Why did the Cypriot police prosecute the British woman who complained she had not consented to having video-recorded sex instead of those who videoed her?
And it came to pass that Jesus was teaching and preaching near the Mount of Olives and went down to the Temple in Jerusalem where some Pharisees brought a young woman to him and accused her of fornication. “This woman was caught in the act of adultery and our laws command she should be stoned to death. What do you say?” they asked Jesus in order to entrap him into saying something contrary to Mosaic law.
What Jesus said in reply has become one of the corner stones of modern values now enshrined in human rights law: “whichever one of you is without sin let him throw a stone at her first.” To their credit they all left, as their conscience would not let them lift a stone; and when they had all gone Jesus told her that as there was no one left to condemn her, he did not condemn her either, and that she was free to go and not do it again.
The wisdom compressed in that one remark is amazing. Society has to be fair, and not too judgmental, and respect the private life of the individual including people’s freedom to fornicate undisturbed and unobserved by others.
The right to respect for private life is wider than the right to privacy and is one of the most useful tools in the armoury of the individual. It guarantees a person’s autonomy, physical integrity, identity and personal development, including the freedom to establish and develop relationships with other people. This is not an exhaustive list; the idea behind the right, however, is the freedom to be an individual person in society without interference either from the state or other people.
The state has to justify any interference and have laws in place to prevent prying by the state or by individuals in the lives of others.
The extent to which the criminal law can be used to interfere with people’s choice to engage in activities that are perceived to be morally, physically or psychologically harmful has preoccupied the courts in a number of cases, like for example cases of assisted dying. Basically the position is that state interference even in such cases impinges on private life and requires justification in terms of the so called margin of appreciation.
To protect private life is not easy and human rights law recognises that it needs states to do this. For this reason the law affords the organs of the state a wide margin of appreciation in the interests of national security, public order, public health and the rights of others. But once the right to private life is engaged in the sense that a violation may have occurred, the state has to show that its actions have a legitimate aim and that they are necessary and proportionate and that it has struck a fair balance between competing public interests.
The right to sexual privacy is one of the most obvious aspects to the right to privacy. For reasons that require the return to life of Sigmund Freud, having sex is regarded by people as a very private activity, and most of us would be appalled at the thought of being video or audio recorded whilst engaged in the deed of darkness.
So why did the Cypriot police prosecute the British woman who complained she had not consented to having video-recorded sex instead of those who videoed her? A Cypriot policeman suggested to an Israeli journalist in a documentary last week that it was a criminal offence in Cyprus to post private sex video clips on social media, adding that the Israeli boys could be extradited back to Cyprus: “better late than never” he said a little unconvincingly. It most certainly did not convince the feisty feminist journalist from Israel who seemed wholly unpersuaded – Israel does not extradite its nationals who are resident there.
Instead of the exipnovlakia – clever stupid remark – “better late than never” he could have told the truth, which was that the complainant’s claim she had not consented to sex involved balancing her rights against the rights of the boys not to be arrested and detained except on reasonable suspicion of rape. The evidence suggests the police were so relieved the video showed consensual sex, it did not occur to them that videoing the young woman having sex and distributing it on social media was not only a criminal offence but one that might in the eyes of the victim have vitiated consent.
Just a few loose ends on the judge’s findings of fact on this last point. The judge had found as a fact that she complained that she had been raped after she discovered her private sexual acts were recorded on video without her consent. Whether it was rape in accordance with the legal definition of rape was irrelevant since she was charged with lying; a lie is a statement of fact that the person making it does not believe to be true. Rape is not a statement of fact but an assertion by a complainant that she has had sex without her consent. So in order to be guilty of lying the court had to be sure she did not genuinely believe that she could withdraw consent after she discovered she had been videoed having sex and still complain she had been raped.
Under English common law, which applies in Cyprus, if there is evidence of a defence not put forward by the accused in a criminal trial, the judge has a duty to direct himself to consider such evidence as an alternative defence even though it has not been relied on by the accused. This is because in criminal cases a particular defence does not lend itself to alternatives: you cannot claim you did not kill someone because you were not there but that if it is held that you did, it was an accident. But sometimes the evidence as it unfolds is inconsistent with the guilt of the accused even though it is not consistent with the accused’s defence either.
This may have occurred in this controversial case. Given the judge’s finding that she had complained she had been raped after she discovered she had been videoed, he was obliged to consider whether this constituted an alternative defence. For if she genuinely believed that owing to the fact that she had not given consent to video-recorded sex, on her subjective understanding of the facts, she had been raped, she could not be guilty of lying to police. In other words, her use of the word raped was a colloquialism because so far as she was concerned, she had not consented to sex that was videoed and posted on the internet. The fact that this may not be rape in law does not make it a lie if she genuinely believed it was sex without consent.
Food for thought.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge