repeated assaults and buggery during a short stay at Cartrefle of less than three months in 1987. Oral sex and buggery had occurred on numerous occasions in his bedroom...This witness said that Norris was wrecking his life psychologically.”(36)
| Quotes from the Report: |
“Like Howarth... [Norris] bears an overwhelming responsibility for disfiguring the lives of so many children in his care in pursuit of his own sexual gratification.”(30) “[Allen] inflicted untold damage upon a large number of residents and, in many cases, distorted their subsequent lives.”(31) “The result is that the lives of at least a score of children, already emotionally and behaviourally disturbed, have been seriously and permanently disfigured.”(32) “After G left Bryn Alyn he went to London and slept rough for about 12 months, earning money as a rent boy. He then moved to Amsterdam for 17 years... and he attempted to take his own life on several occasions.”(33) “Oral witness B [not Stephen Messham]... then served in the Army for 5 years but he suffered three breakdowns later and had tried to take his own life, all of which he attributed to Ryan’s sexual abuse of him.”(34) Norris,
was convicted of “three offences of buggery, one of
attempted buggery and three indecent assaults involving
six former Bryn Estyn boys.”(35) |
Confused
Sexual Identity
The report shows how abused boys became confused about their own
sexuality and even began homosexual experimentation themselves.
“The consequences of the abuse by Howarth on his victims were
immeasurable and remain so. The lives of these already disturbed
children were grossly poisoned by a leading authority figure...
They felt soiled, guilty and embarrassed and some of them were led
to question their own sexual orientation... their self-respect and
ability to look forward to the future have been shattered.”(37)
The tribunal specifically highlights the case of B (Stephen Messham) who suffered multiple abuse: “Cooke abused him sexually on about half a dozen occasions before he went into care, at a time when he did not know what was right or wrong and when he felt that he could not tell anyone about it.”(38)
The tribunal makes it clear that B felt he was confused about his sexuality because of the abuse he suffered: “he told us frankly that there was a period in his youth when, because of the persistent sexual abuse to which he had been subjected, he began to question his own sexuality.”(39) In another example Noel Ryan, a houseparent at Clwyd Hall School “confessed to serious offences against a total of 17 boys over a period of about ten years”.(40) One witness, D, claims that Ryan buggered him on about 40 occasions.(41)
Again, the report highlights the victim’s view that the abuse resulted in periods of confused sexuality: “D said that he had found it extremely difficult to cope with adult life as result of the way in which he had been treated as a child. He had at times been sexually confused and even today felt more comfortable in the company of gay men”.(42)
In a further example, Norris forced one boy to commit homosexual acts with his room-mate. The boys subsequently committed buggery on each other when Norris was not there. One said they did this “because of what Steve Norris was doing to us I used to think that was the way I should behave.”(43)
At Cherry Hill Community Home boys were found to be committing homosexual acts with one another.(44) After further investigation it emerged that one of the boys had a history of being sexually abused and another claimed to have been involved with two males.(45)
The
Child Protection Team Manager admitted that the behaviour was “both
totally inappropriate and illegal”(46) but
the tribunal states that “discussion was bedevilled by misguided
emphasis on the question whether the boys’ conduct had been
‘consensual’”.(47)
Top
The
Abused Become the Abusers
It is common for abusers to have a history of being abused themselves.
This cycle of abuse is illustrated in a report by the National Association
for the Care and Resettlement of Offenders (NACRO). The report states:
“Most child sexual abusers were themselves abused as children
(70% in a recent Home Office study of participants in sex offender
treatment programmes). However, the majority of abused children
do not themselves go on to become abusers.”(48)
The Government’s Children’s Safeguards Review was set up at the same time as the Waterhouse Tribunal. This review considered the effectiveness of safeguards introduced by 1989 Children Act and was conducted by Sir William Utting. The report commented that some children “will become practitioners in the abuse wrought upon them.”(49)
The report noted: “Children abuse each other too. Possibly half the total of abuse reported in institutions is peer abuse.” (50) It noted that one witness to a recent enquiry said that “Instituti-onalised sexual abuse to the point of buggery between pupils at the school would appear to have existed for a number of years.”(51)
The Waterhouse tribunal certainly found evidence that, after being abused, some boys carried out homosexual acts on other boys and went on to become abusers later in life.
