[Content note: abuse of power, rape]
There was a debate in Parliament yesterday regarding undercover policing, raised by Caroline Lucas MP (Green, Brighton Pavilion).
One of the issues raised was the practice by police infiltrating a group suspected of criminal activity of forming sexual relationships with the members of that group (so far, the cases which have received publicity have all involved male police officers and female members of the group).
It is of course fairly likely that many of the people with whom the undercover officers formed sexual relationships would not have done so had they known that the other person was an undercover police officer. As Lucas states:
The eight women allege that the men’s actions constitute a breach of articles 3 and 8 of the European convention on human rights. Article 3 asserts that no one shall be subject to inhuman or degrading treatment, and article 8 grants respect for private and family life, including the right to form relationships without unjustified interference by the state. The women go on to allege that the actions amount to common law tortious acts of deceit, misfeasance in public office and assault.
It's not at all clear to me from a reading of the precedent and legislation whether people in a similar situation could also allege rape, as has been suggested (and rightly, because morally it is). It hinges on what "capacity to consent" means in the legislation, and the positive precedents generally have elements which are clearer than in this sort of case1.
In that context, the government's answer is disturbing.
Nick Herbert MP (Conservative, Arundel and South Downs), the relevant Minister, replies - regarding the legality of this under RIPA, an issue which remains untested by the courts and on which a number of conflicting public statements have been made by the police:
What matters is that there is a general structure and system of proper oversight and control, rather than specific directions on behaviour that may or may not be permitted. Moreover, to ban such actions would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them. Specifically forbidding the action would put the issue in the public domain and such groups would know that it could be tested.
So it's okay for an undercover police officer to commit actions morally (and possibly legally) constituting rape, if to do otherwise would put their cover at risk, according to the government.
Herbert doesn't explicitly state it one way or the other, but presumably given some of the other cases that Lucas raised, he also considers it legitimate for an undercover police officer to plant a live incendiary device in a public area, if to refuse would put their cover at risk (a blanket ban on committing life-threatening acts of terrorism would obviously make it too easy for terrorist groups to out undercover officers, right?).
1 Generally one of:
- The offender viewed the act as sexual but convinced their victim(s) that it wasn't (e.g. fake medical examinations)
- The offender had used some sort of threats or pressure
- The offender was pretending to be an entirely different person (as opposed to presenting a different identity of the same person). The distinction between the two is not trivial, given how many people have extremely legitimate reasons to have multiple identities for different contexts.
One of the things that makes me angry about this sort of case is that I can't think of a way to word legislation such that (under rape culture: the existing legislation would be more than adequate if we weren't) this would be illegal, but legitimate omissions about one's past or other identities would not be, especially in the context of a government (and much of the populace) which believes that people can legitimately only have one identity.