Yet another victim-blaming travesty

// 13 July 2011

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no more silence about violence sq.jpg Six footballers who were imprisoned for raping 12 year old girls have been released, after judges ruled that their 2-year sentences were “excessive”. The six men all admitted various charges of rape, after raping two 12 year old girls in a park late at night. But today Lord Justice Moses, Mr Justice Holroyde and Judge Francis Gilbert QC ruled that being imprisoned was inappropriate as it was a ‘difficult’ case.

In an astonishing display of victim blaming, the Mail (I know, I know, but there are only two papers reporting on it so far) stated that, “The court heard [one of the girls] was more sexually experienced than the men and it had been her idea to arrange the meeting”. It is not ever appropriate to describe a 12 year old as ‘sexually experienced’. If she has had previous sexual ‘experience’, then it should be correctly named as abuse.

The fact that the girls apparently looked older than 12, and had been ‘looking for sex’, is quoted. But the truth is that children sometimes behave in a precocious fashion. It is up to the adults around them to not exploit this by having sex with them. 12 year old girls often do want to look, and act, older than they are, but this is nearly always clearly visible to those around them. Adults hold the responsibility of not taking advantage of children. Under the law, children are considered to be unable to consent to sex, and this is usually taken most seriously when the child is under the age of 13.

The men have now been released, and their sentences cut to one year, and suspended.

It is clear, yet again, whose side the legal system is on. If it can’t protect two pre-teen girls against six grown men, then who can women and girls have faith in?

Edited to add: I have just been reminded that, while reporting on this case at trial, the Daily Mail was widely criticised for referring to the 12 year old rape victims as ‘Lolitas’. It reinforces just how much these girls have been up against in the coverage and treatment of their trial.

[The image is a photograph of a smiling woman holding a banner. The banner has a rainbow background, and the words ‘No more silence about violence’. The photograph is used under a Creative Commons Licence and was taken by Rebecca Dominguez.]

Comments From You

Laura // Posted 13 July 2011 at 10:23 pm

This is awful. My heart goes out to the girls.

Jess // Posted 14 July 2011 at 11:01 am

What I find shocking about this story is that it still has the ability to shock when in actual fact denial, minimisation, victim-blaming are so mundane and so absolute in their endless repetition.

David // Posted 14 July 2011 at 1:51 pm

I’m not entirely sure how to put this without coming across as a complete arse, but I don’t think that the judge was wrong.

The girls told the boys (and at that age they are just boys) that they were older than 12 (including lying about their age repeatedly on Facebook and in text messages) and they consented to the sex. The whole case centred on the legal position that children under the age of 13 cannot legally consent to sex under any circumstances- it’s as close as you can get to the US term ‘statutory rape’. Had the girls been a few months older at 13 then they would have been able to consent and it would not have been rape, although it would still have been illegal and more than a little unpleasant.

Had the girls been 13 the boys would probably not have been sent to prison at all. Graham Rix, a football coach who plied a 15-year-old with drink and then had sex with her several times, was only sent down for six months- that was a much more disturbing case and much more abusive.

For 12-year-old girls to be arranging sex with groups of boys shows that something has gone drastically wrong in their childhoods- you rightly allude to past abuse- the question is whether the boys were culpable for that abuse. The boys thought the girls were 16 and they thought the girls were consenting (indeed the prosecution didn’t seek to argue that they didn’t consent or that the girls didn’t pretend to be older; the issue was that 12-year-olds are- rightly- not legally allowed to consent). On that basis you’d have to say that a two-year prison sentence was excessively harsh- if the girls had been 16 (as they claimed to be) no crime would have been committed at all. It isn’t about “blaming the victim” for what happened to take the actual circumstances into account when setting the punishment.

I don’t want to go down the Ken Clarke “bad rape versus okay rape” route- all rape is bad rape- but this case seemed to hinge on a legalistic definition of rape rather than a moral definition of rape. In this case it isn’t that the girls didn’t consent- it’s clear that they did- it’s that they couldn’t consent. It just seems a bit unfair to me to treat these boys the same as the men who get their colleagues or friends paralytic with alcohol on a night out and then rape them.

