What would you do if your child was arrested for rape?

At Old Bailey Solicitors, we understand the particular anxieties and concerns of a parent whose child is facing a criminal allegation.  We are regularly instructed by parents who want to understand the process better, not least so that they can explain it to their child.  We are also increasingly instructed by parents who want a second opinion in respect of legal advice received by their child at the police station.

Consider this terrifying example, which is representative of a number of cases I have advised on in the last year.

What would you do if your 16 year old son was arrested for rape?  

He’s never broken the law, to your knowledge.  He’s never been in trouble at school.  He has spent the last year concentrating on his GCSE’s and considering his next steps – college, university, career options.  He had one short relationship with a girl in the school year below him.  It lasted a few months but he ended it just before his exams.  He’s a good lad, quiet, a bit introverted.  He’s not the aggressive type.

Sorry…he’s been arrested for what?!

It transpires that his former girlfriend has informed her friends, then her school – who in turn informed the police – that your son had sex with her, without her consent, shortly before they split up.  She was aged 15 at the time.

The police attend your address, early in the morning and explain why your son is being arrested.  They tell you that you can attend the police station later, to act as his “appropriate adult”.  They tell you that he will need to be interviewed in respect of the alleged offence.  In the meantime, he’ll need to wait in police custody until the interviewing officer is ready to proceed.  You don’t have a chance to discuss the situation with your son before he is led away.

Approximately six hours later, you are called to attend the police station.  You stand at the Custody Desk with your son while the Sergeant sets out his legal rights to him in your presence.  Your son is told that he can have a solicitor if he wants one.  You don’t know any criminal defence solicitors.  You’ve never needed one and you don’t know anyone who has.  You accept the offer of a Duty Solicitor.  The police will be ready to interview your son shortly and the solicitor will be called to attend.

You sit in a small room with your son, who is in a state of shock but just about holding it together.  As are you.  The solicitor introduces himself and explains what is going to happen.

He explains that the ex-girlfriend has alleged that your son had sex with her when she had previously said she didn’t want to.  She had been in a state of shock and hadn’t resisted but, she says, it would have been clear that she wasn’t consenting.  The girl has provided an initial account to police but has yet to be formally interviewed.

The solicitor asks your son to explain the history of their relationship.  He needs to know details of any sexual activity.  This is information largely unknown to you.  Your son is clearly embarrassed and finding it awkward to share the details of his first sexual experiences in front of his parent and this stranger.  He is asked to explain why he believed his then girlfriend had been consenting to sexual intercourse – What had been discussed? Who did what?  In what order?  What happened afterwards? What was said?  Were any messages sent before or after?

Having taken an account from your son, the solicitor advises him not to answer police questions.  He explains that, although your son had a belief in his girlfriend’s consent, the girl was under 16 at the time and so the solicitor advises that he would be admitting a separate offence (relating to underage sex) by answering questions.  Also, as the girl has yet to provide a formal statement, it might be unsafe to comment without knowing the details of her allegation.

During interview, the police ask your son about an exchange of text messages between him and his former girlfriend.  She appears to accuse him of doing things she had not consented to.  He appears to apologise.  This was three months ago.  The chat continues for a few weeks before they end their relationship.  Your son answers “no comment” as advised.

Your son is bailed for three months with conditions not to contact the girl or go to the area where she lives.  The police have seized your son’s phone.  The solicitor advises that the investigation is likely to last at least 6 months, more likely 12.  He will not get his phone back during that period.  Otherwise, he should get on with his life and not let this worry him too much.

Was your child advised correctly?

In the days after the arrest and police interview, you worry that your son might not have done the right thing by remaining silent.  Shouldn’t he have put forward an account relating to his belief in consent?  Your son tells you that he only sent the apology text because his girlfriend was upset with him and it seemed the best way to move forward.  He didn’t really know what he was apologising for.  He certainly didn’t believe that he had committed rape.  He had dealt with the situation as any 16 year old boy might.

How can you protect your son?  You talk of little else with your partner, although you try not to discuss it in front of your son too much.  You need him to focus on his studies, to see friends, to get on with his teenage life.  Weeks turn to months.  There is no news from the police.

