Disclaimer: this article deals with accounts of sexual assault and related topics. Reader discretion is advised.
The horrifying acts of Jeffrey Epstein against women as young as 14 are currently hot on the lips of many, with Twitter teeming with conspiracy theories of public figures' links to Epstein, and Netflix providing a damning account of the ongoing saga in their recent docuseries Jeffrey Epstein: Filthy Rich. As the story has unravelled and more connections have been found between Epstein and widely-known individuals, it has emerged that Prince Andrew, Duke of York, is too tangled in this affair, with reports of him carrying out sexual acts against minors, introduced to him through Epstein. Now, with Newsweek reporting that the majority of British citizens believe Prince Andrew should be stripped of titles and extradited to the US, is it possible that someone from a background so privileged and prestigious can be forced to face up to such consequences?
The Background
Although Epstein's acts are believed to have taken place from 2002 to 2005, Andrew was allegedly introduced to Jeffrey Epstein much earlier, in the 1990s, through Epstein's ex-partner, Ghislaine Maxwell. Virginia Roberts Giuffre, a figurehead of the legal proceedings against Epstein, claimed that she was paid $15,000 by Epstein and encouraged by Maxwell to have sex with the Duke in London when she was just 17 years old, and did so on two further occasions, with flight logs and photographs consolidating Giuffre's version of events. There are reports too of Prince Andrew receiving massages from women at Epstein's residences, a common feature of Epstein's relations with young women which often lead to sexual assault, molestation and rape.
Despite coming under investigation in 2005 after accounts from five alleged victims, Epstein avoided serious punishment until 6th July 2019, when he was charged with sex trafficking and sex trafficking conspiracy and placed in the Metropolitan Correctional Centre in New York City. Previously, Epstein had received very weak punishments relating to any charges against him, such as a jail sentence that included 12-hour "work release", six days per week, in which he worked in the office of a foundation he himself had founded before being placed in jail. Whilst on probation, Epstein was allowed trips to his residences in Manhattan and Little Saint James, his private island in the US Virgin Islands, two of the key locations where many of Epstein's acts against young women are reported to have happened.
Whilst being detained in the Metropolitan Correctional Centre in New York, Epstein was placed on suicide watch and it was required that he should have a cellmate and be checked every 30 minutes. In August 2019, these procedures were both broken in a single night, and on 10th August Epstein was found dead in his cell. Although the circumstances relating to his death are dubious and under investigation by the Justice Department, it is currently believed to have been suicide.
Following Epstein's death, there has been increasing public demand for Prince Andrew to be held accountable and further investigated concerning his links to Epstein and crimes against young women. Consequently, in November 2019, Prince Andrew gave an interview for BBC Newsnight, dispelling many of the allegations against him. However, much of the evidence given by Prince Andrew proved contradictory; the date when Prince Andrew claimed to have met Maxwell and Epstein seemed to contradict other reports, and Prince Andrew's dismissal of an allegation that he was "profusely sweating" whilst dancing with the aforementioned Giuffre came on the basis that he was unable to sweat due to an "adrenaline overdose" suffered during the Falklands War, which some have called highly unlikely (per The Atlantic and National Post).
As a result of further public outcry in the wake of Prince Andrew's Newsnight interview, it was announced in 2020 that Prince Andrew would permanently resign from all public roles. Just earlier this month, in July 2020, Ghislaine Maxwell was arrested by the FBI in relation to her connections with Epstein, believed to have recruited and trafficked many underage girls to be assaulted.
The Questions
With the above brief summary of events in mind, there are a number of questions that may be looked at in relation to Prince Andrew. As mentioned previously, with many members of the public believing Prince Andrew ought to be extradited to the US to face trial, we must ask, is this even possible? In such unprecedented circumstances, it is unclear what impact Prince Andrew's membership of the Royal Family may have on the case. And, given there was a sufficient case against Prince Andrew and he was indeed tried before a US court, what crimes would he be tried for, and what punishment may he face?