The boys very definitely have an awful lot to learn about treating women respectfully rather than as pieces of meat to use, but if being a misogynistic prat was punishable with prison we’d run out of cells to put them all in.

Philippa Willitts // Posted 14 July 2011 at 3:45 pm

Needless to say, I disagree. A few times you mention, ‘had they been 13’. But they weren’t 13! And at that age, a few months is quite a big difference.

12 year old girls do try to act older than they are. They do lie about their age to impress boys. They may have appeared to consent, but in law they were unable to. It’s unimaginable to me that not a single one out of 6 grown men can tell the difference between a 12 year old and a 16 year old.

The men were responsible for their actions. They should not have done what they did.

Jess // Posted 14 July 2011 at 4:12 pm

Your logic is a bit off, David.

‘The girls told the boys (and at that age they are just boys) …’

If the reporting is accurate – the ‘men’ were aged: Ashley Dwane Charles, 20, Courtney Oneil Amos, 20, Jahvon Jelani Edwards, 19, Dennis Arthur De Sousa, 19, Luke Joseph Farrugia, 21, and Jahson Terrance Downes, 20.

Hardly boys by any definition.

Tori // Posted 14 July 2011 at 5:12 pm

David, I appreciate your comment, it was well thought out and well spoken.

I would like to counter simply that it doesn’t matter that the “boys” (aged 19-21) thought the girls were 16 years old. I can’t get out of a speeding ticket just because I was told by someone else that the limit was higher. It was my responsibility to look at the signs, just as it was their responsibility verify the girls were 16. Ignorance is not an appropriate defense.

David // Posted 14 July 2011 at 6:28 pm

@ Philippa: Of course they should be accountable for what they did- they were found guilty and that conviction hasn’t changed. Being on the sex offenders register will be a massive punishment for them and don’t forget that they have still been sentenced to a custodial sentence of 12 months, albeit suspended.

The question is whether what they did merits a two-year custodial sentence. I don’t think it did. My point is that it was “rape” because of the legal definition of it- at no stage did the prosecution even attempt to claim that the girls were groomed, plied with alcohol or otherwise abused by the group of boys. If they were a few months older it wouldn’t have been rape- the girls sent repeated text messages to the boys demanding that they meet them for sex.

@ Tori: They did look at the signs, though. The girls sent them text messages saying they were 16 and changed their Facebook profiles to say that they were 16. Whether they should have known they were being lied to or not is only partially the point- they asked and were lied to in response. Yes, all girls at that age want to look older and more mature but there comes a point when it is reasonable for someone to assume that they’re being told the truth. It’s not blaming the victim to say that the boys were entitled, in my opinion, to assume that they were being told the truth.

In terms of ignorance being a defence- it isn’t and wasn’t. It can be used to mitigate a punishment though. Obviously the higher court thought that the sentence should have been mitigated further, and adjusted the punishment accordingly.

As I say, I’m incredibly wary of going down the ‘good rape versus bad rape’ route because that’s a load of nonsense- all rape is bad. But I don’t think that what happened in this case- where a girl consented to sex but wasn’t legally allowed to- merits the same punishment as where a man knows full well the woman doesn’t consent. In further defence of the boys, it should be noted that one of the girls withdrew her consent partway through and the boy immediately stopped. I point that out to show that other rapists would not have done any such thing.

To use your speeding ticket analogy, it would be a defence to speeding if a sign erroneously said the speed limit was 40mph not 30mph.

@ Jess: I work with a lot of young men of that age and it is fair to say that most of them are neither mature nor adult, especially not when it comes to sex. I don’t say that to excuse them or use the old chestnut of “men don’t know what they’re doing” and I certainly don’t say that to blame the victims.

As I say, I find it quite tough in this case to find the right words as it is very delicate. I read the F word because I enjoy it and agree with it. I don’t want to appear to condone child abuse or rape, I just don’t think this case is as clear cut as most other cases. If a girl or a woman says no, or is not able to say no because of drink/drugs/other then it is rape, end of story; in this case one girl didn’t say no and actually went so far as to specifically say yes to several of the boys. The other girl said yes and then said no and the boys stopped.