Waterhouse holds it to be a self-evident risk that “those who had been abused might become abusers”.(52) The Inquiry criticises Clwyd Social Services for failing to recognise this.(53)
At least three of the main adult abusers were themselves abused or claimed to be abused as children (Ryan (54) , Cooke (55) and Saint.(56) )
Gary
Cooke’s 1980 paedophile convictions included one count of buggery
with William Gerry, then aged 14/15 years and in care.(57)
Gerry was subsequently convicted of the buggery of a 16 year old
boy and 4 offences of gross indecency with this boy and another
aged 15. He was 20 years old at the time of committing the offences.
Gerry subsequently committed suicide.(58)
Top
The Government’s Response to Waterhouse
Much is being done by the Government to try and improve standards for children in care. The Waterhouse and Utting reports both draw attention to the need for a major overhaul of the system.
It is common sense that children in care are generally better off being adopted than being in an institutional setting. In the wake of the Waterhouse report the Prime Minister announced a major review of adoption procedures. The Government feels too many hurdles stop couples from adopting children who are in care. (59) In October 1999 the Department of Health announced that vulnerable children should spend less time waiting to be adopted.(60) It is to be hoped that the review may even tackle adoption procedures which can be plagued by political correctness.
A review of adoption is welcome, but no one believes that it will eradicate the need for public care. There will always be some children who, for good reasons, cannot be adopted.
The
Government has committed itself to several measures aimed at improving
the organisation of children’s care services. It has announced
a £375million package called “Quality Protects”
to alter the management and delivery of children’s social services.(61)
Meanwhile, the Children (Leaving Care) Bill will seek to help 16
to 18-year-old young people who are leaving care by placing a duty
on local authorities to asses and meet their needs.(62)
The bill will also give local authorities powers to provide additional
support (in the areas of education, training and employment) to
young people who have left care up to the age of 21. (63)
Another bill, the Care Standards Bill, includes provision to reform the system of inspection in childcare. A new independent national body will regulate children’s homes, advising the government and informing the public about general standards of care.(64)
One Government measure to protect children from potential abusers is contained in the Criminal Justice and Court Services Bill. Clause 26 of the bill will give courts the power to ban child sex offenders from working with children. Clause 32 makes it a criminal offence for such a person even to seek employment in fields from which they are banned. (65)
Two specially maintained lists already exist to try and minimise the risk of inappropriate people being allowed to work with children in the areas of health and social care. The Department for Education and Employment maintains “List 99”, a list of people banned from teaching or youth work because of misconduct or medical reasons.(66) Access to this list is strictly limited to those responsible for checking the suitability of job applicants.
The Department of Health maintains a Consultancy Index for England and Wales, which includes people that employers consider to be unsuitable to work with children.(67) Would-be employers are currently not legally obliged to consult this list. However, the list is to be placed on a statutory footing by the Protection of Children Act 1999. Further down the line, both List 99 and the Consultancy Index will be accessible via the proposed new Criminal Records Agency. This will act as a “one stop shop” giving employers access to the lists and to police records for the purposes of recruiting people to work with children and other vulnerable groups. (68)
In addition The Sex Offenders Act 1997 has brought in a sex offenders register. It imposes a requirement on those convicted or cautioned for sex offences against children to notify police of their current address.(69) But all such lists can only deal with known abusers. The obvious problem is that child abusers are expert in keeping their evil deeds secret.
As the Utting report comments “People who prey upon children in this way are sexual terrorists whose success depends, paradoxically, on their capacity to ingratiate themselves with adults and children. An outstanding characteristic is their ability to establish themselves in roles in which they are trusted to excess as friend, colleague or employee. Their subsequent activities are concealed by suborning, blackmailing and threatening their victims...They are largely, but not exclusively, men.” (70)
All these measures represent a significant improvement in the organisational and administrative structures of children’s care services and there is much that is welcome.
The Government’s aim is to increase the protections for young people. It is striking that within the Waterhouse Report, the focus is very much on the sexual abuse of boys. It is therefore all the more extraordinary that the Government want to take away from teenage boys a key protection of the criminal law.
Age of consent offences offer the best legal protection for boys from male adult abusers. Liberalising the offences will make convicting child sex abusers more difficult. The Government proposals even include legalising the buggery of girls aged 16 to 18.
Significantly,
the Waterhouse report deliberately draws the attention of parliament
to the homosexual abuse of boys between 16 and 18 - the very age
group that will be most affected by lowering the age of consent.
Just about every procedure and issue seems to have been addressed
apart from the most obvious one: the protection for children by
the criminal law. It is to this that we now turn.
Top
The Sexual Abuse of Boys Over Sixteen
The
Vulnerability of 16 - 18 year olds
The remit of the Waterhouse inquiry concerned the sexual, physical
and emotional abuse of children in the public care from 1974 - 1996
in the former county council areas of Gwynedd and Clwyd.