Almost every week you see stories in the media about the terribly low conviction rate in rape and serious sexual assault cases.  On the one hand, this gives you some hope but the general thrust of the media reporting is that the police don’t take such cases seriously enough.  That certainly hasn’t been your experience so far.  The stories suggest that the CPS aren’t prosecuting enough cases and that the jury trial system is skewed in favour of the defendant.  You become concerned that the growing pressure of this media reporting will lead to your son being charged.

As a parent, what can you do to help?

You need to obtain specialist advice from a lawyer who deals with cases of this nature on a daily basis.  This might involve speaking again with the Duty Solicitor who assisted your son at the police station.  You might ask to speak with a more experienced lawyer within the same firm.  Alternatively, you might seek out another firm of solicitors altogether.  An internet search will offer up various options.  Without wanting to spread word of your son’s predicament too far and wide, you might seek the assistance of a close family member or friend who can refer you to a trusted solicitor.

You are looking to instruct a solicitor who is willing to meet with you and your son, who can take detailed instructions, assess the situation and provide informed advice about the best way forward.  You need to know whether the advice to remain silent at the police station is likely to assist your son or whether it might hinder his chances of successfully defending himself.

Should you wait for a decision or try to be proactive?

There is no single correct answer to this question.  Different circumstances will call for different approaches to be taken.  The pros and cons need to be carefully balanced.  As such, experience of the legal issues involved and the police decision-making process is key.

Sitting back and waiting for the police to complete their investigation might mean that valuable time, and potentially helpful evidence, is lost.  Are there witnesses who can comment on the situation between your son and his girlfriend?  If so, should they be spoken to straight away while memories are still fresh?  Should their details be provided to the police or should statements be taken by the defence team in the first instance?  Is there likely to be messaging between the parties which sheds a different light on the allegation?  If so, where is it?  Should the police be directed to search a particular social media platform and time period?  If the phone in police possession is relatively new and doesn’t contain the relevant messaging, should the old phone be offered up to them as potential evidence?  Or should it be examined by an expert instructed by the defence team first?

The answers to these questions will depend on the nature of the allegation, the strength and relevance of the potential evidence and the objective you are hoping to achieve.  For example, in some cases, it might be realistic to seek to persuade the police to drop the case entirely.  In others, that might be a remote possibility and so the focus becomes achieving an acquittal in court.  Providing potentially helpful evidence might help to see off the investigation at an early stage or it might provide the accuser an opportunity to explain it and reduce its impact.

Why parental involvement is fundamentally important

Your child, son or daughter, is likely to have little or no experience of the criminal justice system.  They might be deeply fearful of the process or they might simply take it in their stride, apparently unconcerned.  Either way, the consequences of a conviction, or any finding of guilt, on their future options can be profound.

Sentencing for Youths is designed to be light touch, with a significant reduction from adult guidelines and with a focus on rehabilitation over punishment.  However, there can still be repercussions for their study and / or career opportunities or their ability to travel or live abroad.  The nature and seriousness of the offence will obviously determine the extent of any such impact.

Every parent wants the best for their children.  This necessarily means keeping them safe from harm and holding open the best opportunities that life can offer.  A criminal conviction or Police Caution is not part of that plan.  Even having to cope with the stress of a police investigation or court process can be devastating enough for a young person and may impact them at a key stage of their development, regardless of the eventual outcome.  For all of these reasons, securing informed and proactive legal advice at an early stage in the process is imperative.  Your child is likely to require some support in that search.

How Old Bailey Solicitors can help

Subject to our professional duties of confidentiality, we will always seek to involve parents in the process of representing the child as we advise and guide them towards the most favourable outcome.  For us, as lawyers, it is often crucially important to have the involvement of well-informed parents who can assist with message delivery and to have all parties pulling in the same direction.  For the parents, they need to know that their child is receiving informed and balanced advice, that they are in safe hands and that their best interests and future options are considered paramount.

If you would like to arrange an appointment with one of our specialist team, please email us at [email protected] or call 0207 8464 999.