Gender based (state) violence: why the sexual infiltration of social movements is a violation of human rights

The police tactics right from the beginning of the student movement have been abominable.  They’ve kettled us, charged us with horses and beaten protesters with batons.   Police have patrolled university campuses.  They’ve infringed our civil liberties through only allowing protestors to leave a kettle by taking their photo.  They’ve infiltrated our lines of communication.  And they’ve consistently made out like we’re the out-of-control, violent ones.

But the revelations about police infiltrations of Climate Camp are taking the infringement of rights to new and profoundly disturbing levels.  According to a Guardian interview with a former undercover agent, police officers were ‘cleared’ to have sex with activists.  This is wrong.  This is very, very wrong.  Why?

1. Consent and rape law

Sex without consent is rape.  The definition of consent in UK law is “if she agrees by choice, and has the freedom and capacity to make that choice”.  The victim must have had the freedom and capacity to make the choice of whether she wanted to have sex with the man in question.  If the perpetrator is knowingly concealing their identity they are withholding relevant information from the woman, thereby reducing her capacity to make an informed and free choice.

The women and men who had sex with undercover officers may well have consented at the time.  But they consented on the basis that the person they were having sex with was a fellow activist – someone they thought they knew and could trust.  The police officers were lying about their identity; the activists didn’t know they were having sex with police officers.

‘Rape by deception’ or ‘rape by fraud’ is outlawed in several states in the USA.  “The rationale is that the identity of the victim’s sexual partner is part of the act to which the victim consents” (Christopher and Christopher, 2007).

The traditional paradigm for deciding whether fraud vitiates consent, constituting rape, is the distinction between “fraud in the factum” and “fraud in the inducement”.  Fraud in the factum means that the victim consents to the act X, but the perpetrator in claiming to do X, does Y instead.  For example, if a doctor penetrates a woman’s vagina with his penis, claiming it is a medical instrument, it is fraud in the factum.

Fraud in the inducement means where the victim is fraudulently induced into the act X, and the perpetrator does X.  For example, if a doctor claims that having sex with the victim is of medical benefit.

Fraud in the factum legally constitutes rape in many US states.  Fraud in the inducement does not.  However, modern rape law is changing because there is an emerging consensus within US legal theory that this distinction is arbitrary.  Its influence is dissipating and some legal jurisdictions refuse to acknowledge it, arguing that all types of fraud used to obtain sex are illegal.  The feminist lawyer, Susan Estrich, has influentially argued that the same restrictions that apply to fraud to obtain money should also apply in rape law.  Also, the recognition that rape constitutes an infringement of sexual autonomy, rather than constituting a crime of violence, supports this shift in the definition of consent.

As far as I am aware, rape by fraud is not an offence in UK law.  Although deception of a person with a mental disorder to procure sex is a criminal offence and can result in life imprisonment.

There are strong reasons in favour of criminalizing rape by fraud.  Even if you don’t agree with the criminalization of this act, it’s hard to argue that it is not immoral.  And even if you don’t agree that it was immoral, there are other factors at play in this specific case.

2. Human Rights

The primary role of the state is to protect its citizens.  However, states can and have used the power entrusted in them against their own citizens.  Human rights are restrictions on the state to protect individuals against unjustified interference by the state, or to enable citizens to make claims on the state to fulfil their basic needs.  They are enshrined in the Universal Declaration of Human Rights, which is binding in international law.

The police force is an instrument of state power used to coerce citizens to protect other citizens.  Police officers are agents of the state.  As such, they have violated the following human rights:

Article 3.Everyone has the right to life, liberty and security of person.

‘Security of person’ meaning not to be physically violated by state agents.

Article 5.No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Using people for sex to gather information is cruel, inhuman and degrading.

Article 18.Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Members of left-wing and environmental movements have been denied their freedom of thought and conscience, to the extent that police think they can physically exploit them to garner information.

Article 19.Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

We all have the right ‘to hold opinions without interference.’  The police infringed this right by interfering sexually and emotionally with activists.

Article 20.(1) Everyone has the right to freedom of peaceful assembly and association.

People at Climate Camp had the right to assemble peacefully.  The police violated this right by covertly infiltrating the movement.

Article 28.Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

The UK government is not providing a social order where our human rights can be fully realized if state agents are secretly infiltrating protest groups and having sex with people to get information.

Article 29.(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

The only limitations to our human rights must be determined by law and must be grounded in protecting the rights and freedoms of others – having sex with activists under false pretences is not legal and protects the rights of nobody.