That was the remit of the Inquiry, yet quite deliberately in one of the final chapters of the report, the tribunal makes specific reference to the vulnerability of young boys aged between 16 and 18 and draws this to the attention of Parliament.
|
"We have concentrated our attention on evidence relating to children who were in care at the time, having regard to our terms of reference, but we have necessarily heard some evidence about others who were on the fringe of the care system, that is, children who were later committed to care and youths who had recently been discharged from care. In our judgment, the perils for such persons are as great in this respect as for those actually in care and our findings emphasise the importance of continuing support by social services for those who are discharged from care. We draw the attention of Parliament also to the abuse suffered by B between the ages of 16 years and 18 years, in circumstances which appear to have made him question his own sexuality for a period. Much of the later abuse was not inflicted by persons in a position of trust in relation to him and there can be no doubt that he was significantly corrupted and damaged by what occurred.(71) " |
As far as can be established this is the only section in the whole report to which Parliament’s attention is particularly drawn in this way.
There are at least four conclusions drawn in these two paragraphs of the report:
1.
The risks of sexual abuse of young people recently discharged from
care (or who are not yet in care) are at
least as great as for those in care.
2. Much of the later abuse of B (Stephen Messham) was inflicted
by persons not in a direct position of trust
3. This abuse caused B to question his sexuality
4. This abuse “significantly corrupted and damaged” him
The Government’s new abuse of trust provisions (see below) would not have helped B later on when the abusers were not in a position of trust.
In
reaching his conclusions, Sir Ronald Waterhouse QC, who once stood
as a Labour Party candidate for Parliament (72)
, has made it much more difficult for the Government to defend the
Sexual Offences (Amendment) Bill.
Top
Other
Examples
The Waterhouse report has many other examples of young people aged
16-18 who were abused. Sometimes the abuser was in a position of
trust, and sometimes not. The report looked specifically at abuses
within the care system, but it also makes reference to abuse of
young people who had left care.
C alleges that Allen abused him in Bryntirion Hall when aged 16 and then subsequently after he had left right up until the age of 23 or 24.(73) Allen also made many attempts at abuse on D, who was aged 16 when he entred Bryn Alyn. Another attempt was made many years later after he had left the home.(74)
The report makes clear it’s misgivings about the way Allen was able to continue his abuse on young people who had left care. “It is a cause for grave concern also that his influence extended for some beyond the period of their residence in care with the Community to later years when they should have been establishing themselves in normal patterns of life.”(75)
The Waterhouse Inquiry looked at many care homes. One such home was Gwynfa Residential Unit. By the end of the inquiry 27 individuals claimed to have been abused in the home. One alleged that a care worker committed buggery on him when he was 17 years old.(76)
Many
other examples of abused boys aged 16 to 18 will be quoted elsewhere
in this report.
Top
The Government’s Proposals: Age of Consent
The
Sexual Offences (Amendment) Bill
The age of homosexual consent and the abuse of trust offences have
been subject to a free vote. But the House of Lords has twice defeated
attempts to reduce the age of homosexual consent. Now the Government
is proposing to use the Parliament Acts to force the age reduction
through the House of Lords.
Government ministers want to lower the age of homosexual consent from 18 to 16. They also wish to lower the age at which it is possible to commit buggery on girls from 18 to 16.
These changes are to be brought about by the Sexual Offences (Amendment) Bill. In Northern Ireland the Bill lowers the age of homosexual consent to 17 and permits the buggery of girls at 17.
It is important to note that the Sexual Offences (Amendment) Bill also introduces a new offence of the abuse of trust. This makes it a criminal offence for certain adults who look after children to have sexual relations with them. This new offence will be considered in the next chapter after the existing law has been considered.
There is much the Government is doing in other legislation to tackle the issue of sexual abuse whilst children are in care. Nevertheless the Government are also proposing major liberalisation of the law as regards homosexual activity between men and boys. This is no small matter.
The Waterhouse report draws the attention of Parliament to the sexual abuse of boys aged over 16 who are not in the care system. When vulnerable young people leave care, they are in the same position as everyone else. It is the Waterhouse report which has raised questions about the legal protections for 16-18 year old boys. The Government now need to answer these questions urgently.
There
may be homosexual boys aged 16 who want the legal right to be sexually
active with men. There may even be 16 year old girls, though it
is unlikely, clamouring for the right to be subjected to anal intercourse.
