Walk on thin ice

[venta]

Yesterday, at the jobcentre, I had all my journalistic stereotypes confirmed.

First waiting area: Oxford Mail, tabloid, all pictures and giant text on the front page. Pages 1-n dedicated to the distressingly lenient sentence handed out to a Blackbird Leys man who raped a ten year old girl.
Second waiting area: Oxford Times, broadsheet, dense text on front page. Page 1 dedicated to the interaction of Seera, the local government, and various cabinet members over the problems of new-build housing in Oxfordshire.

I read the story about the rapist and thought that yes, 18 months for raping a child is pretty short. And the judge's comments that she dressed provocatively and "older than her age" were shockingly out of order.

Having checked up on the letter of the law (Sexual Offences Act 2003) any sexual intercourse with an under-13 is rape. Further hunting about in news stories online revealed that yes, the sex had been "consensual" and it was the above Act that made it rape. Further, the doctors who'd examined the girl thought she was in her mid-teens.

So, there are two stories here:
Man attacks and rapes child in park, child blamed for dressing provocatively.
Man has what he believes to be consensual sex with someone he believes to be of consenting age, but turns out to be wrong.

Both of these describe criminal offences. But it my mind they are rather different crimes, even though the offence with which the man will be charged is the same. So hey, tabloid reports sensationalist version of story, no surprises there.

News reports come complete with a series of outraged statements from local MPs, children's charity spokesmen, local mothers and critics of the judicial system, all along the lines of "there's no excuse for raping a ten year old, however she dresses". Which is, of course, the sort of statement it's impossible to disagree with. There is no excuse for raping a ten year old (or anyone of any other age).

What I have begun to wonder is whether it is impossible to avoid the sensationalism. I can't think of anyone who, if asked by a newspaper for comment, would be willing to say anything other than how dreadful it is. Even writing this I've been wondering whether it'll trigger a stream of comments from people who think that I'm excusing child rape.

In general, what a rape victim is wearing when attacked should be completely immaterial. However when an important issue is the perceived age of the victim, then dressing "older than her age" is actually relevant. It isn't simply a bigoted judge blaming the victim. It doesn't prevent a crime from having been committed; it might (and I presume it did) affect the sentencing.

I do wonder how the story would have been received by the media had it been accompanied by a photo of the girl. I'm genuinely curious to know whether a claim to have mistaken her for 16 is actually reasonable, whether people might have been more sympathetic towards the defendant. I appreciate that this can't be done without compromising the victim's rights, which take precedence.

I'll wait with interest to see whether the Attorney General does indeed conclude that the sentence was "unduly lenient" - and how many people will call for his resignation if he does not.

On a separate note, I was also somewhat baffled by comments from the BBC's report: "Judge Hall said in sentencing he faced a moral dilemma as the fact they had sex within 45 minutes of meeting was an absolute crime."

You what?

Surely, in such a case, either the girl is underage and it's a crime regardless of how long ago they met, or the girl is of age and it's their own damn business how long ago they met. Shagging people you met three quarters of an hour ago in a park may well be inadvisable, but I don't see how it can possibly be criminal. Does anyone actually understand what the judge might have meant there?

Comments

[valkyriekaren.livejournal.com]

I'm not sure how convincingly a ten-year-old can look over 16, no matter how they're dressed.

There's something called 'the young man's mistake' which comes into play in statutory rape cases when it's the man's first offence, he's not significantly older then the girl, and he believes the girl to be older than she is (either because he's been told so, or she looks older than her age and has neglected to tell him otherwise). In these sorts of cases the man usually gets no more than a slap on the wrist.

However, this doesn't apply if the child is under 13. It may be that this law is outdated - girls are reaching puberty earlier and could look sexually mature at that age.

The problem is, because she's below the age of consent it is classified as rape. Rape is sex without consent; statutory rape is sex where meaningful consent could not have been given. Maybe we need another word for it?

[venta.livejournal.com]

Rape is sex without consent; statutory rape is sex where meaningful consent could not have been given. Maybe we need another word for it?

Does the phrase "statutory rape" apply in this country ? I thought it was a US-ism.

I agree with your point, though.

[taimatsu]

Usage on this page at BBC NEws suggests it is a correct term here too.

[chrisvenus]

Maybe we need another word for it?

I'm not sure what the term is for the crime of having consensual sex with a 15 year old - probably something like sex with a minor but that might be an americanism - but I'm not sure why the same term couldn't be applied. Sentencing could be different but I'd say it was nearer to that crime than rape.

I mean even "sex without legal consent" would be better since that gives the idea that there are other kinds of consent that may well have been given.

I dunno though. I just think its a damn shame that 10 year olds are willing and possibly eager to have sex with men twice their age.