However I’d agree with you about the reporting from the Daily Fail. There are a lot of delicate nuances in this case and they’ve just gone and trampled all over them with their usual brand of LYING SLUT WAS ASKING FOR IT REALLY hate-filled bile. Branding them “schoolgirl lolitas” and trying to blame them entirely for what happened is simply disgraceful (unless they really did pick up the real message in Nabokov’s novel- that the ‘seduction’ was all in Humbert’s mind not the girl’s- which I highly doubt). The way they’ve salaciously reported the details of this case really is quite sickening. They’re kids for crying out loud.

sarahfogg // Posted 14 July 2011 at 7:05 pm

As I understand it, mistaken age is not accepted as a valid defense when the victim is under 13, even if the victim claimed to be older. I appreciate David’s position, but I don’t think this is a case for distinction between ‘moral’ and ‘legal’ rape, precisely because children often act older than is safe or appropriate, and it’s generally understood that it’s our job as adults to control ourselves and not exploit that behaviour. Surely the whole concept of the age of consent is based on the idea that children sometimes make terrible decisions and it’s our job as adults to protect them until they can make good ones with reasonable consistency. It is immoral AND illegal to have sex with such a young child, even if they appeared to consent, because adults have a moral duty to refrain from exploiting children. Ignorance has never been a good excuse, because the law tends to be based on consequences rather than intentions.

This might also fall under the kind of case where a heavier sentence is in the public interest, regardless of the behaviour of the victims. Otherwise isn’t the court basically saying that child rape is fine as long as the child showed poor judgement or reckless behaviour? The problem is to do with the implied reasoning behind the sentence as well as the facts of the individual case, the courts should never be suggesting that a 12-year-old is an acceptable sexual target under any circumstances.

Is it possible to complain about this as an unduly lenient sentence? The original is too long ago, but the appeal is still within the 28-day limit.

The Quick Throw In // Posted 14 July 2011 at 7:57 pm

Sarah, you are right, it is not a defence to conviction. As David points out perfectly well, they were convicted. But it seems that they pleaded on the basis that they did not realise that these two children were below the age of 16 (most people would say ‘yeah right’). However the CPS seems to have accepted this basis (we aren’t told why – to be charitable it may have been in order to avoid the two girls giving evidence at a trial – six defendants, that’s a long trial). This basis of plea was made in order to mitigate ‘only’ against a harsher sentence – not a defence. The Court was sentencing these men purely on their basis of plea – again most people would, I think, agree that those without a ‘guilty mind’ ought not to receive an immediate custodial sentence. I don’t think that is too controversial.

cim // Posted 14 July 2011 at 8:14 pm

David: “at no stage did the prosecution even attempt to claim that the girls were groomed, plied with alcohol or otherwise abused by the group of boys”

But why would they need to? The law doesn’t require that they prove any of that. The law only requires that they prove that sexual acts occurred and that the girls were aged under 13 at the time. No need to prove anything about consent. No need to prove that they knew they were under 16. So why even attempt to show that in court – and potentially make a stressful experience even longer and more upsetting for the victims – if you don’t need to do so to get a conviction?

And I agree with sarahfogg that the law should be putting stronger sentences in for these situations to make it absolutely clear that it is an absolute requirement to check how old people are. (This may mean that a few actual 16 year-olds have an undocumented use for those “prove your age” cards. I don’t think that’s a problem. Perhaps it should be officially documented as a use.)

Jess // Posted 14 July 2011 at 8:42 pm

@cim & sarahfogg. I agree.

Men who sexually entitle themselves to the bodies of children they meet or groom on the internet should not be able to hide behind the defence of ignorance even in the face of a child’s dishonesty. If the message that ignorance is no defence had been sent out then girls who have been inappropriately sexualised by their fathers or other male relative, or even by tv and pop videos might be a bit safer.

@David.

It is blaming the victim when 20+ year old men are referred to as boys and so their culpability is minimised while 12 year old girls are understood to be women and so entirely to blame for being raped.

