In Scots law, pretending to be someone else or lying about your identity to get sex is rape. Which means that undercover police having relationships and families with the activists they were spying on was rape. (It may also constitute lying about the purpose of the sex act, which is also rape under Scots law, though this point may be harder to argue.)
In the US, undercover police posing as clients have sex with sex workers then immediately arrest them for prostitution (which sadly is a crime in most states). Sex worker activists say this is rape. It is rape. The police don’t pay for the services. And they’re lying about their identity. And if this is rape, then UK police officers having sex with activists was rape.
But what makes the UK police even more reprehensible than the US police is the fact that they had long term relationships and even children with their victims-meaning that the psychological damage to the victims and children when they discovered that their “missing”, long searched for partners and fathers had never existed was far greater.
Using sex to get information is of course nothing new. It was done in WW2 by British intelligence. They sent women to sleep with German soldiers and listen to their pillow talk (if I remember correctly what I read in a book about spies aged 14…yes I was an ubergeek and yes I really should’ve studied international relations at uni). But these were just one night stands and so far less unethical and emotionally damaging than 2-6 year long relationships. There would’ve been much less lying about identity involved as the duration of contact was so short, and therefore the pretence might not be enough to constitute pretending to be someone else or lying about their identity under Scots Law*. The pretence basically involved nothing more than a fake name (if that) and not mentioning being a British operative. I don’t think this should be classed as rape, otherwise lying about your name or job on a one night stand would make us all rapists. We should have the right to maintain our privacy and sometimes we may have good reasons for withholding our names and occupations. But by contrast, police spies pretended for years to share activists’ political beliefs and ambitions. They cultivated fake personas and fictional pasts, even accompanying their “girlfriends” on holidays and family outings.
I’m not saying police forces definitely ordered their officers to have sex with the activists, or that the officers necessarily meant to use sex to get access or information-perhaps it was personal attraction. But it was still rape. If it was casual sex used against terrorists I personally wouldn’t have a single problem with it. Why? Because we use sex for ulterior and covert motives pretty frequently. Sleeping with your boss to get a promotion. Using sex to lure someone into a more serious relationship. To get favours. To get someone on your side. Teens might use it to boost their popularity. Even using sex to get access or information might occassionally have its uses in civilian life. We don’t think of any of this as rape. Even pretending to like someone to get sex isn’t seen as rape and I don’t think it should be. So if civilians aren’t committing rape by using casual sex for ulterior motives, why can’t the state use it against terrorists or foreign agents (who, unlike civilians, have likely been warned against such tactics and have actually signed up for a life of being screwed with by the state/other states). Of course, police should avoid even using casual sex on civilians. But using long-term relationships means tricking someone into having sex with you and into loving you- or, rather, into loving a nonexistent person. It means having children who love a nonexistent parent (at least until deployment ends and they disappear).
Of course, rape wasn’t the only crime being committed here. The undercover operations may have resulted in wrongful convictions and Scotland Yard spied on Stephen Lawrence’s family. As the public investigation progresses, we’ll learn more.
The big question is whether Mark Kennedy and the other police officers were told to have relationships with the activists-meaning it is UK police policy to commit rape-or whether these undercover officers acted of their own accord, which would mean it was just their personal misconduct. The media tends to assume that the police formed relationships to get information but as yet it’s unclear if this is true. The officers might simply have been attracted to the activists or wanted to keep them emotionally dependent on them for personal gratification instead of policing-related reasons.
*The law in question came into effect in 2009 so even if it did constitute rape under current law, it wouldn’t have been legally recognised as rape at the time. And it would’ve fallen under the jurisdiction of French, German and possibly English law.