Kevin Donoghue reviews the law in police sexual misconduct matters in response to a recent government report and question raised on social media.
This week His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services published a report titled: “An inspection of vetting, misconduct, and misogyny in the police service.”
It found that hundreds of police officers who should have failed vetting checks may still be in the job.
Sadly, this is not news. As I pointed out in this October 2019 blog post, police vetting failures have been a problem for years, and mean that forces are failing in their duty to protect the public.
The HMICFRS report noted that, “of 725 sample cases closely examined in the review, there were concerns about 131 officers cleared to serve in police forces – but the watchdog said the true total could be much higher.”
This means that at least 18% of police officers have issues which ought to disqualify them from serving.
What kinds of issues? As the BBC noted, Matt Parr, the report’s author and HM Inspector, found evidence of “one officer convicted of domestic abuse and one accused of sexual assault were among those accepted.”
Importantly, the report highlighted that misogyny (the dislike of, contempt for, or ingrained prejudice against women) and predatory behaviour by police officers is rife. And it is not limited to abusing members of the public. Serving police staff and officers are frequently on the receiving end of sexual abuse by their own colleagues. This concerning issue was highlighted in a key section of the report, which is worth quoting in full:
One-to-one telephone interviews with survey respondents revealed misogynistic and predatory behaviour
Of the 11,277 officers, staff and volunteers who responded to our survey (this was the highest ever response to one of our surveys), 668 volunteered for follow-up interviews with us. We interviewed 42 of them (all except one were women). Their accounts included sensitive detail, some of which amounted to allegations of criminal offences. These included female officers and staff alleging sexual assault by male colleagues in the workplace and at social events. Other, less serious matters (some of which may nevertheless amount to misconduct, and in some instances possibly gross misconduct) included:
- senior male officers pursuing women in lower ranks for sex, including via the force email system;
- viewing pornography at work – for example, male officers (including supervisors) viewing pornography on suspects’ phones (not as part of investigations) and inviting other officers to view the images on screen;
- sending pornography to female colleagues’ phones;
- inappropriate sexual comments by male officers, including comments about a victim’s breasts, comments about vulnerable sex workers who were victims of crime, and many other disparaging and insulting comments about female victims in general;
- at work-related social events, a senior male officer pestering female colleagues for sex. He sought to take advantage of those who he could see had clearly been drinking alcohol;
- male officers making a point of stopping cars driven by women they regard as pretty, a practice they referred to as “booty patrol”; and
- male officers, including supervisors, making sexually explicit comments about female members of the public.
Telephone interviewees told us that, in many cases, the perpetrator was someone who had previously been reported for similar behaviour, which either hadn’t been taken seriously or hadn’t been thoroughly investigated.
Much of the sexual misconduct the interviewees described could be an indicator of similar conduct towards members of the public.
Social media reaction to the HMICFRS report
Knowing all this, how do you think some on social media reacted? Well, one Twitter user, “@pillarsofjusti1”, asked this about police officers’ abuse of position for a sexual purpose:
OK, but how is a male cop having a consensual relationship with a grown woman “abuse”? I dont get it. Also how is it “misogyny” to have a consensual relationship with a grown up adult woman? Unprofessional yes, but how is it any kind of abuse? I want to believe
They went on:
I would argue this person is actually spreading a bit of the old “rape propaganda” here. In terms of cops having relationships with women, how can there be any “abuse” if the relationship is between consenting adults? volenti non fit injuria , what is the abuse exactly?
The Twitter profile for Pillarsofjustice says: “I was falsely accused of rape and I want justice, for me & all the other men & women falsely accused of sex offences. The government enables false accusers.”
It is possible that this person may have a biased viewpoint. But, putting that aside, are they right that there is no “abuse” in a relationship between what they describe as “consenting adults”, even if those involved are police officers and their colleagues or members of the public? Let’s look at what the law and practice say.
Defining police sexual misconduct abuse
The issue of police sexual misconduct and abuse is at the heart of the above tweets. A 2016 Her Majesty’s Inspectorate of Constabulary (HMIC, now HMICFRS) report described this grave problem as the “most serious” form of corruption facing police forces in England & Wales.
This is because this abuse of power “fundamentally betrays the trust that communities and individuals place in the police”. It has various names in official reports, all starting with “police abuse of”, and ending with:
- powers for a sexual purpose
- position for a sexual purpose
- authority for sexual gain
- authority for a sexual purpose.
Police abuse of position for a sexual purpose is briefly defined by HMICFRS as:
“behaviour by a police officer or police staff member, whether on or off duty, that misuses their position, authority or powers to pursue a sexual or improper emotional relationship with a member of the public.”
That definition was expanded upon in another HMICFRS report, “Shining a light on betrayal: Abuse of position for a sexual purpose” to include:
“Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.”
The key takeaways from that longer definition are in bold. They are that:
- “Any behaviour” is deliberately broad. It includes initiating or responding to perceived (even if not actual) sexual or improper emotional contact with the public
- Consent is not a factor. Police officers or staff who abuse their position for a sexual purpose are not deemed to have consent for the purposes of a civil claim or disciplinary proceedings. And, as I describe later, criminal proceedings can follow.