Roop // Posted 14 July 2011 at 9:37 pm

@ cim

“And I agree with sarahfogg that the law should be putting stronger sentences in for these situations to make it absolutely clear that it is an absolute requirement to check how old people are. (This may mean that a few actual 16 year-olds have an undocumented use for those “prove your age” cards. I don’t think that’s a problem. Perhaps it should be officially documented as a use.)”

The point David is making, though, is that they DID (according to the evidence before the court for the purpose of sentencing, at least) check the ages of the girls. They were told they were 16 years old, as confirmed by their Facebook pages, and, it seems to be claimed, by their appearance.

So, the facts as believed by the defendents, seem to have been that they were having sex with consenting 16 year olds. Which would obviously be perfectly legal. So presuming all that is true, they had no intention of breaking the law, nor do they seem to have been reckless about breaking the law. Which is why things are a bit complicated. The basic principle of the criminal law has always been that punishment is based on guilty acts AND a guilty mind. Where a guilty mind is not present, that is clearly relevant to sentencing (indeed, in the vast majority of crimes, it would prevent conviction – as it would have here, had the ages been a few months different). So I think it’s a bit more complex case than the article makes out. The girls should never have had to go through what they went through – I don’t think there’s any debate about that – but that doesn’t necessarily mean that the particular men involved in the actions were fully responsible for what occurred, given the disparity in their belief as to the relevant facts.

I don’t see your idea of forcing 16 year olds to carry ‘prove your age’ cards would do much good, either, unfortunately, given that these things can be forged. The truth is, determining an age of a person with absolute certainty is not always that easy, especially where that person is seeking to deceive in some way. Where there is significant doubt, people should clearly always check, but I’m fairly uneasy about punishing people harshly where, having checked, they therefore genuinely and reasonably believed the facts to be significantly different than they turned out to be.

It’s a sad case all round, to be honest. The situation should never have occurred. But that’s not to say that sending people to prison is necessarily justified given the particular facts involved.

(Again, how true the claims of the circumstances is something people might dispute. But where the prosecution has not disputed them, the court hearing the appeal legally must make their judgement on the basis that they are as stated. They don’t have any choice on that.)

sarahfogg // Posted 14 July 2011 at 10:26 pm

@ The Quick Throw In

I think the problem with it being a mitigating factor is that it’s not just something that’s often dismissed. CPS guidelines say that consent or mistaken age are NEVER relevant in such cases under ANY circumstances. If they’re sure enough that it’s not a good defense that they will NEVER allow it in the trial, then it seems ethically inconsistent to consider it in sentencing.

I’d also point out that two years for the rape of a child is already a light sentence, one which I think accommodates the guilty plea and the individual circumstances. The maximum allowable sentence for this kind of crime (rape of a child under 13) is life imprisonment. As for a ‘guilty mind’, it is common for violent crime to be punished with a custodial sentence, even less intentional violent crime (like manslaughter). If we accept that rape is an act of violence in itself (which I do) then it almost always deserves at least a short custodial sentence, guilty mind notwithstanding.

I also agree with Jess that it is not appropriate to refer to legal adults as ‘boys’ and allow them diminished responsibility, while also insisting that a pair of under-13s should take responsibility for their own rape. The reason the cut-off point that makes this always, indisputably rape exists is because 12-year-olds are not considered to be able to meaningfully consent, not just legally, but morally and psychologically. It’s not an unfair, arbitrary cut-off, it’s meant to reflect the reality that 12-year-olds and younger can’t be reasonably expected to show good judgement in these matters.

Many children are murdered because they made similar errors in judgement, including initiating sexual contact or deliberately inciting violence, but we don’t tend to grant lighter sentences to their killers because murder is always wrong, even if the victim literally asked for it. Similarly, the lawmakers have decided that sexual contact with a child this young is always wrong, so it is also not subject to such arguments.

Sorry, I’m a bit angry because, like cim, I can’t stand the implicit idea that there are ever good excuses for this sort of behaviour. I hope this hasn’t come across as too aggressive, I do appreciate how detailed and articulate the other comments have been.

jay // Posted 15 July 2011 at 9:17 am

i just want to be a male voice here that is absolutely not prepared to call 19, 20 and 21 year old men boys, in any situation.

