Editorial: When Rape Does not Mean Rape; the London Schoolboys and the Sexual Offences Act
26 May 2010British commentators have understandably expressed outrage at the treatment of two London schoolboys who, at the ages of 10 and 11, have been convicted of attempted rape of a child under 13 for having consensual sex with an 8 year old girl when they were 10. Unfortunately, commentators who use the word “rape” merely hide a shameful secret of UK law: whether or not the girl consented to the sexual activity could not have affected the technical guilt of the boys. Even journalists writing for respected newspapers are apparently oblivious to this fact.
Under the Sexual Offences Act 2003, “rape of a child under 13” is an offence of penetrative sex with a child under the age of 13. A child having consented to the activity is not a defence, so no distinction is made between forcible rape and consensual acts, even if those acts involved only children of the same age. If, for example, a 10 year old boy has consensual penetrative sex with a girl of 12, he has committed the offence of “rape of a child under 13”. The girl, by comparison, is automatically considered the “victim” and may not have committed any offence. So much for preventing discrimination on the basis of gender.
Following the ruckus over the conviction of the boys, one commentator common occurrence long before the days of pop stars gyrating their hips and pole dancing kits for kids. Such sex play undoubtedly has a sexual undertone and one should not be surprised that some children choose to take that sex play further than others. To treat the behaviour in question as anything other than natural and generally harmless is to be indoctrinated by the pervasive moral panic over the reality of child sexuality.
One wonders why this case was even taken to court, and furthermore, one must question why it remained there. If a 10 year old physically assaulted an 8 year old, the case would be dealt with by parents, not police. The sexual nature of an interaction should not elevate the case from a childhood altercation to a criminal case to be heard at the Old Bailey. Reports do indicate that, in a pre-recorded interview with a police officer, the girl claimed to have been forced into sexual activity. When the girl was questioned in court, however, she revealed that the boys had not forced her to engage in sexual activity; the activity had in fact been consensual. This difference raises the question of suggestive interviewing or coerced testimony having taken place in early stages of the investigation, followed by a mere rubber stamping by the Crown Prosecution Service, who previously used discretion in cases involving sexual activity amongst children.
When the girl informed the court that the sexual activity was consensual, the charges should and could have been dropped with immediate effect, even though the boys were technically guilty. Rather than admitting their mistake in prosecuting the young boys, prosecutors evidently hoped to salvage their reputation by dragging young children through court, knowing that the boys’ actions would inevitably result in a guilty verdict. By prosecuting those boys to the point of conviction, the judicial system has labelled them sex offenders, which will inevitably result in repeated failures of ISA criminal background checks, which will soon be required for millions of jobs and volunteer positions. Not only has the state ruined the boys’ childhood, but it has also destroyed their career opportunities for years to come. The 8 year old girl, meanwhile, appears to have been coerced and manipulated by the authorities in order to extract evidence, forced to testify in court and made to feel like a victim of rape. The judicial system which is supposedly in place to protect children and others has in fact tarnished the lives of all who it touched, including the “offenders” and the “victim”, relatives and friends of the children, and the taxpayers who must foot the bill for the prosecution.
This case highlights the problem of the state becoming so deeply involved in matters related to sexuality. Even if the young boys had forced the girl to have sex with them – which would indeed have been very troubling – a case involving offenders of 10 years old is a matter which should be dealt with by parents, just as it would have been in the case of physical assault. In my opinion, it would not be misplaced to initiate prosecution of such cases only with the consent of a victim, parent or competent social worker, except in extremely serious cases such as those of incest or prostitution (when police really may need to press charges). Such a policy would cut out the intervention of police and prosecutors in cases of childhood sex play, and one suspects that even the most neglectful parents and incompetent social workers would apply for prosecution upon learning that someone actually did sexually abuse a child for whom they are responsible.
This case is closely linked with the paedophile panic, hence my decision to post this article on a website about paedophilia. While parents are led to worry somewhat obsessively about paedophiles, they are accordingly made oblivious to the threatening actions of the state, which systematically takes childhood concerns out of their hands and into the hands of judicial systems which are not fit for such a purpose. In doing so, decisions about children’s lives are made by judges and prosecutors who know little about these children’s lives and who are subject to bureaucratic systems which fail to account for context and personal issues and histories. If the crusade against sex play amongst children continues, more children are going to be dragged through court for consensual behaviours with peers, tarnishing the lives of everyone involved. While parents are slowly led to believe that their children are at serious risk from bogeymen, the state quietly takes children out of their hands and into the courts of injustice. This is a problem which needs to be addressed.
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