Reluctant Consent

by Margaret Barnes

  ‘I was hoping to get home early. The other half has been in a bit of a huff. But I need the money. How about a drink, Cassie?’

  A glass or two of wine might steady her nerves and chatting with Stephen would be a distraction from both her case and the stalker.

  Daley’s wine bar was on the corner of Fleet Street and Essex Street and was a favourite haunt of lawyers. It was often packed but tonight they were early enough to find seats. The bar was large and Cassie spotted a couple of unoccupied chairs by a table in a corner where she hoped they would not be interrupted. This was a good opportunity to ask Stephen what he knew about the chambers meeting the next day.

  ‘Not much,’ he said, ‘but I think Richard is really looking for a vote of confidence in the way he runs the set. Eleanor thinks we aren’t on top of financial things, and, well, I’ve heard something about downsizing the premises.’

  Cassie was taken aback. She felt they were stuffed in like sardines as it was. ‘No way, it’s like a cattle truck in there, we’re hot-desking as it is.’

  ‘Yes, but how much work do you do in chambers? We all work from home now. We only come in to collect papers and it’s somewhere to house the clerks. Some of that can be done at home as well. Zoe only comes in twice a week.’

  ‘I know, I quite miss her and her brightly coloured jumpers. When I was a pupil we used to take bets on what colour it would be that day.’

  ‘What about the Hales problem?’ Stephen said.

  ‘I’ve passed on the Cotburn Mews address … they can’t take that any further, Alex says.’

  Before Cassie could say anything more, she saw Hamish coming towards them. ‘Thought I’d find you here, sir,’ he said, handing Stephen a thin brief. ‘I was coming this way and thought I’d bring it for you. Save you going back to chambers.’

  ‘Thanks. Do you want a drink?’

  ‘Not here, sir,’ Hamish said, looking round at the groups of barristers in their detachable collars collecting round the bar and tables. ‘I’m meeting some of my colleagues in the Cheshire Cheese. See you.’

  Chapter 34

  Cassie spent the evening writing out her speech in the Sadler case. She was meticulous in her preparation; two lives hung on it. She knew that, but her objective was the acquittal of the defendant – he was her client, not the young woman. Sadler was facing seven years in prison, his life totally destroyed. Even the fact of the allegation left him vulnerable. He’d already been suspended from work and for the rest of his life he would have it hanging over him. She caught her own emotions and trapped them in the recesses of her mind; they were not for now.

  She liked to have a narrative to her speeches: a beginning, a middle and an end. What was there about this case to which members of the jury would relate? What would make them say they understood what had happened that night? Cassie believed the very ordinariness of the events were the key to a not guilty verdict. Boy meets girl, they like each other, there’s a mutual attraction and after meeting a few times they make love. The hurdle she had to leap was why Emma Gilbrook had cried rape. She was sure Hugh would make that point with great force. Cassie thought she could argue the answer lay with her mother. Rose Gilbrook’s outburst about her daughter’s virginity had been a significant moment in the trial.

  She began tapping the keys of her computer.

  ‘There is only one issue in this case and that is: did Emma Gilbrook consent to having sexual intercourse with Paul Sadler or did he have a reasonably held belief that she did? She says she didn’t want to have sex with him and that she simply submitted to him because she didn’t know what else to do. Was that really what happened? The defendant, it has been suggested, used the Rush Hour Crush notice to entice this young woman to meet him. Again, there was nothing unusual about that. Many relationships begin online these days. Emma Gilbrook responded to the message; she didn’t have to do that. Unlike online dating Paul Sadler had no other information about her. If she had ignored it he couldn’t have pestered her or put any pressure on her. She contacted him because she remembered him and she thought he was an attractive man. What was it she said, he was smartly dressed, handsome?