How police officers abuse the imbalance of power
Why do various HMICFRS government inspectors agree that this form of police sexual misconduct is an abuse which must be vigorously addressed?
The answer is because of a fundamental truth: there is an imbalance of power between police officers and:
- the public
- their colleagues (where there is a perceived or actual imbalance).
Police officers are not just anyone. They are agents of the state, who have vast, and increasing, powers they can abuse to control or coerce individuals to fulfil their corrupt desires.
For an example, read the case report of my client Samantha McTavish. She bravely came forward to raise public awareness of police sexual misconduct and abuse after being groomed by a Devon & Cornwall Police officer.
As I explained in this blog post (How Police Officers Groom People for Sexual Abuse), the officer who abused Ms McTavish used a well-known “playbook” to exploit his vulnerable victim for sex. The abuse of, and imbalance of, power meant that Sam could not consent. It did not matter that the officer, or others, argued that it was consensual. As Sam said, “I should never have been put in that position to consent or otherwise. He shouldn’t have come to my house pursuing sex.”
(As a side note it is interesting that Devon and Cornwall Police is the same police force which, the recent HMICFRS report noted, found that: “Without exception, every female respondent interviewed in the cultural audit reported experiencing some form of sexual harassment or discrimination in the workplace.” Clearly, that force has internal and external issues with which to contend.)
And it is important to understand that this form of corruption does not have to result in intimacy. As my client Kristina O’Connor experienced, being propositioned by Metropolitan Police officer DCI James Mason during an official interview and subsequent text messages was grounds for a finding of gross misconduct against him.
How the law handles police abuse of position for a sexual purpose
It is important to understand that in:
- criminal law
- civil law
- police misconduct disciplinary hearings
there are different rules and tests when dealing with police sexual misconduct and abuse.
1. Criminal offence: misconduct in public office
Police officers found to have abused their position for a sexual purpose can be convicted of the serious criminal offence of misconduct in public office, which is defined by the Crown Prosecution Service as:
The offence is committed when:
a public officer acting as such;
wilfully neglects to perform his duty and/or wilfully misconducts himself;
to such a degree as to amount to an abuse of the public’s trust in the office holder;
without reasonable excuse or justification.
Proving this offence requires the high criminal standard (beyond reasonable doubt). Convictions can result in prison time.
2. Civil law tort: misfeasance in public office
In civil cases, the relevant “tort” (a civil wrong) which gives rise to damages is misfeasance in public office.
Applying the tests laid out in Three Rivers DC v Bank of England, misfeasance in public office is shown when:
- the person whose conduct is in question is a public officer, and the conduct was an exercise of his or her power in that capacity;
- s/he intended to injure the claimant by the exercise of that power, or knowingly/ recklessly acted in excess of that power;
- by this the officer caused damage to the claimant; and
- the officer knew (or anticipated) that the act would probably cause damage of the kind actually caused.
Misfeasance in public office is proven on the lower legal standard (the balance of probabilities) and can result in civil compensation claims against the police force. Read more about this and the law in civil actions against the police by clicking on the link.
3. Police disciplinary and misconduct proceedings
While there is no direct counterpart to these criminal and civil aspects in police disciplinary matters, police misconduct panels can find gross misconduct for breaches of the police’s Standards of Professional Behaviour.
For example, in this blog post I explain how a Disciplinary Panel found the aforementioned DCI Mason liable for breaches of “Honesty & Integrity, Authority, Respect & Courtesy and Discreditable Conduct.” (Shamefully, despite all eight allegations being proven, Mason kept his job in the Met.)
The police have even included a specific reference to police abuse of authority for sexual gain in the College of Policing’s Code of Ethics. While it does not have the full force of law, page 6 of the Code states that police officers and staff must:
“not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power.”
Officers dismissed for gross misconduct can be put on the police’s “barred list”. But, despite what the police and some in the media would have you believe, this does not necessarily end their careers as I explain here: What You Should Know About the Police Barred List.
Why volenti does not apply (and is misunderstood)
“Pillarsofjustice” raised an interesting legal point in their second tweet: “volenti non fit injuria, what is the abuse exactly?”
Volenti non fit injuria is a Latin term meaning, “to a willing person, it is not a wrong.” It is a legal concept which says that a person who knowingly and voluntarily risks danger cannot recover damages for any resulting injury.
As I have shown, police abuse of position for a sexual purpose means that victims cannot provide consent in civil and police misconduct cases due to the imbalance of power.
Consequently, volenti does not apply.
Public understanding of police abuse
Pillarsofjustice raised important questions in their tweets. I hope that by detailing the law, and official police guidance, it is clear to them and others reading that police sexual misconduct is a serious form of abuse which must be stamped out.
Kevin Donoghue is a solicitor and specialist in police abuse of authority for sexual gain compensation claims. As you can read on Mr Donoghue’s profile page, he has considerable experience in this area of law and trains other lawyers in it.
Legal professionals can learn more about this topic in Kevin’s recent MBL Seminars training course: An Introduction to Sexual Misconduct Claims Against the Police & Other Detaining Authorities.