The Quick Throw In // Posted 15 July 2011 at 9:26 am

@Sarahfogg

“it seems ethically inconsistent to consider it in sentencing”. That the whole point of mitigating circumstances that they are in themselves not a defence against conviction.

For example, a smart young chap, Owen had been bullied for many years in school, a fact he had not forgotton. One day Owen encounters his tormentor, Harri, in the street. Harri, true to form, starts shouting abuse at Owen. Owen has had enough. He’s angry and is provoked enough to pick up a brick lying on the ground and rush over to Harri and brings the brick down on Harri’s head with considerable force. At the trial for the offence of grievous bodily harm, the fact of Owen being bullied over the years and being provoked is not a defence – and so he is convicted – but now he needs to be sentenced. But it would perfectly fair for those facts to be raised as mitigation. Why should Owen get the same sentence as another person who had simply encountered a stranger in the street and hit that person with a brick causing a similar injury to Harri’s. I don’t think it’s inconsistent to make a distinction between the two – but you do ?.

As for the issue of ‘guilty minds’, there is a lot to be considered – it’s also known as mens rea – if you’re really interested look it up in Wikipedia – btw if you do read it, the type of offence committed by the men in this case is one of ‘strict liability’ – it does not require mens rea to be convicted of it. [ I just followed the link in Wiki to strict liability and found the following ;-

“In a 2005 case, a 15 year old boy was convicted of statutory rape of a child under 13, a crime under Section 5 of the Sexual Offences Act 2003. The prosecution accepted the boy’s claim that he had believed the 12-year-old girl to be 15, but he was nevertheless sentenced to 12 months detention. This was reduced on appeal to a conditional discharge, but, in a 3-2 decision, the House of Lords declined to reverse the conviction”]

Feminist Avatar // Posted 15 July 2011 at 11:35 am

You don’t need to know you are committing a crime to be guilty of it; if you could, every criminal would argue in defence that they didn’t know their actions were criminal. And, plenty of people are found guilty due to carelessness- so not checking health and safety rules; not driving safely; not considering the consequences of actions- that lead to a death or other crime.

I think perhaps the question here is not whether or not what these men did was wrong, but what is an appropriate sentence in such cases and whether prison serves a useful function as a response. There are usually a few parts to making this decision: does the crime need to have a punitive element to dissuade the offender and others from committing similar crimes; is the offender a danger to the public and will repeat this or other offences; and, from the perspective of the offender, is prison the appropriate intervention in this person’s life at this point (based on their previous convictions/ behaviours) and would help rehabilitate them for the good of society and themselves.

Now, I don’t really think that prison is a useful intervention in most people’s lives, especially for young people, and think that alternative punishment is desireable. I also think that most punishments should be offender driven- that is, they should be based on what will help rehabilitate the offender, not on being punitive. And, this means that we should not look at crime and say, we need to punish to show we think this is horrendous; but we need to think what intervention in this offender’s life will make all our lives better. If that is a shorter prison sentence, then so be it.

I also think that, despite the rantings of the Daily Male that prison is a cushy place, it is not, especially for young men (young offenders are 18x more likely to commit suicide for example). Many young men live in fear in violent conditions for the entirety of their prison sentences, and we really need to ask- how does that effect them physchologically when they return into society, and how much torture is enough of a punishment? What purpose does long prison sentences serve if you are effectively making it extremely difficult for offenders to integrate back into society? And, these are the sorts of decisions that we hope the judges think about when making their decisions.

And, while these are men, until you are 22, you will placed in a young offender’s institution, rather than an adult prison.

sarahfogg // Posted 15 July 2011 at 11:43 am

I suppose the difference is that in other crimes, like your example, the mitigating factors affect the charge as well as the sentence. Without the bullying, ‘Owen’ might have been charged with Grievous Bodily Harm With Intent, which carries a tougher sentence. If the girls had been over 13, mistaken age with consent could have seen the men charged with Unlawful Sexual Conduct. In this crime, consent and mistaken age are considered SO irrelevant that there is no other charge, the implication is it is always, absolutely, a very serious and inexcusable crime. Even murder tends to have different charges that take account of the factors that normally mitigate sentencing as well. To be fair though, I am only familiar with the procedure for rape, murder and some kinds of assault, so I don’t know if this is consistent across the whole justice system.