So, the state has violated SEVEN fundamental human rights.  This is illegal.  It is a violation of international law.

3. Motivation

Why would the police violate individuals’ human rights in this way?  What motivated them?  A possible explanation is that they are trying to undermine these movements in the eyes of the general public.  Consider this quote from the article:

“As regards being with women in very, very, very promiscuous groups such as the eco-wing, environmental movement, leftwing, or the Animal Liberation Front – it’s an extremely promiscuous lifestyle and you cannot not be promiscuous in there.”

In any group of people you will get promiscuous, averagely sexually active, non-promiscuous, and abstentious (by choice or by chance) individuals.  To claim that certain social movements (all dissident movements) are extremely promiscuous is absurd.  This is a political move to make us look ‘bad’ in the eyes of the moral majority.

This ridiculous claim also provides the police officers with a ready excuse to have sex with as many activists as possible.  Both for their own pleasure and to get as much information as possible.

4. Sexual exploitation by the state

Sex was seen as entirely instrumental to uncovering information about the movement – “Sex was a tool to help officers blend in, the officer claimed, and was widely used as a technique to glean intelligence.” It was a “tool” for the exploitation of activists to further police ends.  The instrumental use of women’s bodies (sexual exploitation) to gather evidence against them.

Imagine how you would feel if you were used in this way.  Humiliated?  Degraded?  Like you’d let your friends down?  Ashamed?  Sullied?  Used?  Exploited?  Traumatised?  Violated?  Even if you don’t believe this was rape by fraud, this doesn’t sound like a consensual sexual experience to me.  This sounds like exploitation by the entity that is supposed to protect you.

It is up to each of the affected parties to determine how they feel about and define what has happened to them.  From a moral perspective they were induced to have sex by fraud, and from a human rights perspective their rights have been violated by the state.  If they wanted to argue that they have been raped and their human rights violated, I believe they would be perfectly justified in doing so, and they can certainly argue they have been sexually exploited by the state.

5. The Feminist Perspective

Feminists have argued for decades that the state is gendered, and its gender is male.  The state is male because it was created by men, for men, to further men’s interests.  This seems obvious when you consider that women only recently, historically speaking, have been granted the same rights as men – such as the right to vote or own property – or were protected by differentiated legislation that took into account their specific needs – legislation against marital rape, discrimination in the workplace and the equal pay act.  For women’s voices to be heard and our interests taken into account we have had to fight and fight and fight… and the battle continues.

The Guardian article claims that both male and female officers were sanctioned to have sex with activists.  But so far, the only police that have been revealed as being involved have been men and I would hazard a guess that the majority of police officers engaged in this particular activity were men.  I don’t have evidence for this.  I cannot verify it.  But I would be extremely surprised if the majority of these cases didn’t involve male officers (maybe I’ll be proved wrong, we’ll see…)

If it turns out to be the case that this was a majority male activity, from a feminist perspective, it represents the move from the metaphorical violence of the male state against female citizens to the actual physical, sexual violation of women’s bodies to maintain state control and dominance.  Of course, the male state regularly turns a blind eye to gender-based violence – the conviction rate for rapists in the UK is 6%, and police rarely prosecute for ‘domestic’ violence despite the fact 1 in 4 women will experience it in their lifetime.  But state agents violating women’s bodies to glean information in order to better control dissent is an utterly shocking violation of women’s rights. It is the ultimate means of the dominance, pacification, and coercion of women citizens.

For all these reasons, the undercover infiltration of social movements and the sexual abuse of their members is wrong – morally and legally.  The police have raped citizens, violating fundamental human rights.

Some of the women involved are considering legal action.  They hope to prosecute the police officers and their superiors for the criminal offence of misconduct in public office.  The courts will not recognise this as rape.  They will probably not recognise the violations of human rights involved.  They will definitely not link it to wider structures of male domination in society, or recognise the attempt to undermine leftwing movements’ reputations.  But that does not mean all these dimensions of this crime do not exist.  They do.  This should not be going on in a liberal democracy, not in any country.

Links: http://www.rapecrisis.org.uk/index.php

http://www.thehavens.co.uk/

http://www.womensaid.org.uk/

http://www.eaves4women.co.uk/

Protest Mon 24 Jan - http://www.facebook.com/event.php?eid=140764372651295&index=1

10 Comments

Filed under Gender Based Violence, Human Rights, Student Protests

10 responses to “Gender based (state) violence: why the sexual infiltration of social movements is a violation of human rights

  1. Pat

    Hello,

    Some suggestions

    1) is the cps aware of acpo using officers in this way? I wonder if an accusation of rape possible if the cps are aware? Would they not be too involved in this process to be independent? This leaves option the suggestion that this cps has acted ultra vires.

