Following the allegations of inappropriate sexual behaviour against the Liberal Democrats’ former chief executive Lord Rennard, some dangerous advice has been going the rounds. Basically women are told: if your chief executive touches you and you don’t like it – just slap him. Or throw drink in his face. Or give him a Chinese burn. This is the advice from Sarah Vine, Daily Mail columnist – and it is wrong. Slapping a chief executive is both a criminal and a sacking offence.
Now we must be careful. Lord Rennard has insisted no inappropriate conduct has taken place on his part. So for illustrative purposes we are going to assume that at some time, somewhere some chief executive or another has inappropriately touched a woman’s knee, rubbed another woman’s leg or put his hands down another couple of women’s backs “and places where they had absolutely no business being”. We shall call our fictional chief executive “the Old Goat”.
The idea of slapping such a man seems to be based on a fanciful 1950s notion of morality. Our male lead (rather handsome with jutting jaw – so different from our own oleaginous, balding fifty-something fictional chief executive) gets a little fresh with our rather prim heroine. She delivers the slap; it knocks sense into him; he admires her feisty qualities; lust turns to love. There are flowers, a dinner date, a proposal of marriage.
None of those outcomes in reality is likely to occur – nor are they likely to be desired by the victim of our Old Goat’s attentions. The danger of resorting to violence is that it prompts only violence, and Sarah Vine is asking women who have been wronged in this way (touching people without consent and a sexual motive is a sexual assault: see Section 3 of the Sexual Offences Act 2003) to expose themselves to increased violence.
But say the Old Goat keeps his head and decides to pursue legal action instead. One might assume that the woman involved could claim the slap (or the kick – Vine adds kicking to her offensive armoury against Old Goats) was self-defence. It’s not so cut and dried. In fact she could well be charged with common assault (technically a “battery) – or even assault occasioning actual bodily harm if she successfully administered a Chinese burn or bruises his leg with the kick. This is a more serious charge under Section 47 of the Offences Against the Person Act 1861 involving “any hurt or injury calculated to interfere with the health or comfort of the victim”. R v Donovan  2KB 498. This might be “bruisings, grazes, the causing of tenderness” (R v Reigate Justices ex parte Counsell  148 JP 193) – which any really good Chinese burn would cause – and a really good slap might also.
‘For this purpose, we think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling’ – Swift J in R v Donovan
On the positive side she would not necessarily have to prove that her self-defence response was objectively reasonable in the circumstances. The reasonableness of self-defence depends on the victim’s perception of the threat to herself. The Old Goat (and many of the commentators) tend to downplay the significance of a hand on the knee etc. But if the victim honestly fears that is the start of a more serious molestation she is entitled to resort to any necessary violent action that will protect her. Never mind slaps, perhaps heavy vases or lamps or maybe the champagne bottle he might have been seeking to impress her with – all would be reasonable defensive weapons if she truly anticipated a serious attack.
That’s assuming her perception hasn’t been warped by the voluntary consumption of alcohol. If it’s the booze talking (perhaps the champagne bottle is empty by now) then she’s in trouble. An objective standard will be applied: was her response actually reasonable given the circumstances?
A further problem for the Old Goat’s victim is that the violent response must be self-defence, not some attempt to punish the groper, not simply revenge, nor even something that will make him see sense. A court might ask, therefore, what the purpose of the slap (or Chinese burn or kick) actually was. If it was the sort of action that could prevent a further attack by the Old Goat, then it’s self-defence. If it was simply outrage and an opportunity to give him something to think about, then it’s not. The victim becomes the villain: she has committed common assault or ABH.
Incidentally, the glass of wine in the face is just as much a battery as an actual blow. In R v Savage  1 AC 699 it was established that throwing beer in someone’s face was an unlawful act. She’d also be on the hook for criminal damage if there was a cost to the Old Goat in dry-cleaning his suit.
If the Old Goat prefers to have his victim sacked for her attack on him, her position before a workplace disciplinary hearing may be even worse. At least in court the offence against her has to be proved beyond reasonable doubt. In an employment situation she has only the right to a reasonable procedure giving her a right to defend herself – but the disciplinary panel has no particular standard of proof to adhere to. If it decides that the slap/kick/Chinese burn is an overreaction to a very minor incursion into her private space – or that the incursion never happened – then it can find against her. She might be disciplined or even sacked (since violence in the workplace is a serious matter – and the more senior the victim, the more seriously a company might consider it, one assumes) and be left outside the building trying to vindicate herself via an industrial tribunal.
So in any attempt to leave justice to a physical response, one side is going to come off worse – in all likelihood the least powerful one. That’s why we did away with trial by combat because the least powerful one is not necessarily the wrong one. And power, of course, is not always just physical. Men are, on average, more powerful in both senses of the word than women. The reality is that a woman who slaps her boss would find herself persona non-grata, her career in shreds and high on a list when redundancies next come round.
The cod-feminism of people like Sarah Vine or Paddy Ashdown, who claim that we are all equal now and so women must “toughen up” for this more equal world, is in the real, unequal world, a nonsense.
Blaming the victim in such cases for lack of robustness suggests an attempt to keep women subservient despite (because of?) their career aspirations and notional equality – to keep the world safe for men and for their flailing middle-aged fantasies.
Note: A detailed analysis of Rennard’s legal position and why the Lib Dems could have and should have put him through a disciplinary procedure is in the previous post here
For a look at the law on self-defence see Ken Clarke says stab a burglar. Is he right?
For a discussion of the confusing definition of common assault see: Saatchi and Nigella: Exactly what offence has been admitted?