One thing is clear. There is no way of changing the law to give
them freedom without taking it away from vulnerable young
people, boys and girls, who could be the target of predatory abuse.
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The
Existing Legal Protections
As far as the sexual abuse of children is concerned there are essentially
three kinds of sexual offence. The first relates to the absence
of consent. To bring a successful prosecution it is necessary to
prove that the act took place and that consent was withheld.
The second relates to the age of consent. Bringing a prosecution is much simpler. The prosecutor knows the age of the young person, he just has to prove that a sexual act took place. The third is the crime of incest. This will be considered at the end of the next chapter.
Breach
of Consent Offences:
(1) Indecent assault
If an abuser fondled the genitalia of a child this would be classed
as an indecent assault. So would forcing a young person to touch
the genitalia of the abuser.
(2) Rape
If there was anal or vaginal penetration without consent then the
offence committed would be rape. Only since 1994 has the offence
of male rape been available to prosecutors where a male forcibly
buggers (has anal intercourse) with another male.
Age
of Consent Offences:
Buggery & gross indecency (77)
If a man commits a sexual act on a boy under the age of 18 (or the
man gets a boy to commit sexual acts on him) then the offence of
gross indecency has been committed. If the act involves anal intercourse
with a boy aged under 18 then the offence of buggery has been committed.
Several of the accounts in the Waterhouse report detail the physical damage that occurred to the abused. Allegations against Allen are made in the report. B (not Stephen Messham) recounts being assaulted when he was 13 or 14 years old: “B alleged also that Allen went further and forced himself into B, penetrating him: it was painful and B discovered later in his bedroom that he was bleeding.”(78)
The
law views buggery of boys aged under 16 as even more serious than
an indecent assault. The maximum custodial sentence for buggery
of a boy aged under 16 is life imprisonment.(79)
For indecent assault it is ten years(80) (Section
44 of the Criminal Justice Act 1991 requires that normally those
sentenced to a prison term for a sexual offence will serve out three
quarters of that term before being released on parole for the remainder).(81)
Top
Recidivism
International studies cited by NACRO show that up to 43% of sex
offenders will re-offend. The proportion that re-offends continues
to increase over follow up periods as long as 20 years.(82)
The paedophile, Cooke, was sentenced in 1980 for sexual offences then convicted again for similar crimes in 1987.(83) The investigative journalist singled out for praise by the report, Dean Nelson, once met Cooke who told him: “It doesn’t die. Even after your little article, it is still going to go on.”(84)
Cooke
claims to have received therapy and “benefited from it”
during his prison term for the 1987 convictions.(85)
But he re-offended and was convicted yet again in 1995.(86)
Given the persistent reoffending of child abusers it is vital that
such men are caught and serve custodial sentences
Top
The
age of consent offence catches abusers
There are two main factors why it is always much easier to secure
convictions using the age of consent offences than other offences
such as rape or indecent assault.
(1)
Proving Absence of Consent
At present any man performing homosexual acts on a young person
under the age of 18 is always committing an offence. By definition
an age of consent offence is one where the young person is legally
deemed to be incapable of giving consent.
The prosecution need only prove that the act took place. The fact that a young person might agree to the activity is irrelevant to the prosecution. It is therefore much easier to prove than a charge of rape or indecent assault which requires evidence of absence of consent.
(2)
Consent is not ‘Real Consent’
The power that child abusers have over their victims is tremendous.
They are experts at manipulating children and young people. Sometimes
they use threats, sometimes they give presents. Often, just special
attention is all that was needed to control a vulnerable young mind.
Such was the control of the men mentioned in the Waterhouse report that victims would repeatedly go out of their way to be abused. This may give the impression of consent, but it is nothing more than despairing submission. They may have craved friendship but none of these victims chose to be abused.
The Waterhouse report says this about the convicted paedophile, Stephen Norris: “Norris’ technique generally was to befriend selected boys by offering sympathy and understanding.”(87) In another section the report says this about fellow paedophile, John Allen: “Allen told him [C] that he had had a fragmented life and that Allen would be a father to him; but on other occasions he called C his boyfriend.”(88)
Allen’s generosity in buying presents for his victims seemed to know no bounds. “Allen spoilt him [F] with presents, clothes and money and both staff and residents called him ‘John’s boy’… The most severe assaults occurred when Allen was drunk and F would pretend he was asleep. Despite all this, F continued to regard Allen as a father figure… and he was given a Kawasaki 50CC motor cycle by Allen after he left.”(89)
“The evidence that we have outlined highlights two particular aspects of Allen’s alleged sexual activities, namely, his selection of individual boys for particular attention and favouritism and his practice of giving very valuable presents to those boys. Allen’s own estimate of the amount of Community money that he spent on extra support to child residents, over and above pocket money and incidentals, was £180,000. This total represented the overall cost of presents of the kind we have referred to, including stereo equipment, bicycles and clothes, the cost of accommodation and help with rent, and financial support.”(90)
But Allen’s temper was also a factor in making his victims submit: “[Allen] undid his trousers and asked B to masturbate him, which B did. B’s explanation of this was that he was frightened of Allen because B had seen him lose his temper and knew that he could be violent.”(91)
Allen subsequently bought B (not Stephen Messham) a £500 hi-fi system. (92) B alleges that there were 5 further occasions when Allen had assaulted him. (93) At the age of 14 or 15 he was treated for anal bleeding. (94)
The manipulation used by Allen and Norris was applied by other paedophiles mentioned in the report. Cooke developed a friendship with a 16-year-old boy at a youth group which he was working at. When the boy absconded from Chevet Hey, he stayed with Cooke’s parents. After breaking up with his girlfriend the boy stayed for some months with Cooke in Leicester. The boy was still in care. “Cooke started to abuse him within a week or two of their meeting and continued to do so… The witness alleged also that he was abused separately by Stevens… In his view both Cooke and Stevens took advantage of him when he was in need of friendship”.(95)
And about Ryan, the report says: “He was attracted to some of the boy residents and would groom them for subsequent sexual misconduct. They would be shown favours and later touched intimately in the bathroom or showers. Ryan was able to take advantage both of his quasi-parental status and the location of his bed sitting room, near to the boys’ dormitories.”(96)
Obtaining
Convictions
Any prosecutions of child sexual abuse have inherent problems about
(a) reporting and
(b) the establishment of evidence from the children themselves.
Many of those who were prosecuted and convicted in North Wales for an age of consent offence had in fact also committed many other offences, some of them even more serious. Nevertheless it remains the fact that convictions are far easier to obtain on an age of consent offence than other sexual offences.
It seems reasonable to suppose that the age of consent offences act as a “clearing up” tool. An age of consent offence may be the catalyst for further convictions. Whereas the police may decide not to pursue an indecent assault offence on its own where there is a 51% likelihood of success, the addition of a 70% likely age of consent offence might cause them to also pursue the assault offence alongside it.
Many of the abusers in the Waterhouse Report were imprisoned for age of consent offences. It was the protection which was used to take them out of circulation, thereby protecting young people.
Child
abusers are now behind bars because they were convicted of breaking
an age of consent offence, even though they may have committed many
other offences and never been prosecuted for them because they are
more difficult to prove.
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The
Penumbra Effect
It is commonly accepted that a penumbra effect currently operates
in relation to age of consent offences. Although parliament has
set the age of consent for heterosexual sex at 16, where a fourteen
or fifteen year old has sex with an older person, the Crown Prosecution
Service is unlikely to bring a prosecution.
This unwillingness to enforce the law in relation to heterosexual offences carries over into homosexual offences. Therefore, if the age of consent for buggery and gross indecency is lowered to sixteen, prosecutions will not be brought for offences involving fourteen and fifteen year-old boys.
A
Table showing the convictions of the child abusers named in the
Waterhouse report:
| Convictions for Sexual Offences | |
| John
Allen Six indecent assaults(97) Peter Howarth Buggery Seven offences of indecent assault(98) Reginald Cooke (aka Gary Cooke) [1980] Two offences of buggery One indecent assault Taking an indecent photograph(99) [1987] Four offences of buggery Three of indecent assault One of taking an indecent photograph(100) Graham Stephens Buggery Indecent assault(101) Iain Muir Unlawful sexual intercourse(102) Jacqueline Thomas Indecent assault(103) Frederick Rutter Four counts of rape Two of indecent assault(104) David Gillison Two offences of gross indecency(105) William Gerry (ex-resident) Buggery Four offences of gross indecency(106) |
Stephen Norris [1990] Five counts of indecent assault(107) [1993] Three offences of buggery Attempted buggery Three indecent assaults (Two counts of buggery, seven indecent assaults and an indictment alleging 6 other offences of buggery ordered to remain on court file).(108) Roger Saint Nine indecent assaults (7 indecent assaults ordered to remain on court file)(109) Leslie Wilson Indecent assault Gross indecency Attempted buggery(110) Bryan Davies Three offences of indecent assault(111) Roger Griffiths Buggery Attempted buggery Indecent assault(112) Anthea Roberts Two indecent assaults(113) Richard Leake 14 counts of indecent assault(114) |
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Complacency About Sex Offences
The complacency of the statutory agencies is a theme running through
the Waterhouse report. The Government itself is guilty of complacency
as it presses ahead with the lowering of the age of homosexual consent.
