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 The Sexual Offences Act 2003 was promoted as a vital modernisation of our outdated laws; an important way of protecting vulnerable women and children.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? ;-)
Showing posts with label sex. Show all posts
Showing posts with label sex. Show all posts
Sunday, 9 August 2009
Sunday, 27 July 2008
George Carey on Max Mosley: "strip kinky people of their legal rights"
Former Archbishop of Canterbury, George Carey, has a particularly dreadful comment piece in today's News of the World. It's about Formula One boss Max Mosley and his recent victory in court against the same newspaper. I thought I'd go through it briefly with a few comments:
"A dangerous precedent has been set this week in the victory of Max Mosley over the press. The first major victim is Free Speech itself. Without public debate or democratic scrutiny the courts have created a wholly new privacy law. In itself that's bad enough."
As a student about to embark on a law course, I read through the judgement in full (homework, you understand, not voyeurism!) and it most certainly doesn't involve the judge creating new laws. It involves him enforcing Mosley's existing right to privacy, under Article 8 of the European Convention.
It's interesting that Carey capitalises Free Speech. Was that his idea, or News of the World's? Because this legal case has nothing to do with some great ideological battle in defence of free speech. It's about a tabloid prying into people's private lives in order to shift product. And if he'd bothered to read the judgement, he'd know that Mr Justice Eady spent most of his time looking at the clash between two equally important rights - Mosley's privacy and NOTW's freedom of expression - and came to a very reasonable and nuanced conclusion.
"But, as a Christian leader, I am deeply sad that public morality is the second victim of this legal judgement. Unspeakable and indecent behaviour, whether in public or in private, is no longer significant under this ruling."
As a Christian leader, who voted for you? Where does your mandate come from? And why on earth do you get to sit in our parliament passing laws that we all have to obey, whether we're Christian or not?
As for this argument about public morality - come off it. Are you saying that as a result of the Mosley case, people will start queueing up to have BDSM sex with each other in public?
This entire case is about privacy - a concept you don't seem to have grasped. It's about people having the right to create a little sphere for themselves where they can do what the heck they like. Whatever happens in that little sphere is supposed to be completely detached from the public. The only reason why Max Mosley's unconventional sexual tastes have had any public impact whatsoever is thanks to the trashy newspaper you're writing for and defending!
"And in our celebrity-obsessed age this is a hazardous route to take."
Presumably, as a Christian leader, you're not a fan of our celebrity-obsessed age. Why are you giving the tabloids carte blanche to stick cameras into celebrities' bedrooms, and splash the gory details all over the web? An ex-archbishop encouraging the press to make money by appealing to people's worst instincts! Shocking ...
"In the past a public figure has known that scandalous and immoral behaviour carries serious consequences for his or her public profile, reputation and job. Today it is possible to both have your cake AND to eat it.
But a case can be clearly made for a direct link between private behaviour and public conduct. If a politician, a judge, a bishop or any public figure cannot keep their promises to wife, husband, etc, how can they be trusted to honour pledges to their constituencies and people they serve?"
If you were talking about an elected politician here, you may have a point. If it were an MP who had sounded off about truth, honesty, integrity; who had lined up his wife and kids for publicity photos; who had voted conservatively on moral issues in the Commons; then you might have a point. But Mosley isn't elected and doesn't hold public office, nor does his job have anything whatsoever to do with public morality. He's in charge of organising a sport where jet-powered lumps of carbon fibre go round in circles at 200mph. I can't see what public interest is served by blowing open the lid on his private sex life.
In his judgement, Eady agrees that when he had prison-themed sexual roleplay with five dominatrices, Mosley had an expectation of privacy. NOTW argued that although they breached that privacy, it was justified by the public interest - because Mosley was engaged in dangerous and violent behaviour (which can be a criminal offence even if it's consensual).
The judge disagreed with them - in quite memorable terms, I think:
"As Woman D accepted, it was painful – 'but in a nice way'. Although no doubt interesting to the public, was this genuinely a matter of public interest? I rather doubt it."
(It's important to note that this judgement doesn't remotely affect the right of the press to claim a public interest defence in future privacy cases. It merely states that in this case, the public interest defence wasn't applicable, since Mosley's sex life wasn't a matter of any public concern. I can't see any ongoing threat to the freedom of reporting.)
George Carey continues:
"Max Mosley claimed that what consenting adults do with each other behind closed doors—however depraved, brutal and repugnant—is both private and harmless. I think that is deplorable. And I believe most people would ridicule his claim."
