Sunday, 9 August 2009

Rape laws punishing the innocent, and failing to tackle the guilty

On my way to Chester two days ago, I gave up on trying to listen to my iPod above the racket of the train wheels, and picked up a free copy of The Metro from the seat opposite. The front-page story was entitled "Child rape" teen is saved by Bebo.

It's a story about a 15-year-old by who had sex with an 11-year-old girl whom he thought was the same age as himself. He was charged with rape, although the girl had in fact agreed to sex (if you can really say that an 11-year-old has the capacity to agree to sex, which is a moot point). He was spared a jail sentence; the court accepted his story after learning that the girl had posted explicit photos of herself on Bebo. He still has a criminal record for underage sex, though, and has to sign the sex offenders' register for two years.

It got me thinking about the complete mess Labour has made of our rape law. The Sexual Offences Act 2003 was promoted as a vital modernisation of our outdated laws; an important way of protecting vulnerable women and children. In fact, it’s created more problems than it's solved.

Usually, to convict someone of rape, you need to prove that the victim didn't consent, and the defendant knew that (or, if he made a mistake about consent, you have to prove it was an unreasonable mistake).

However, the 2003 Act introduces a new offence: rape of a child under 13. To be convicted under this section, all you need to do is have sex with an under-13-year-old. Even if she consented, and even if she lied about her age, it's still rape. The logic behind this was that no 12-year-old could possibly consent to sex. It would be unfair and harrowing for child victims to have to go on the witness stand and be grilled by a barrister about whether they’d agreed to it or not.

That's entirely correct in the case of a 12-year-old girl forced to have sex by an older paedophile. But what if she's having sex consensually with her 13-year-old boyfriend? The boyfriend is technically guilty of rape, and he can get a conviction which will go on record and destroy his life. Which, for an Act supposed to protect children, is pretty perverse. (This has actually happened, by the way.)

Not that I'm for a minute suggesting it's a good idea for 12 and 13-year-olds to have sex. But if they do, should they really be dragged through the courts? Surely this is a matter for the family, the community, the school? We do need to deal with children who have sex far too young. But giving them a lifetime record for the second most serious crime is wildly out of proportion, and it completely defeats the object of child protection!

The 15-year-old in the Metro is lucky to have got away with a lesser conviction for straightforward underage sex, rather than rape (which he was technically guilty of, regardless of the Bebo photos). But I was struck by what the judge said to him when releasing him on probation: "I hope you realise this conduct has got you into serious trouble indeed. The maximum penalty for this is ten years' imprisonment."

A boy in his mid teens, having sex with a girl whom he thought was in her mid teens too? Carrying a ten-year jail sentence? My God, half my mates would still be in prison today …

The fundamental problem with our rape law (and the criminal law in many other areas) is that Labour seems to believe you can solve most things if you introduce tough enough laws. It's a case of a lazy government, going for the soft option of shuffling paper around to "make a statement", rather than taking practical action to solve problems.

It's a sad fact, but you'll never get as high a conviction rate for rape as for other crimes. It usually takes place in private, between people who know each other, with no independent witnesses and inconclusive forensics. But we could improve convictions drastically by, say, having 24/7 rapid response cars visiting rape victims, collecting vital forensic evidence as soon as they get the phonecall. Instead, we just re-write the definition of rape, to make it tougher for alleged rapists to defend themselves in court, and in the process, we not only create unfair loopholes that ruin the lives of innocent people; we also miss the chance to do something constructive to protect vulnerable people against the most horrendous crime short of murder.

Aside from lazy governmental thinking, the main culprit is the lobby-group mentality in UK politics. There's a loud and organised women's rights lobby (typefied by Harriet Harman), clamouring for higher rape conviction rates at whatever the cost. There's no equivalent lobby group to represent men charged with rape and demanding a fair trial - and if there was, it wouldn't get very far. Add this to a so-called children's rights lobby that thinks it's acceptable to drag inappropriately-young lovers through the Crown Court, and you have a recipe for injustice.

In other news - I'm moving to London this week, ahead of my final year of legal studies. I don't suppose anyone in the political blogosphere has any advice on how to survive in the big city? ;-)


Frank H Little said...

How to survive in the Great Wen: get a part-time job as a Commons researcher? ;-)

Steven Allan said...

"That's entirely correct in the case of a 12-year-old girl forced to have sex by an older paedophile."

Is that to say that if she were forced to have sex with someone either
younger or not a paedophile, that would be okay, Jonny ? It's being forced to have sex that is the crime. It has nothing to do with whether or not the person is a paedophile. Nor has it anything to do with age. Being forced to have sex is rape.

"But what if she's having sex consensually with her 13-year-old boyfriend? The boyfriend is technically guilty of rape, and he can get a conviction."

Absolutely. The law is an ass, because the people who make the law are asses. It is the legal age of consent that is the problem; it stands in the way of common sense. The very fact that it is different in different countries bears that out. People can go to prison in this country for a so-called rape which isn't even a crime in, say, The Netherlands or Denmark. If only we could get rid of the age of consent. As for rape, the legal definition should be the same as the dictionary definition.

Two basic laws are surely necessary :

1. It should be illegal to have sex with anyone underneath the age of puberty.

2. It should be illegal to force someone to have sex with you.

These then need emroidering tremendously, of course. How they are embroidered would doubtless be a hot topic for debate but at least I have got the fundamentals sorted out first. Parliamentarians rarely do that.

As far as the age at which any crime is committed is concerned, I wonder why it is that we have to view sex in a different light from other crimes. A policewoman whom I spoke to recently told me that about half the calls the police get on a Friday night are in respect of children ( age range approx. 11 - 14 ), causing mayhem, terrifying people, committing crimes etc. and she said that it was so frustrating, because at their ages, there is little that the police can do but take them home to mum and dad.

How come it's all so different, then, if they have had sex ? They can be dragged though austere courtrooms as though they were hardened criminals for doing virtually nothing. To some extent, I believe we are still living in Victorian times.

Merseymike said...

I agree with much of this. But, whilst I agree that rape convictions are inevitably going to be lower than others, does this really account for the significant fall in both convictions and the number of cases reported where someone is brought to trial?

There is a problem here whatever way one looks at it.

JD said...

what can my son do if his girlfirends mom or dad try to get my son.he is 17 she is 14 almost 15 him almost 18. they say they love each other ! Not happy but he is good to her and she says she loves him and he says same. My concern is they say their not having sex but I don't know. Can her parents just come out and say he is having sex with her with no proof and he gets put in jail,they know his age and are fine now but what happens if she gets made at him or parents try to get him in trouble.Can They with no proof? If so, not fair at all .They should both go , she is not that young and only 3 yrs apart ,most of them are in relationships yrs apart in high school. We all did back then at this age.Please some defense for him it's not rape were talking about. (consentual)I have 3 boys!