Social worker Alison Taylor, who acted as a whistle-blower in 1986, actually lost her job because she expressed her concerns. On 15 February she told Radio 4 that lessons still had not been learned “we will probably fast become complacent again”.(115)
The 1999 Home Office report Sex Offending Against Children showed that the main sex offences against children have seen a fall in convictions/cautions by 31% in the ten year period up to 1995.(116) Reports of gross indecency with children 14 and under, (girls and boys) have more than doubled from 633 to 1,287 over the ten year period, but convictions have declined.(117)
The Utting report confirms that there has been a decline in the number of prosecutions for sexual offences against children.(118)
The report finds that “the present arrangements make it almost impossible to provide appropriate legal redress for children who have been abused and actually impossible for significant numbers of the most vulnerable... We believe that a review of these matters is needed if children are to get the protection they both urgently need and deserve.”(119)
It is surprising, then, that the idea of a new criminal offence covering abuse of trust was unpopular with some of the groups charged with caring for children. The Home Office consultation on abuse of trust stated that “The responses to the consultation exercise indicated that the large majority of organisations, including the majority of voluntary organisations working with children, believed that such conduct was better regulated by professional codes”. It also stated that “The majority of the respondents stated that they were opposed to the introduction of a criminal offence to cover cases of abuse of trust. The consensus was that such a measure would be hard to implement, restrictive and would prove ineffective. The Christian organisations [of which The Christian Institute was one] were the only group in complete favour of such a course of action.”(120)
It is to the new offence of the abuse of trust that we now turn.
The Government’s Proposals: Abuse of Trust
Origins of the Abuse of Trust Offence
All cases of abuse damage children, but if the abuser is an adult
in a position of responsibility then the damage caused is even greater
since it shatters the young person’s confidence in adults they
should be able to trust.
Such abuse uniquely damages the young person’s ability to come to terms with their abuse since it profoundly weakens the trust of a young person in those who can help them to recover.
In May 1998 a Labour back-bencher moved an amendment to lower the homosexual age of consent from 18 to 16. In response, Joe Ashton MP proposed an accompanying amendment creating an offence of abuse of trust. Referring to other European states with similar laws, he argued that some protection should be introduced to deal with predatory older men.(121)
Joe Ashton relied in particular upon a passage in the 1997 Utting Report which noted cases of child abuse where the perpetrators were “frequently in a position of particular responsibility, authority and trust”.(122)
Joe Ashton’s amendment was defeated. Later, when the back-bench amendment to lower the age of consent was itself rejected by the House of Lords, the Government said that they would seek to lower the age in their own bill.
They also announced an enquiry into abuse of trust. This was to be appended to an existing Home Office enquiry into preventing unsuitable people from working with children.
The
Government had not previously shown any interest in an abuse of
trust offence. Their enquiry was brief. The majority of respondents
opposed the creation of a criminal offence to cover abuse of trust.
Despite this, the Home Office working group did propose a criminal
offence but a “very limited” one.(123)
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The
New Abuse of Trust Offence
The Home Secretary referred to “widespread concerns” about
abuse of trust(124) and “widely shared concerns
about the need to protect vulnerable young people”(125)
. In the press much was made of the abuse of trust provisions.
Yet when the Bill was published the explanatory notes which accompanied it made it clear how limited the offence was. In paragraph 23, the Home Office predicted only 10-15 prosecutions a year as a result.(126) Out of the many thousands of cases of abuse which take place every year, only ten to fifteen are expected to be prosecuted under these provisions. Of course, not all prosecutions will result in convictions.
The
disadvantage of the new offence is it only applies to those adults
with certain direct responsibilities for the young people in their
care. The Waterhouse report is littered with examples of adults
against whom allegations have been made but who are outside this
definition.
| A Brief Description of Abuse of Trust |
The Abuse of Trust offence contained within the Sexual Offences (Amendment) Bill operates by making it a criminal offence for a person aged 18 or over to engage in any sexual activity with or directed towards a person under 18 if he is in a position of trust in relation to that person. A person in a “Position of trust” is narrowly defined as someone who is regularly involved in caring for, training, supervising or being in sole charge of persons who are
The
offence specifically provides a defence for an adult who did
not know that the young person was under 18. It also exempts
sexual relationships which begin before the offence comes
into force. |
The
Abuse of Trust in North Wales
The abuse of trust offence proposed by the Government would not
have covered much of the abuse that took place in North Wales. There
are six types of case in the report which show how weak the new
abuse of trust provisions are. None of the cases involved would
have been covered by the new offence.
