Gascoigne cleared of sexual assault
a perfectly no… 17 Oct 19 14:18
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jury still considering “assault by beating” charge

On the basis of the facts reported, it is surprising they thought they had a chance of making sex assault stick.

I have to agree.  He was being a twat but he wasn’t trying to shag her.

The thing is, for anything that doesn’t involve an actual assault on the genital area, it is always going to be difficult to prove sexual motive in the basis of any half-credible defence. And in those circumstances I suppose the CPS and police would say - with some reason - “well what would we say to victims then, sorry there’s no point prosecuting your complaint because nobody ever gets convicted in cases like this?”. So I guess they have to if the complainant is credible and there is some kind of evidence.

For all that, I did find Gascoigne’s defence here credible, on the basis of what we know. It’s the kind of dumb thing he would do. He has a history of trying to be kind to people in weird ways eg bringing Raoul Moat fish and chips.

This is interesting. The law has changed since I studied it. Sexual motive is no longer required, instead the touching must be “sexual”. Here is s78 of the SAO 2003:

”touching or any other activity is sexual if a reasonable person would consider that –

  1. whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
  2. because of its nature it may be sexual and because of its circumstances of the purpose of any person in relation to it (or both) it is sexual.”

A wonderfully Blairite bit of “if it’s an elephant, convict; we won’t define an elephant but you’ll know it if you see it” drafting.

I can see how it was difficult to prove a kiss was sexual on this definition, on the basis of conflicting witness testimony 

Jesus, that is awful drafting. It would genuinely be more helpful if it said "It's sexual if you think it is."

It is very difficult to prove beyond reasonable doubt that something fits that definition; ironic since I imagine the intention was to make it easier for charges to stick.

It wasn't sexual assault, just a Gentle Touch.

SAO 2003 is poorly drafted throughout but this never seemed like a sexual assault. It's likely to be an assault, it could be s.5 POA too - I'd be alarmed if Gazza kissed me without warning (or with).

Kimmy

17 Oct 19 14:50

isn't kissing someone sexual? 

=

Depends.

I think it fairly obviously depends, and to judge whether or not it was sexual in a specific case you may well need to know quite a lot about the subtleties of the context, which are going to be very difficult to prove beyond reasonable doubt from the kind of evidence usually available in these cases ie (presumably conflicting) witness accounts.

It’s a hopeless definition of an offence. I recall that sexual motivation used to be required, so the aim of the redrafting was presumably to adopt a conventional mens rea of intent to commit an objectively defined act. Except they couldn’t actually come up with an objective definition of that old chestnut, the sex(ual) act.

Faced with an actual reus that refers to what the reasonable man would think, any juror is just going to revert to “what I would think”. So it’s “has it been proven to you beyond reasonable doubt that this was an act you would think was sexual?”. 

To be fair, there are many cases where this could be done, but with something like a kiss I think it’s always going to be difficult.

As I understand it the defence seemed to be basically that the alleged victim was fat and ugly so the motivation clearly wasn’t sexual and must have been sympathy.  Must have been pretty humiliating for her to sit through that.

Kimmy, take that question up with Tony Soprano

Further confirmation that all Harriet Harman style laws passed in the Blair era should just be repealed as vote hungry nonsense 

Was in Leeds all day today. On train back, bumped I to QC friend of mine.

'been doing anything good?' I asked.

Yes. She's been defending gazza all week. While I was lecturing people about spreadsheets. Wow. 

Slightly scary that part of his defense relied on him slurring because he didn't have his dentures in.