[venta.livejournal.com]

I think it's Secual activity with a child (http://www.opsi.gov.uk/acts/acts2003/30042--b.htm#9), though 1(c)(i) seems to allow a little wiggle room in that you only have to reasonably believe that the child is over 16.

[condign.livejournal.com]

Chris:

"Rape" pretty much means "sex without legal consent" already. The term is already supposed to cover situations where sex is obtained without actual consent (i.e. by violence) or legal consent. (Not yet a lawyer in the U.S., by the way, and certainly not a UK lawyer, but there are other ways that a person may be disabled from giving legal consent besides minority.)

At least in the U.S., I can't think of a statutory rape case where actual consent (albeit legally invalid) wasn't part of the facts. In general, if a defendant has used violence or coercion, the "statutory" bit falls out, and he's charged with rape.

Now, it would be nice if tabloids made that clear. But somehow I doubt that were the names to be shifted around such that the name of the crime charged were clear (and according to venta, it already is) the red-tops would report it properly.

[chrisvenus]

I think if I was asked to comment in terms of "it was consensual, he thought she was older" then my comment would be what the hell kind of upbringing must this girl have had that she is in a park looking for sex at the age of 10? And indeed if she was happy to have sex at the age of 10 in that situation it seems clear to me it probably wasn't the first time (though I may be wrong) so how old was she when she started?

Its not about whether she was dressed provocatively but whether she was being provocative.

I feel sorry for the guy really in that case. Obviously (and I should disclaim here) if it was non-consensual then what he did was awful however I have seen girls look older than their age and although I don't think there would be many 10 year olds who can get away with it I am sure that you could find a 10 year old and a 16 year old and give them make up and clothes and the like to make the younger appear to be the older.

As for the judge's comment I think he probably didn't mean it in the context of breaking the law when he said it was an absolute crime, I suspect he meant it more in the "it shouldn't happen" kind of morallistic way. "its a crime" as a figure of speech rather than as a professional comment. THough if that is the case then somebody in that position really should choose their words better.

[venta.livejournal.com]

would be what the hell kind of upbringing must this girl have had that she is in a park looking for sex at the age of 10?

Parents absent, in care, if the Daily Mail is to be believed. So possibly not a great one.

[condign.livejournal.com]

Based on anecdote and experience, not evidence, but often I've found that if you look at the trial transcript or act observers, one finds that the judge was actually trying to reach the parents. Yes, rape (even statutory) is wrong whether the victim dresses provocatively or not. But allowing your 10 year old to wander around the park dressed for sex is not the wisest parenting tactic known to man. I'd imagine that the judge has concerns about seeing the girl in his courtroom again, new defendant in tow.

[marjory.livejournal.com]

Some children who have been sexually abused can tend to lend themselves to this kind of stuff, not having been brought up any differently... Perhaps she may even have been being pimped...Wonder if that aspect is being investigated, if the provocatively-dressed thing is anything more than a lawyer's gambit?

This latter part interests me, inasmuch as I can't imagine that any 10 year old could be dressed to look 'up for it' no matter what, hence I have severe doubts about any lawyer who would let hi/r client even voice this idea as part of mitigation of a sentence.

[al-fruitbat.livejournal.com]

If the 10 year old looks like a 15 year old, and wants to have sex, of course there's a clear defence for 'raping' her.

[bateleur.livejournal.com]

Except that the defence may not actually work very well if it happens to be the case that there's disagreement over how old she looks. I doubt any ten year old could fool a year 6 schoolteacher into thinking they were 16. So how stupid is the girl's sexual partner allowed to be before this defence loses its validity?

[stompyboots.livejournal.com]

I look back on this now (at 25) and cringe, but I was always very physically mature growing up.

Living in the States, I was buying fags for 16/17-year-olds when I was 12. I was clubbing and drinking much earlier than the law allowed, and when I met blokes in nightclubs I never disabused them of the notion that I was old enough to be in there.

In hindsight, there are a number of men who could have been done for statutory rape for having sex with me when I was the one lying about my age. The 25-year-old me sees it as morally reprehensible, but the 15-year-old me saw it as part and parcel of growing up - and something I was *lucky* to be able to do because of my appearance.

It's a very difficult case to judge, and awful for all involved.

[bateleur.livejournal.com]

Even writing this I've been wondering whether it'll trigger a stream of comments from people who think that I'm excusing child rape.

And, indeed, paediatrics in general! I'm horrified!

As far as the case goes, I tend to find my own views on the morality of such things don't match well with the law anyway. If the guy was 40, I don't care if he thought she looked 16 or not. If he was 16 himself, it's a completely different issue in my eyes.

[chrisvenus]

If he was 16 himself, it's a completely different issue in my eyes.