Again: come off it. Of course it's private and harmless. It happened behind closed doors, between adults, and in the long run, nobody was hurt - at least, if people were hurt, then it wasn't serious, it was with their full consent, and they were clearly enjoying it!
Carey is trying to apply a Christian view of morality here, where there is a divine arbiter - God - who gets to decide what's morally acceptable and what isn't. The problem is, Britain is made up of people of all beliefs and of no belief. Many of them will disagree with Carey's views on morality, and those people shouldn't have to live under a legal system based on one man's (or one religion's) take.
The only appropriate way to construct our legal system is to criminalise things that harm others, and permit things that don't harm others. Yes, it would create a morally relative society, where actions are good or bad based on their consequences, rather than on anything inherent. Yes, that might sound unpalatable to absolutists like Carey. But the truth is, it would give everyone the greatest possible freedom to decide for themselves what moral code to follow.
"This is a bleak, deeply-flawed 'anything goes' philosophy. It is also dangerous and socially undermining, devoid of the basic, decent moral standards that form the very fabric of our society."
In the whole of Carey's total car-crash of an article, this is the bit I have the biggest problem with. Surely the most basic, decent standard that underpins our society is a fair legal system which applies equally to everyone. But Carey is calling for judges to selectively refuse to enforce people's legal rights because they happen to be into kinky sex. Denying people justice because you disapprove of their private behaviour is, to me, far more depraved than a bit of harmless roleplay with a bunch of hookers.
Mr Justice Eady puts it far more eloquently than I could hope to manage:
"The new High Court ruling prevents press investigations into matters of clear public interest. It needlessly shackles the press and removes the right of the public to make informed moral judgements."
This strikes me as pretty rich. He's spent the whole article so far asking for a particular moral code - his own one - to be granted special recognition by the law, and forced upon everyone. And now he's pleading for the right of the public to make up their own minds about moral issues.
Partly, this is the desperation of a someone whose argument is slipping away from him as he writes it - but mainly, it's the confusion of someone who doesn't know what he stands for in the first place. Carey claims to have a deeply-rooted, firm moral viewpoint, but this article demonstrates that his views are all over the place. There's only one consistent thread running through this litany of self-contradictory arguments: the desire to use the law of the land to hammer people that he personally doesn't like. The rest is just desperate scrabbling around for any reasonably-sounding argument that might justify this bigoted selfishness.
"Judge Eady's ruling may have made legal history. But I, for one, fear the consequences."
I say again. Why, oh why, is this man in our parliament making our laws for us? Sometimes, I despair of Britain.
"A dangerous precedent has been set this week in the victory of Max Mosley over the press. The first major victim is Free Speech itself. Without public debate or democratic scrutiny the courts have created a wholly new privacy law. In itself that's bad enough."
As a student about to embark on a law course, I read through the judgement in full (homework, you understand, not voyeurism!) and it most certainly doesn't involve the judge creating new laws. It involves him enforcing Mosley's existing right to privacy, under Article 8 of the European Convention.
It's interesting that Carey capitalises Free Speech. Was that his idea, or News of the World's? Because this legal case has nothing to do with some great ideological battle in defence of free speech. It's about a tabloid prying into people's private lives in order to shift product. And if he'd bothered to read the judgement, he'd know that Mr Justice Eady spent most of his time looking at the clash between two equally important rights - Mosley's privacy and NOTW's freedom of expression - and came to a very reasonable and nuanced conclusion.
"But, as a Christian leader, I am deeply sad that public morality is the second victim of this legal judgement. Unspeakable and indecent behaviour, whether in public or in private, is no longer significant under this ruling."
As a Christian leader, who voted for you? Where does your mandate come from? And why on earth do you get to sit in our parliament passing laws that we all have to obey, whether we're Christian or not?
As for this argument about public morality - come off it. Are you saying that as a result of the Mosley case, people will start queueing up to have BDSM sex with each other in public?
This entire case is about privacy - a concept you don't seem to have grasped. It's about people having the right to create a little sphere for themselves where they can do what the heck they like. Whatever happens in that little sphere is supposed to be completely detached from the public. The only reason why Max Mosley's unconventional sexual tastes have had any public impact whatsoever is thanks to the trashy newspaper you're writing for and defending!
"And in our celebrity-obsessed age this is a hazardous route to take."
Presumably, as a Christian leader, you're not a fan of our celebrity-obsessed age. Why are you giving the tabloids carte blanche to stick cameras into celebrities' bedrooms, and splash the gory details all over the web? An ex-archbishop encouraging the press to make money by appealing to people's worst instincts! Shocking ...
