[law, UK] The Rhodes case
[TW: rape, child sexual abuse - not graphic, but some psychology]
I was apprised today of the Rhodes case in the UK, about which I am all sorts of appalled - that was one of the worst things that can possibly be done to someone who has been raped - and deeply grateful that the victim defendent won on appeal.
For those who have no idea what I'm saying: a bloke wrote an autobiography in which he pulls no punches in describing the harrowing and protracted sexual abuse he suffered as a child; his ex-wife sues on behalf of their neuroatypical 11yo son to prevent publication of the book, on the grounds it would tortiously harm the boy. The initial decision was against him, and he spends 14 months under a legal injunction not only not to publish or promote his book, but not to tell anyone in any way anything about his having been raped, having written the book, or even being sued.
(Since a substantial part of the psychological trauma of sexual assault in children is in being terrified to tell lest their abuser reprise against them or they be blamed, and/or not being believed when they do tell and told to stop saying those things that upset the family, and/or terrifying things that assailant tells or teaches them which cry out for reality checking which the child dare not do, since all of that is so, for the victim being forced back in the closet and told by an authority figure with actual power that they can't tell anyone about it is very psychologically close to what the perpetrator did in the first place.)
Anyway. I read the decision, and there was an interesting thing buried in it. In the course of the decision, the court abolished the doctrine of imputated intent from civil law. As the majority decision notes, it had been abolished in criminal law by statute in 1967. 81. There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle. It was abolished in the criminal law nearly 50 years ago and its continued survival in the tort of wilful infringement of the right to personal safety is unjustifiable. It required the intervention of Parliament to expunge it from the criminal law, but that was only because of the retrograde decision in DPP v Smith. The doctrine was created by the courts and it is high time now for this court to declare its demise.
82. The abolition of imputed intent clears the way to proper consideration of two important questions about the mental element of this particular tort.
No, I had no idea what imputed intent was, either.
As best I have been able to figure out - and IANAL, and most especially IANAUKL, so if we have any soliciters reading, feel free to chime in - it goes something like this. Imputed intent stands in contrast to inferred intent. Inferred intent is when behavior or other evidence specifically suggests reason to believe a defendent intended a particular result by his action; inferred intent is a matter of fact. Imputed intent, however, is when it is legally assumed that the defendent intended the most reasonable, plausible outcome of their behavior; so even if you don't have evidence that they did intend that outcome, you take it as a matter of law that they may as well have, and proceed as if they did. (And maybe you impute intent even when you have evidence it was not their intent? I dunno.)
Or put another way, imputing intent is the court saying, if you intentionally fire a gun in somebody's direction, we don't care that you didn't intend to kill 'em, we're gonna treat you as if you did, because, really.
I thought that was interesting. That sounds like a major change to slide by, largely unremarked. At least nobody had remarked where I had seen before I got around to reading the decision, and not much came up when I googled. Maybe it doesn't come up much? All the press had been about the trauma story, and the freedom of speech angle. The fact that Great Britain just changed the evidentiary standard for torts, not so much.
P.S. Also, warm fuzzies to Lord Neuberger for his concurring decision, which disagreed on the point that he felt it was a bad idea to limit the grounds for a tort claiming mental or emotional harm to only recognized psychiatric illnesses. No, what happens to you as a consequence of others' actions doesn't have to have an entry in the DSM to count. We clinicians don't even think the DSM is categorical; when the law starts treating it as such, that's skin-crawly.
I was apprised today of the Rhodes case in the UK, about which I am all sorts of appalled - that was one of the worst things that can possibly be done to someone who has been raped - and deeply grateful that the victim defendent won on appeal.
For those who have no idea what I'm saying: a bloke wrote an autobiography in which he pulls no punches in describing the harrowing and protracted sexual abuse he suffered as a child; his ex-wife sues on behalf of their neuroatypical 11yo son to prevent publication of the book, on the grounds it would tortiously harm the boy. The initial decision was against him, and he spends 14 months under a legal injunction not only not to publish or promote his book, but not to tell anyone in any way anything about his having been raped, having written the book, or even being sued.
(Since a substantial part of the psychological trauma of sexual assault in children is in being terrified to tell lest their abuser reprise against them or they be blamed, and/or not being believed when they do tell and told to stop saying those things that upset the family, and/or terrifying things that assailant tells or teaches them which cry out for reality checking which the child dare not do, since all of that is so, for the victim being forced back in the closet and told by an authority figure with actual power that they can't tell anyone about it is very psychologically close to what the perpetrator did in the first place.)
Anyway. I read the decision, and there was an interesting thing buried in it. In the course of the decision, the court abolished the doctrine of imputated intent from civil law. As the majority decision notes, it had been abolished in criminal law by statute in 1967. 81. There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle. It was abolished in the criminal law nearly 50 years ago and its continued survival in the tort of wilful infringement of the right to personal safety is unjustifiable. It required the intervention of Parliament to expunge it from the criminal law, but that was only because of the retrograde decision in DPP v Smith. The doctrine was created by the courts and it is high time now for this court to declare its demise.
82. The abolition of imputed intent clears the way to proper consideration of two important questions about the mental element of this particular tort.
No, I had no idea what imputed intent was, either.
As best I have been able to figure out - and IANAL, and most especially IANAUKL, so if we have any soliciters reading, feel free to chime in - it goes something like this. Imputed intent stands in contrast to inferred intent. Inferred intent is when behavior or other evidence specifically suggests reason to believe a defendent intended a particular result by his action; inferred intent is a matter of fact. Imputed intent, however, is when it is legally assumed that the defendent intended the most reasonable, plausible outcome of their behavior; so even if you don't have evidence that they did intend that outcome, you take it as a matter of law that they may as well have, and proceed as if they did. (And maybe you impute intent even when you have evidence it was not their intent? I dunno.)
Or put another way, imputing intent is the court saying, if you intentionally fire a gun in somebody's direction, we don't care that you didn't intend to kill 'em, we're gonna treat you as if you did, because, really.
I thought that was interesting. That sounds like a major change to slide by, largely unremarked. At least nobody had remarked where I had seen before I got around to reading the decision, and not much came up when I googled. Maybe it doesn't come up much? All the press had been about the trauma story, and the freedom of speech angle. The fact that Great Britain just changed the evidentiary standard for torts, not so much.
P.S. Also, warm fuzzies to Lord Neuberger for his concurring decision, which disagreed on the point that he felt it was a bad idea to limit the grounds for a tort claiming mental or emotional harm to only recognized psychiatric illnesses. No, what happens to you as a consequence of others' actions doesn't have to have an entry in the DSM to count. We clinicians don't even think the DSM is categorical; when the law starts treating it as such, that's skin-crawly.