The Law
Historically, the monarchy in England and Wales played a much greater role within our constitution in comparison to the powers it exercises today. Currently, the Royal Family has a number of residual powers that are instead exercised by Government Ministers, for example treaty-making, major public appointments and deployment of the armed forces; these are known as Prerogative Powers (per Blackburn article). With Ministers being the ones to exercise the powers, the monarch is bound to follow the advice of Ministers on all matters; this can be seen recently in the Queen's prorogation of Parliament on the advice of Boris Johnson last year, or as early as 1936, when King Edward VIII was forced to abdicate the throne at the advice of the Prime Minister in order to marry a divorcee. With this in mind, it might arguably be possible for a Minister to order the extradition or removal of titles from Prince Andrew, and this be exercised by the Queen. But, whilst this would surely be the case for any civilian, it must be considered how the law operates differently for members of the Royal Family.
When looking at the history of the Royal Family, it is clear that they have been involved in the law before on several occasions. In terms of civil proceedings, Prince Charles was involved in a key constitutional case, R (Evans) v Attorney General, relating to the 'black spider' memos between himself and government departments. There have also been a number of civil cases between the Royals and the press regarding privacy, such as the action against several magazines for publishing topless photos of the Duchess of Cambridge and Meghan Markle's action against the Mail on Sunday for publishing a letter from herself to her estranged father.
Despite the operation of the doctrine of Sovereign Immunity in the UK, whereby the monarch is immune from arrest in all cases, members of the Royal Family can and have been subject to criminal offences. In 2001, Princess Anne was fined £400 and given five penalty points for speeding and in 2002 was fined £500 and forced to pay £500 compensation after she was convicted under the Dangerous Dogs Act.
However, the above examples specifically relate to the UK; it is unclear whether Prince Andrew could be subject to criminal law in a foreign jurisdiction. If we look at the doctrine of diplomatic immunity, which recently hit the headlines when the wife of a US diplomat killed a motorcyclist whilst driving, we can see that diplomats as government officials can avoid criminal liability abroad. This somewhat links to an instance in the 1970s where Prince Andrew's brother, Prince Charles, was given immunity in the US from extradition and a civil lawsuit by arguing that he was a government official and a member of the Queen's household (per The Express). Although this seemingly sets the precedent in terms of royal extradition, the courts may distinguish this from Prince Andrew's case in order to have him tried in the US. For example, Charles' case was civil and only concerned one individual, a student who was asked to leave a conference with Charles after asking a controversial question and claimed deprivation of his freedom of speech. Conversely, Prince Andrew's case would be of criminal jurisdiction, relating to sexual acts with a minor, and may have more than one victim, giving it a much more grave context and placing it much further in the public interest with Prince Andrew being a public figure.
Whilst the above may indicate that the US may be successful in their extradition of Prince Andrew, the political landscape may too play a role in bringing him to trial. It is alleged that Donald Trump, President of the United States, was a friend of Epstein and, in 2016, a lawsuit was to be brought by a woman who alleged the two men had sexually assaulted her in 1994 when she was just 13 years old. The case was eventually dropped before trial after the woman had received threats that forced her to cancel a press conference, just days before the 2016 election. Whilst Trump's lawyers denied involvement, it would arguably be unfavourable to his presidential campaign to reignite discussion over Epstein by extraditing Prince Andrew so close to the 2020 election. It must also be noted that the judicial appointment system in the US is distinctly different to that in England and Wales. Our judges in England and Wales are selected by an independent body, the Judicial Appointments Committee (JAC), established under the Constitutional Reform Act 2005 to create a more impartial process and remove the influence that the Lord Chancellor once exercised over the selection process. In the US, the selection process is entirely contrasting, with the judiciary selected by the President and confirmed by the Senate (per The White House official website). This clearly gives the President the ability to exercise considerable influence in the judicial sphere, and could therefore perhaps play a role if Prince Andrew were brought to trial.
However, in spite of the case being under US jurisdiction, there is still opportunity for the courts in England and Wales to intervene. The BBC have reported that the US submitted a "mutual legal assistance" request to the Home Office in regards to Prince Andrew's case, one of the terms of this being that Prince Andrew may be brought before a domestic court for questioning if he does not respond. Whilst this would not be a criminal proceeding as such, it would allow for the extraction of evidence for the investigation against Prince Andrew (per GOV.UK) and potentially shift the case in a different direction.
Undoubtedly, it is clear that the British Royal Family have taken an increasingly back-seat role within our constitutional landscape over the previous centuries. However, regardless of whether the allegations against Prince Andrew are true or false, the message that still stands true is that the methods in which the Royal Family are held accountable are in need of change, something we may see in the weeks to come.
Great article Alice, interesting views on a very controversial matter