    2) with whom did acpo clear their decision to allow informants to have sex with? It would seen logical that it was with the government?

    3) although the law is written by government, the court can interpret a law in the spirit of which it was written. Ergo rape by fraud could be possibly developed in court, and not via the statute book.

    4) the courts are not a single entity. The civil court is not ran by the cps, and has a different system for deciding on guilt (balance of probabilities rather than beyond reasonable doubt). You can process a rape case through the civil courts I believe, and I think claim damages.

    5) assault and gbh have provisions for mental damage as part of their statutes.

    6) in no way to make some crap male comment, in the 70s the police infiltrated the NF, often using known homosexual officers as this meant sex would give them extra scope to obtain information.

    I would agree though that it is the state versus peoples bodies, and that the clear failure of the state to ameliorate the issues for women in this area is shameful, and this is exploiting that scope to a terrifyingly blasé level.

    That no mp has spoken against this is as shocking. Increasingly this seems to be a them and us state.

    I think this is a case for a human rights Lawyer to progress this. Happy, if not compelled, to contribute to a fund to progress this.

    Have written an essay. Sorry.

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  3. Wow Maeve, well done. I’ve set three alarms to get my arse out of bed tomorrow (Monday) morning – hopefully I’ll see you there!

  4. I’d have to know more about this situation to know if it is rape. Simply hiding their identity as police officers is not enough to make it rape. However, the example given about the doctor claiming it’s a medical procedure is rape.

  5. PJ

    I worry about what any legal definition of “rape by fraud” would look like and where the line would be drawn. For example, could we be left with a situation where it would esssentially be criminal to sleep with anyone that one had not been 100% truthful with in every possible way?

    • I want to respond briefly to the concerns about “where to draw the line” in cases of rape by fraud, because this question is easier to answer than you might think.

      As mentioned in the post, rape by fraud is a crime because, “the identity of the victim’s sexual partner is part of the act to which the victim consents.”

      It has been applied very sparingly in the US. One famous case was where a woman had sex with a man she believed to be her husband, but it turned out it was her husband’s identical twin brother. This was ruled to be rape by fraud because the identity of the man fundamentally changed the nature of the sexual act. It turned from sex with one’s husband to adulterous sex. Something the woman did not, in any way, consent to.

      In the case of the police officers, the women were consenting to sex with a man they believed to be a friend or colleague, and who held the same political views as them. However, the men were in fact agents of the state, and were using sex to procure information from the women about themselves and their friends. The changed identity of the man fundamentally changed the nature of the sexual act that took place. It was not something the women consented to.

      All of this is academic, of course, because the law does not exist in the UK. But I believe this case provides significant evidence as to why it should.

      I just wanted to point out in this comment that the law could only apply in very restricted circumstances. It would not mean, for example, that if a man told a woman he loved her to have sex with her, that he could be prosecuted for rape. That would not change the identity of the man in a way that fundamentally changed the nature of the sexual act to something the woman would not have consented to were she to know the true identity of the man.

      Of course, this is a deeply complicated issue. But the main point of the post is that whether you believe this was rape or not, it was a violation of human rights because the state should not be using cruel, inhuman or degrading tactics against peaceful protesters (or anyone for that matter).

      • PJ

        Thanks for your response.

        I agree that this type of behaviour by the police is completely unacceptable, but I’m still not convinced that applying such a law justly would necessarily be so easy. The example you cite is indeed clear cut but it is also absolutely unique – I’m not sure the case of these policemen is so incontrovertible. That these men were “using sex to procure information” is by no means certain – one of them went on to confess to his partner and I believe a marriage was the outcome. Sex is an end in itself and it would be very difficult to argue that one party’s motivation was so purely cynical.

        Also, this idea of the “changed identity of the man fundamentally changed the nature of the sexual act” is highly subjective. The other example you gave – the idea that a sexual partner might lie about being in love – would, I’m sure, be shocking to many people and could also be considered a breach of trust so great that the act itself was something that the partner did not consent to.

  6. Robert

    Should have been around in the miners strike no kettling then, one full mad attack with pickaxe handles i lost four front teeth and a few broken bones. Good old days.

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  8. Interesting and thoughtful post – a shame the documentary makers last night didn’t put any of this to Kennedy’s face, or to the police.

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