(1)
Voluntary organisations
It is well a established fact that paedophiles can seek to obtain
positions of responsibility in youth organisations where they can
come into contact with children.
The notorious paedophile Reginald “Gary” Cooke was employed as a care worker for a relatively short time. He worked for only two weeks in Bersham Hall, probably in or about 1972. Then he was later employed for over a year by the Bryn Alyn Community in two children’s homes. Later still he was an assistant Warden of a probation hostel for six months.(127)
Most of the boys Cooke abused were not actually in care at the time.(128) Those that were in care tended to have met Cooke outside the home.
One boy was in care from April 1973, when he was aged 16 until the end of 1974. His evidence is that he was abused by Cooke after “a friendship developed between them when he attended a youth club”.(129) Cooke was a team leader in the youth club. The abuse continued until the boy told Cooke that he did not want it. He argues that Cooke “took advantage of him when he was in need of friendship.” (130)
When Cooke was an instructor in the Army Cadets he met boy B who claims that he was abused “on about half a dozen occasions before he went into care.” (131) Significantly the abuse continue for a long time afterwards.
After
B went into care he continued to meet up with Cooke. The Waterhouse
report notes “Cooke would, for example, wait in a car for him
in Bryn Estyn lane when he had a pass out...”(132)
Apparently of his own volition B would meet up with Cooke outside
the home. B has made detailed allegations that on Sunday evenings
Cooke took him to a hotel where he met other paedophiles who abused
him. (133)
Years of abuse, where Cooke manipulated B into giving consent, all started because they met each other in a youth group.
(2)
Grooming for later abuse
Care workers understand the care system. They also understand how
vulnerable young people can be manipulated. This is precisely what
happened with the unscrupulous care workers in the Waterhouse Report.
They groomed young people for abuse, including abuse after the young
person had left care.
The Waterhouse Report concludes that Cooke had “ready access to children in residential care in the Wrexham area.” (134) This is significant since Cooke was only employed as a care worker for little over a year.
Allen was Chief Executive of the Byrn Alyn homes.(135) Properties he owned were used “to house young men who had been discharged from care”.(136)
One of the buggery victims for which Cooke was convicted in 1987 was 18 years old and not in care at the time the offence. The victim had earlier been in care at Bersham Hall, where he was when he first met Cooke. (137)
G was abused by Jacqueline Thomas, a care worker at the children’s home where he was resident. But it was not until G was 16 and had gone to live in another home that she had full sexual intercourse with him.(138)
(3)
Introductions to other abusers working in social services
Jacqueline Thomas was convicted of abusing another 16 year old boy,
namely S.(139) The police investigation followed
allegations made by G following his return from Christmas leave.
G alleged that on Christmas Eve he and S had stayed at Thomas’ flat. David Gillison, a social worker with Clwyd County Council was also there and group sexual activity took place. Gillison was later convicted of two charges of gross indecency with G. (140)
If the abuse of trust provisions had been in force at the time Thomas could have been convicted under them, but her accomplice, Gillison would not since he was not the social worker directly responsible for G or S.
A care worker from one home can abuse children from another home without breaking the abuse of trust offence. This is a straightforward loophole in the proposed legislation.
If Thomas had introduced the boys to Gillison and refrained from taking part in sexual activity she would not have been committing an abuse of trust offence.
(4)
The police
The case of Gordon Anglesea, a senior police officer, is very important
irrespective of the fact that the Waterhouse Report notes that the
allegations against him were not proved.
The tribunal considers this case with great seriousness. A whole section in the report is devoted to the allegations made against Anglesea. A national newspaper and a TV company alleged that Superintendant Anglesea had abused boys at Bryn Estyn.(141) Whilst two witnesses backed the allegations, other potential witnesses specifically denied that they had been abused by Anglesea.(142)
Anglesea brought a libel action and won. He was awarded damages of £375,000. The tribunal notes that during the action Anglesea changed his story. Initially he said that he had only visited the home twice, eventually he admitted that it was about 11 times.(143) Various witnesses repeated their allegations to the tribunal.(144)
The tribunal concludes that the allegations against Anglesea have not been proved.(145) Nevertheless the case illustrates an important point: Someone such as a police officer did have legitimate access to children in the home and there were opportunities when children could have been abused.