"In the past a public figure has known that scandalous and immoral behaviour carries serious consequences for his or her public profile, reputation and job. Today it is possible to both have your cake AND to eat it.
But a case can be clearly made for a direct link between private behaviour and public conduct. If a politician, a judge, a bishop or any public figure cannot keep their promises to wife, husband, etc, how can they be trusted to honour pledges to their constituencies and people they serve?"
If you were talking about an elected politician here, you may have a point. If it were an MP who had sounded off about truth, honesty, integrity; who had lined up his wife and kids for publicity photos; who had voted conservatively on moral issues in the Commons; then you might have a point. But Mosley isn't elected and doesn't hold public office, nor does his job have anything whatsoever to do with public morality. He's in charge of organising a sport where jet-powered lumps of carbon fibre go round in circles at 200mph. I can't see what public interest is served by blowing open the lid on his private sex life.
In his judgement, Eady agrees that when he had prison-themed sexual roleplay with five dominatrices, Mosley had an expectation of privacy. NOTW argued that although they breached that privacy, it was justified by the public interest - because Mosley was engaged in dangerous and violent behaviour (which can be a criminal offence even if it's consensual).
The judge disagreed with them - in quite memorable terms, I think:
"As Woman D accepted, it was painful – 'but in a nice way'. Although no doubt interesting to the public, was this genuinely a matter of public interest? I rather doubt it."
Mosley vs. News Group Newspapers Ltd, §114
(It's important to note that this judgement doesn't remotely affect the right of the press to claim a public interest defence in future privacy cases. It merely states that in this case, the public interest defence wasn't applicable, since Mosley's sex life wasn't a matter of any public concern. I can't see any ongoing threat to the freedom of reporting.)
George Carey continues:
"Max Mosley claimed that what consenting adults do with each other behind closed doors—however depraved, brutal and repugnant—is both private and harmless. I think that is deplorable. And I believe most people would ridicule his claim."
Again: come off it. Of course it's private and harmless. It happened behind closed doors, between adults, and in the long run, nobody was hurt - at least, if people were hurt, then it wasn't serious, it was with their full consent, and they were clearly enjoying it!
Carey is trying to apply a Christian view of morality here, where there is a divine arbiter - God - who gets to decide what's morally acceptable and what isn't. The problem is, Britain is made up of people of all beliefs and of no belief. Many of them will disagree with Carey's views on morality, and those people shouldn't have to live under a legal system based on one man's (or one religion's) take.
The only appropriate way to construct our legal system is to criminalise things that harm others, and permit things that don't harm others. Yes, it would create a morally relative society, where actions are good or bad based on their consequences, rather than on anything inherent. Yes, that might sound unpalatable to absolutists like Carey. But the truth is, it would give everyone the greatest possible freedom to decide for themselves what moral code to follow.
"This is a bleak, deeply-flawed 'anything goes' philosophy. It is also dangerous and socially undermining, devoid of the basic, decent moral standards that form the very fabric of our society."
In the whole of Carey's total car-crash of an article, this is the bit I have the biggest problem with. Surely the most basic, decent standard that underpins our society is a fair legal system which applies equally to everyone. But Carey is calling for judges to selectively refuse to enforce people's legal rights because they happen to be into kinky sex. Denying people justice because you disapprove of their private behaviour is, to me, far more depraved than a bit of harmless roleplay with a bunch of hookers.
Mr Justice Eady puts it far more eloquently than I could hope to manage:
"It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose."
Mosley vs. News Group Newspapers Ltd, §127
Mosley vs. News Group Newspapers Ltd, §127
Carey goes on (and on ...):
"The new High Court ruling prevents press investigations into matters of clear public interest. It needlessly shackles the press and removes the right of the public to make informed moral judgements."
This strikes me as pretty rich. He's spent the whole article so far asking for a particular moral code - his own one - to be granted special recognition by the law, and forced upon everyone. And now he's pleading for the right of the public to make up their own minds about moral issues.
Partly, this is the desperation of a someone whose argument is slipping away from him as he writes it - but mainly, it's the confusion of someone who doesn't know what he stands for in the first place. Carey claims to have a deeply-rooted, firm moral viewpoint, but this article demonstrates that his views are all over the place. There's only one consistent thread running through this litany of self-contradictory arguments: the desire to use the law of the land to hammer people that he personally doesn't like. The rest is just desperate scrabbling around for any reasonably-sounding argument that might justify this bigoted selfishness.
"Judge Eady's ruling may have made legal history. But I, for one, fear the consequences."
I say again. Why, oh why, is this man in our parliament making our laws for us? Sometimes, I despair of Britain.
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