As for the guilty mind, our justice system frequently punishes people for what boils down to poor judgement rather than fitting the demands of mens rea, that’s why ‘strict liability’ crimes exist, because we prosecute on the basis of consequences as well as intent. If you drive recklessly and hurt someone, you’re basically charged with poor judgement or carelessness that made the injury of other parties unacceptably likely. This is more or less the same sort of law – carelessness over the age of the other party made injury unacceptably probable, therefore a serious punishment is administered even if no injury actually occurred. It’s punishing unacceptably reckless behaviour, not malicious intent.

I do also think it’s important to consider what’s in the public interest as well as the circumstances of the individual case, since the law is meant to protect the population at large as well as do justice to the victims. With such a light sentence, the message is ‘as long as you can claim you didn’t know, it’s fine to have sex with children’, when it really needs to be ‘it’s never okay to rape children, and yes that is what you’re doing whether it’s carelessness or malice that caused it – it’s not that hard to just not do it if you’re not sure’. It’s the line we take with alcohol sales, dangerous driving, and at least in theory with rape involving an intoxicated victim.

And I don’t buy for a second that these men were ‘sure’, they checked so many times that they obviously thought the age claim was extremely dubious (it’s not exactly hard to lie on facebook). The proper course of action under the law is to just not risk it, because the possible consequence is that you rape a child. So I suppose this boils down to whether or not the behaviour was unacceptably reckless. I think it was, but it was established earlier that you disagree. I think that, given their obvious suspicion as to the truth of the girl’s claims, a facebook page is not sufficient to support reasonable belief with a child this young.

A forged proof-of-age card I would feel differently about, since they’re meant to show you’re able to enter some kinds of employment and buy some restricted items. Facebook all you have to do is type in new details, it’s not good enough proof.

piombo // Posted 15 July 2011 at 1:59 pm

@Jess at 16:12

“If the reporting is accurate – the ‘men’ were aged: Ashley Dwane Charles, 20, Courtney Oneil Amos, 20, Jahvon Jelani Edwards, 19, Dennis Arthur De Sousa, 19, Luke Joseph Farrugia, 21, and Jahson Terrance Downes, 20.”

The increased ages in reports of the appeal vs reports of the trial suggests these are there ages now, which would mean these men were between 17 and 20 on the night in question.

@sarahfogg at 22:26

“CPS guidelines say that consent or mistaken age are NEVER relevant in such cases under ANY circumstances. If they’re sure enough that it’s not a good defense that they will NEVER allow it in the trial, then it seems ethically inconsistent to consider it in sentencing.”

I don’t see how that follows, and the guidelines also specifically mention that claims of consent are a factor in sentencing: http://www.cps.gov.uk/legal/s_to_u/sexual_offences_act/#Offences_against_children_1

@Feminist Avatar 11:35

“And, while these are men, until you are 22, you will placed in a young offender’s institution, rather than an adult prison.”

21, not 22 – which is why the eldest was originally sentenced to prison.

The Quick Throw In // Posted 15 July 2011 at 2:03 pm

@Sarafogg

For what it’s worth, If I had been the prosecutor, I would have had difficulty accepting their basis of plea. But hey, I’m not privy to the evidence so what do I really know of the case to judge it – very litle.

sarahfogg // Posted 15 July 2011 at 6:54 pm

@piombo

I must have misread it I suppose, but I still think the judge’s decision was unduly lenient. It still does seem a bit inconsistent to me, just because this is the only crime I know of with such enormous restrictions on the kind of defenses are allowed compared to mitigating factors allowed, but I don’t have any other arguments for it so it seems like my personal bias is creeping in. (For clarity – my bias in this case is a belief that rape tends not to be taken as seriously as it should in a way that often excuses unacceptable reckless behaviour on the part of the perpetrator at the expense of justice for the victim.)