  Emma Gilbrook had met the defendant on three separate occasions and she says she enjoyed his company. Presumably that’s why she agreed to see him after the first meeting in Holland Park and again after seeing him a week later in the pizza parlour. If she hadn’t liked him she wouldn’t have met him on the night in question. The Crown suggest that by asking her to an expensive restaurant, he was grooming her. If that’s right, an awful lot of dates are grooming. Isn’t it just ordinary for a man to ask a woman out and to pay for her meal?

  Throughout the first two meetings there was nothing to make her afraid of him. She wouldn’t have met him if there had been. He had walked her to her bus stop, held her hand, kissed her on the cheek as they parted. All very normal, just what you would expect from any young couple feeling their way in a new relationship. There was a little more physical contact on their third date. In a romantic gesture they held hands across the table in the restaurant.

  Like a lot of young people today neither of them lives in their own home. It’s difficult to have any privacy to explore a relationship. Emma Gilbrook, however, had access to her friend Anita Connor’s flat. She was the one who suggested they should go there. One of the questions you will have to consider is whether she is telling the truth when she says she thought her friend would be there. Anita Connor, reluctantly you might think, told you she had said she would be out and didn’t know what time she would be back. Knowing the flat would be empty, why did Emma Gilbrook take the defendant there? At the very least it must have been to spend time alone with this man who she found attractive. To pursue their romance.’

  She stopped typing. What was she going to say about Rose Gilbrook? She didn’t want to criticise the mother too forcefully. A mother who tried to control her twenty-year-old daughter’s life. A mother who believed her daughter had not had sexual intercourse before. Had Emma made the allegation to save herself from explaining to her mother where she had been the night before? From being questioned too closely about who she had spent the evening with and what had happened. Was it to deflect attention from behaviour of which she knew her mother disapproved? It was Rose who had phoned the police, not Emma. Rose who had screamed at Sadler on the phone accusing him of mistreating her daughter.

  She continued with her speech.

  ‘One piece of evidence you may want to think about is Rose Gilbrook’s response to Paul Sadler’s call the next day. There is no real disagreement that Rose Gilbrook was so angry she wouldn’t listen to anything Sadler said. She told you he wanted to persuade her daughter to withdraw her allegation, yet he could not have known she had made a complaint. He didn’t mention the night before. He was asking Rose Gilbrook to pass on a message about his inability to contact Emma as he had said he would because of his shifts. Of course, it is understandable she was angry, but not to jump to the conclusion she did.

  What too of her statement that her daughter was a virgin? As we know from the doctor’s evidence, that was not the case. Most of us don’t discuss our sex lives with our parents, but even so, to assume a twenty-year-old has not had sexual intercourse in today’s world seems unusual. Has Emma encouraged that belief? Did Emma want to maintain a mask of innocence? Was that what Emma Gilbrook was afraid of, her mother’s anger?’

  From defending in many similar case, Cassie believed that jurors looked at their own sexual experiences and compared the events they had heard described in court to their own. Some of the men, she believed, would identify with Sadler and think they had been fortunate not to have a similar allegation made against them. Others, perhaps, had daughters and would want to be as protective towards Emma as they would their own child. There was little she could say to them, but to the women, she could rely on a shared understanding of life. When she addressed them about the issue of consent, she would say there were many situations where we don’t want to do
something but we agree to it. She often used the example of going to work or doing jury service. Then she would add that the same applied to sexual intercourse where consent is given for many reasons: love, not worth the argument, the easiest way. Inevitably most of the female jurors would nod in agreement.

  What was she going to say about Paul Sadler? The prosecution had spoken about the age difference. She continued writing.

  ‘He is twenty-nine. Some years older than Emma, but she was used to having older friends, indeed seemed to prefer them. He had a long-lasting relationship with Linda Callender. Throughout that time, some seven years, they were sexually active, and she says at no time did he force her to have sex. Encouraged, yes, but she was not pressurised into having intercourse when she did not want to. She describes him as loving and affectionate, not the man for her, but she was clear she did not believe he was a rapist.

