Complicity and Rape
| DOI | 10.1177/0022018318819149 |
| Date | 01 February 2019 |
| Published date | 01 February 2019 |
| Author | Christopher Cowley |
| Subject Matter | Comment |
Comment
Complicity and Rape
Christopher Cowley
University College Dublin, Ireland
Abstract
The case of R v Clarkson (1971) concerns the complicity of three non-participating observers to
a vicious gang rape. The observers were charged with ‘encouraging’ the rape, but this was
rejected by the Court of Appeal on the ground that two of them had been ‘mere’ observers,
and there was no evidence that they had encouraged the perpetrators by word or gesture. This
case is regularly cited to this day, without critical comment, as a limit on complicity under
English common law. In this article, I want to challenge the Court of Appeal’s judgment and
argue that the two observers should have been found complicit. My argument is based on the
special nature of rape, and the capacity for a male observer to compound the female victim’s
humiliation by their mere presence. My argument is even more justified in the case of Clarkson,
I argue, because it took place on a British army base abroad.
Keywords
Complicity, abetting, encouragement, rape, bystander
The case of RvClarkson(1971)
1
concerns a vicious gang rape by four soldiers (henceforth the
‘principals’ or the ‘rapists’) at a British army base in Germany. The victim was an 18-year-old German
civilian who lived near the base. During the rape, three other soldiers, one of whom was Clarkson
(henceforth the ‘observers’), happened to be passing, heard the commotion and came into the room out
of curiosity. They stayed and watched the rapes. Later the four principals were all apprehended, charged
with rape and duly sentenced by a court martial. Although ‘there was no evidence of direct physical
participation or verbal encouragement by the defendants’,
2
the three observers were charged with
‘counselling’, that is, complicity in the rapes. Their continuing, non-accidental
3
and uncoerced presence
not only encouraged the perpetrators and discouraged the victim but allowed the jury to infer their
endorsement of the offence. Therefore, they were to be ‘punished as a principal offender’, in accordance
Corresponding author:
Christopher Cowley, School of Philosophy, University College Dublin, Dublin 4, Ireland.
E-mail: christopher.cowley@ucd.ie
1. R v Clarkson (David) [1971] 55 Cr. App. Rep. 445.
2. Ibid at 1402.
3. Their initial presence was accidental, but their continuing presence was not. In addition, they felt no impulse to defend the
victim or report the incident to their superiors.
The Journal of Criminal Law
2019, Vol. 83(1) 30–38
ªThe Author(s) 2018
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DOI: 10.1177/0022018318819149
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