And in the eyes of the law by my reading... Sex with somebody under 13 is always illegal. Sex with somebody over 13 and under 16 is only illegal if you are over 18 so it give you that option of being in a reasonably close peer group but with a few years spread. I guess it is a little shonky in some ways since if you are 16 and start sleepiong with a 13 year old that is fine until you hit 18 at which point it become illegal for a year...

What is the rough age between that 16 and 40 year old where you think it becomes OK, out of interest? I know its not a hard and fast number but I'm wondering if it was near the 18 that I quoted (via venta's link above) or higher.

[secretrebel.livejournal.com]

I do wonder how the story would have been received by the media had it been accompanied by a photo of the girl.

There would be a vox pops interview on all the news channels with random members of the public and a phone line emblazoned across the front page of the Mail. "Looks 16 or not - you decide, text 'yes' to this number of you think she looks legal, text 'no' if you think she looks underage."

All in all, I'm glad they didn't publish a photo - nit just because of the obvious invasion of privacy it would denote.

[sea-of-flame.livejournal.com]

How look people look is a weird thing.

Here's an old photo of me (uh, obviously I'm not the 10 year old in the case ;) ....how old was I at the time?



(If people recognise the photo, and can therefore date it, they probably shouldn't answer this...since the point of the exercise is to guess apparent rather than known age!)

[condign.livejournal.com]

Shagging people you met three quarters of an hour ago in a park may well be inadvisable, but I don't see how it can possibly be criminal.

Well, if they're shagging in a park, it's probably some form of indecent exposure, so in a literal sense that might be the meaning. Kind of hard to tell without context.

If they're shagging someone they met 45 minutes ago, but not in a park, then the statement is probably more of rhetorical than legal effect.

[cardinalsin.livejournal.com]

We're talking about a 24-year-old who had sex with someone who he is presumably claiming he believed to be 16, 45 minutes after meeting her, in a park. Putting aside the slightly sordid-sounding circumstances, assuming our man isn't claiming to have believed the girl was 24, he certainly knew she was *close to* being under-age. Under such circumstances, it is his responsibility to be sure of her age before having sex with her.

The reason we have a law that says it is unqualifiedly illegal to have sex with a minor is because it is so very easy to claim you didn't know their age, that they consented, etc etc. The onus is on the "rapist" to identify the age of the "victim" (in quotes to avoid implication that the sex was necessarily not "consensual"[*]).

It's difficult to have sympathy with someone who has sex with a minor, just over half their age, and then claims to be completely innocent. The press have sensationalised it, but certainly an appeal is justified in this case.

[*] in quotes to avoid implication that minors can give consent, which legally speaking they "can't". (I just put the last quotes in for fun)

[venta.livejournal.com]

It's difficult to have sympathy with someone who has sex with a minor, just over half their age, and then claims to be completely innocent.

In general, I'd agree with that. At the very best, the guy has been really quite stupid and opportunistic. However, I still don't think that's as "bad" as the term rape implies.

[maviscruet.livejournal.com]

Can I ask another question - what if the girl approached him for sex? Better or worse?

It's an odd one. I mean we say that a child can not give legal consent - but a 15 year old boy or girl can consent to sex and know what it means..... The age boundry is arbitary. Sure it has to be there but we need to know it for what it is.....

[onebyone.livejournal.com]

what if the girl approached him for sex? Better or worse?

See Lolita, which probably would have been widely mentioned by the press had the bloke gone down for life and they'd decided to take his side.

I'd say that it would be marginally less bad to allow yourself to be seduced by a 10-year-old, than it is to actively encourage a 10-year-old into what she might think is consensual sex, but in actual fact legally cannot be.

I think that if someone goes cottaging for young girls (does it count as cottaging if it's straight?), then they are knowingly taking a risk of thereby committing some kind of offence. The more drunk the offender, the higher the risk. So if they do commit the actus reus for an offence, whether it be statutory rape or anything else, then they must at least confess recklessness, regardless of the precise sequence of events by which the offence came about. The law should be applied appropriately in view of that recklessness.

By analogy, suppose that someone drinks two pints of beer, thinking it to be weak, then drives home. The beer turns out to have been strong, they are over the limit, and are done for it. Fair cop. I don't care how weak they thought the beer was, they knowingly drove while somewhat drunk, and actually drove over the limit. Even if the beer was mislabeled, they're guilty, and it's up to sentencing guidelines and the judge whether to accept mitigation.

[onebyone.livejournal.com]

Further, the doctors who'd examined the girl thought she was in her mid-teens.

It's not clear from the BBC article whether the court found that as fact. The article says that the defence claimed it, but that doesn't necessarily mean it's true, and the article doesn't mention whether said doctors testified to that effect.

[venta.livejournal.com]

<re-reads report>

Yup, fair point. I hadn't registered that one.

[cardinalsin.livejournal.com]

Also, even taken at face value "mid-teens" might or might not mean "over the age of consent".