  Paul Sadler’s account of the events that evening don’t differ very much from those described by Emma Gilbrook. He says at all times throughout that evening he believed she was consenting to sexual activity. Apart from one occasion when she said no, and he stopped, she never told him she did not want to go any further. She says she simply submitted to what he wanted. Is that an accurate description of what was taking place?’

  Cassie stopped and read over the paragraphs she had just written. She didn’t want to say the young woman had lied, although that was always the implication. Wasn’t there room for confusion by the complainant, at one moment not wanting to have intercourse but seconds later physical desire overcoming the reluctance. She didn’t think it was possible to say that in her summing up. She had to rely on the way Emma had responded to Sadler’s advance. She began typing again.

  ‘She had a number of opportunities to stop Sadler from having intercourse with her. She took off her blouse, folded it and placed it on a chair. She helped him remove those tightly fitting jeans. When he went to get the condom from his jacket pocket in the sitting room, she stayed on the bed. When he struggled to get the condom on, she helped him. And then having had intercourse with him he left to go to the bathroom and she remained on the bed waiting for him to come back. The second time they had intercourse she was on top of him. I have no doubt the learned judge will tell you that people react very differently to the threat of rape, some fight all the way and others simply submit. He will also tell you that some give consent reluctantly. Perhaps confused themselves about what they want in that relationship at that moment. You have to be sure Emma Gilbrook did not give her consent and that Paul Sadler did not believe she was consenting. I submit that Emma Gilbrook was attracted to Paul Sadler, and by her actions that night she indicated she was consenting to having sexual intercourse with him. How could he have believed anything different?

  Members of the jury, one final comment. The prosecution bring this case and they must prove it. It is not for Paul Sadler to prove anything. Before you can convict you must be sure Emma Gilbrook did not consent to sexual intercourse with Paul Sadler. If you think she did consent or you think she may have consented then you must find Paul Sadler not guilty of the offence of rape. If you think Paul Sadler believed she was consenting and that belief was not unreasonable, or you think that he may have held such a reasonable belief, then again you must acquit.’

  She would then thank the jury for their attention and sit down, hoping she had done enough to persuade them Sadler was innocent.

  Before he began his summing up, Judge Tyte addressed Cassie and Hugh. ‘I have prepared a summary of the directions I intend to give in this case.’ He passed a sheaf of papers to the clerk sitting in front of him. She waved them at the court usher who dashed forward, grabbed the bundle and then handed them to the two barristers.

  ‘You should have two pages. Do you want time to consider them?’

  Hugh Palmer didn’t look at his copy before saying, ‘Yes, My Lord.’ Cassie confirmed she too would like the opportunity to consider the directions.

  ‘Of course. Fifteen minutes then.’ Judge Tyte trotted off the bench.

  Cassie wandered out into the concourse and sat down on one of the leather-cushioned marble benches. Lee came and sat beside her as she read the document.

  ‘The case you are to try is an allegation of rape. I have already told you to put out of your mind any stereotypes or assumptions you might have. In particular you should bear in mind that there is no one classic response to the trauma of a serious sexual assault.

  It is for the prosecution to prove that Emma did not consent to Paul Sadler having sexual intercourse with her and you must decide this issue by looking at all the evidence. When you do so it is important to recognise that the mere fact that Emma took the defendant to her friend’s flat and willingly engaged in kissing him does not mean that she must have wanted to go on to have sexual intercourse and must have consented to it. A person who engages in sexual activity is entitled to choose how far that activity goes and is also entitled to say “No” if the other person tries to go further.