@ Feminist Avatar

I hadn’t really thought about it from that angle. I’d be more willing to accept that as an argument in this case if there’d been some kind of mandatory therapy or something (generally I’m in favour of custodial sentences for violent crimes, and other options for non-violent crimes), but in general I think you’re probably right (even though I think rape is by definition a violent crime). Reducing crime is always a better goal than just punishing people.

@ The Quick Throw In

You’re right, it is always worth remembering that there may be facts we aren’t privy to, especially in regards to Feminist Avatar’s point about custodial vs. rehabilitating sentences. Based on the information we have I’m deeply suspicious of the claim (and still looking into contesting it as an unduly lenient sentence), but like you I wasn’t there for the actual appeal hearing, so I guess this is about as far as we can speculate.

piombo // Posted 15 July 2011 at 10:13 pm

@sarahfogg

The offence of possessing a prohibited firearm (e.g. sawn-off shotgun) comes to mind – strict liability, mandatory five year minimum sentence – unless the judge finds there were exceptional circumstances.

As was demonstrated in this case:

http://jackofkent.blogspot.com/2009/11/paul-clarke-anatomy-of-injustice.html

http://jackofkent.blogspot.com/2009/12/injustice-of-paul-clarke-case.html

sarahfogg // Posted 15 July 2011 at 10:33 pm

@piombo

Ah, you’re right, that does look similar. Fair enough, I’m not familiar with firearms laws so I’d never come across it.

As I’ve said I’m still deeply suspicious of the mistaken age being sufficient to reduce this particular sentence as low as it is, but as TQTI has pointed out we don’t know all the facts, so I can’t possibly say for sure. Thanks for the information.

Jess // Posted 16 July 2011 at 8:11 am

@ piombo

Thanks for the link to the SOA, piombo. I know not aimed at me but very interesting. I’ve never seen it before.

It seems to me that the issue of consent would not have been raised in this case – a child is under 13 can’t consent – but the potential for victim minimisation and victim are built into the act where under 13’s claim to be 16 or older and the perpetrator is an adult.

And if I have understood the act properly it seems that the ‘boys’ were very lucky they were men. (Oh, the irony.)

Where an offence is carried out by a young person under 18: ‘There is a defence of reasonable belief that the child is 16 or over. This does not apply where the child is under 13.’ However, where the offence is committed by an adult/s: ‘Where a victim had claimed to be 16 years old the relevance of that fact would depend on all the circumstances.’ [including I suspect a ‘reasonable belief that the child is 16 or over.’]

Ultimately, the problem seems to be that where an adult can argue that there was ‘reasonable belief that the child was 16 or over’ they’ll get a very light sentence for statutory rape. My moral compass tells me that the act needs a rewrite. An adults responsibility should not be diminished by a child’s dishonesty, in these sorts of cases.

piombo // Posted 16 July 2011 at 12:42 pm

@Jess

That’s the CPS guidance on the SOA, not the Act itself, which you can find here:

http://www.legislation.gov.uk/ukpga/2003/42/contents

Consent would have been, and on the published reports was, raised in this case not as a defence but as a factor in sentencing.

“Where an offence is carried out by a young person under 18: ‘There is a defence of reasonable belief that the child is 16 or over. This does not apply where the child is under 13.’ However, where the offence is committed by an adult/s: ‘Where a victim had claimed to be 16 years old the relevance of that fact would depend on all the circumstances.’ [including I suspect a ‘reasonable belief that the child is 16 or over.’]”

You’ve misinterpreted this – The first part you quote applies to the offences under section 9 to 12 whether committed by an adult or a young person, and the second part applies to section 5 whether committed by an adult or a young person.

The guidelines appear to be mostly based on this judgment:

http://webcache.googleusercontent.com/search?q=cache:pnLU3Hfqz4MJ:www.britishcaselaw.co.uk/corran-and-ors-r-v-2005-ewca-crim-192-02-february-2005+&strip=1

Jess // Posted 16 July 2011 at 1:04 pm

@piombo

Thanks for the response. Although it now seems all rather over complicated to me. Glad to say I feel morally straight-forward on this issue.

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