Children absconding or petty theft by children in homes are common occurrences. The police often have to attend such incidents.
(5)
Ancillary staff
A 17 year old girl resident claimed that the male gardener at Upper
Downing Community Home sexually abused her.(146)
Prosecution of the gardener “was not considered to be appropriate”.
He was dismissed, but largely on grounds unrelated to the alleged
sexual abuse.(147)
Ancillary staff working in childrens homes are not covered by the abuse of trust offence
(6)
The Social Services Inspectorate
It has emerged since the inquiry that Derek Brushett, a senior civil
servant at the Welsh Office, was also involved in abusing children.
Brushett was Deputy Chief Inspector of Social Services until he
was suspended following allegations of abuse relating to the time
when he ran a children’s home. He was sentenced to 14 years
imprisonment for the sexual abuse with children.(151)
The significant thing about this case is that Brushett could easily have abused children when he was Deputy Chief Inspector and the new offence would not have applied.
| Definitely Not Covered by Abuse of Trust | |
Teachers of part-time pupils Only teachers of full-time pupils can be guilty of abuse of trust.(148) Part-time pupils are therefore not protected. Step-parents
and other close relatives Baby-sitters Youth
workers “Personal
advisers” |
Ad-hoc
carers Pre-existing
Relationships |
| Arguably Not Covered by Abuse of Trust | |
Headteachers and non-teaching staff If a teacher is to be successfully prosecuted for abuse of trust, he must be regularly involved in the care, training, supervision or sole care of the victim. But there are many positions within a school where an abuser might have frequent access to children without being regularly involved in these ways. A headteacher is a prime example. These days, many headteachers in their leadership role do not teach lessons or directly supervise pupils. A headteacher who abused his position to obtain sexual favours from 16 and 17 year-old pupils, would be advised by his lawyers to argue that he was not in a position of trust. School
leavers |
protected. An abuser may ‘groom’ a child for abuse with impunity, so long as he refrains from sexual activity until after he leaves his care. An example would be a school teacher who ‘romances’ a pupil during her final term, but says they must wait until she has left the school before having sex. This would also apply when a child leaves a detention centre. Absconders |
Too
Narrowly Defined
As far as boys are concerned, it is arguable there would be no need
for an abuse of trust offence at all if the age of homosexual consent
was kept at 18 and the law was enforced.
The abuse of trust offence is intended to deal with cases where the consent given is not real consent because of the position of the adult over the young person. Abuse of trust carries a maximum penalty of five years imprisonment. By way of comparison a breach of the present law on buggery carries a maximum penalty of life for very serious offences.
The
new abuse of trust offence will be useful where prosecutors believe
there is not enough evidence for an assault or rape charge. There
could still be a prosecution under the abuse of trust law.
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The Loopholes
Abuse of trust is defined very narrowly by the Bill. Part time pupils
in education are not protected. Temporary teaching staff are immune
from the offence. Relationships which were established before the
commencement of the Act are also exempt from the legislation.
Adults
covered are those who are “regularly involved in caring for,
training, supervising or being in sole charge” of young people
under the age of 18.(152) It is arguable whether
a headteacher or the owner of a private children’s home would
be covered by the offence. In 1999 the House of Commons considered
extending the abuse of trust to include existing relationships(153)
, part time pupils,(154) step families,(155)
religious leaders,(156) youth workers,(157)
and temporary teachers and carers.(158) But attempts
to extend the abuse of trust into these areas were rejected by the
Government. Many of the adults in positions of responsibility in
the Waterhouse report who abused children would not have been covered
by the offence.
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The
law of Incest
It is well-known that sexual abuse does take place in some families.
It is within the home that there is the greatest opportunity for
abuse. And it is there that abuse can cause the greatest damage.
Relationships between family members are profoundly important. The
strong bonds of trust created there are unique. For most young people
these bonds are a profoundly stabilising force for good as they
grow up into adult life. Incest is therefore a particularly evil
form of abuse of trust.
The law of incest makes it an offence for a man to have heterosexual intercourse with his granddaughter, daughter, sister or mother.(159) Incest is also committed by a woman if she has sexual intercourse with her son, brother, father, or grandfather.(160)
Surprisingly, the law does not cover homosexual incest at all. If a father has sexual intercourse with his fifteen-year old daughter he can be prosecuted under the law of incest as well as being prosecuted for having sex with a girl under sixteen. The abuse of the parental relationship increases the seriousness of the action and this is recognised in law.