  It is not suggested that, before or at the time Sadler had sexual intercourse with Emma, he either threatened her with force or that he used any force upon her, and it is clear Emma did not put up any struggle. It is also common ground that she did not suffer any injury. The defence say that this is because Emma fully consented to what took place. Emma on the other hand gave evidence that when Sadler led her to the bedroom she became frightened and did not know what to do. You will have to resolve this issue by looking at all the evidence, but it is important to recognise that the mere fact that Sadler neither used nor threatened to use any force on Emma and that she did nothing to prevent him from having sexual intercourse with her does not mean she consented to what took place. As I have already said, experience has shown that different people may respond to unwanted sexual activity in different ways. Some may protest and physically resist throughout the event, whilst others may, whether through fear or personality, whilst they did not consent, be unable to do so. It is important to draw a distinction between consent and submission. A person consents to something if, being capable of making a choice and being free to do so, she agrees to it. Consent in some situations may be given enthusiastically, whereas in others it is given with reluctance, but nevertheless it is still consent. But when a person is so overcome by fear that she lacks any capacity either to give consent or to resist, that person does not consent but submits to what takes place. It is for you to say, having considered all the evidence, what the situation was in this case, bearing in mind that it is for the prosecution to prove that Emma did not consent to Sadler having sexual intercourse with her.

  If you are satisfied so that you are sure Emma did not consent then you should go on to consider whether Sadler believed she was consenting. If you come to the conclusion that Sadler, as he says he did, believed she was consenting then you should ask yourselves if such belief was reasonable. There is no obligation for him to have taken any specific steps to ascertain consent. Look at the evidence and use your experience of life to decide if that belief was reasonable or may have been reasonable. It is for the prosecution to make you sure he did not reasonably believe she was consenting.’

  ‘Nothing we can complain about there, is there?’ Lee said.

  ‘Not really. It’s such a thin line between reluctant consent and submission. How can any man be acquitted?’ Cassie said.

  ‘But they are. Often.’

  ‘I think jurors rely on their own experiences. If they decide this is a normal courtship routine and it reminds them of their own sexual relationships and how they had begun. Sometimes the media make it seem so black and white when it’s really a murky shade of grey, particularly in this type of case.’

  She read the directions again. This time she thought about her own background and her failed marriage.

  Hugh Palmer had no objections to the directions either, so Judge Tyte had the jury brought into court and summed up the case to them. As he told them what consent meant, Cassie noticed a numb
er of the jury frowning, their brows furrowed. Judge Tyte must have seen that as well because he told them they would have a copy of his legal directions to take to the jury room with them. Cassie didn’t think it was the words that confused them; it was wondering how to apply that test to the evidence they had heard.

  Once Judge Tyte had finished, Cassie asked for bail for Paul Sadler. ‘Within the precincts of the court,’ the judge said. Cassie pulled her papers together, leaving them stacked neatly. Out in the concourse, Paul Sadler sat down on one of the marble benches, covered his face with his hands and bent over. Cassie sat beside him. She couldn’t tell if he was crying or not. She put her hand on his shoulder and, after a minute or so, he lifted his head.

  ‘What happens now?’ he asked.

  ‘We wait.’

  ‘How long?’

  ‘I don’t know. I don’t think the judge will give them the majority direction before this afternoon.’

  A shadow crossed Sadler’s face. ‘A majority?’

  ‘After the jury have been considering their verdict for over two hours, the judge can tell them that if at least ten of them are agreed on a verdict that’s enough. I think this judge will give them longer than that if they don’t return a verdict quickly.’

  Sadler shook his head and lowered it down towards his knees again. He breathing was irregular and from time to time he shuddered. Cassie remained sitting next to him. She didn’t want to leave him alone in such a distressed state. She turned to look along the gallery towards the stairs and the lifts. To her relief she saw Lee walking towards them. Lee could take over chaperoning Sadler while she made some phone calls.

  About an hour later she returned to Court 12. Lee was outside the court, sitting on the bench she had vacated, but there was no sign of Sadler. She was about to ask Lee where he was when she heard footsteps behind her. She hadn’t seen him as she had made her way along the concourse. He walked, head down, to the end of the gallery, turned and retraced his steps to the other end, turned and headed back in the direction he had just come from.