Saturday, 16 July 2011

Consent, statutory rape and the daily mail

Daily Mail, justice and child protection fail

*trigger warning*
If you are upset or affected by any of the issues in the blog, I have put Child Line’s number at the bottom, as well as links to finding your local rape crisis. Links to all quotes and sources are at the end of the post.

Back in March, I blogged about a case of gang rape of two 12 year old girls (http://sianandcrookedrib.blogspot.com/2011/03/daily-mail-fail.html). The Daily Mail headline quoted the men’s defence lawyer that the girls were ‘Lolitas’ and indulged in some victim blaming that was so grotesque even some Daily Mail readers were shocked, although that didn’t prevent others from referring to the girls as ‘slutty’ who should be punished as they were to blame, not the ‘lads’.

Anyway, this ugly story reared its head again this week, as a judge in the court of appeal released the men from prison and gave them a suspended sentence. Why? Because according to Judge Moses, the girls ‘wanted to have sex’ and were ‘more sexually experienced than the men’.

There are plenty of reasons why this case is problematic and it is difficult to know where to start. So let’s start with my (admittedly not academically informed) grasp of the law and what we mean by consent.

Statutory rape laws exist because legally it was decided that there had to be a cut off point that recognised that young people and children cannot meaningfully consent to penetrative sex and other sexual activity when they are still children. In the UK, the cut-off point is 13. At the age of 12, the law reasons, a child is not able to meaningfully consent to sex, because they are too young, they are immature, they are physically and emotionally a child still. By physically, I mean as well that some 12 year olds have not yet entered puberty. Statutory rape is not a 15 year old girl consensually having sex with her 16 year old boyfriend, as Ken Clarke erroneously claimed. It is the cut off point where we say children are too young to meaningfully consent to sex.

Meaningful consent means that when you consent to sex, you are doing so because you want to have sex. Because you are in love maybe. Or because you fancy that guy or girl at the other end of the bar so much you are weak at the knees and need to be in bed with them right now! Or because you don’t even like someone that much but that chemical reaction is racing round your body and for reasons you don’t understand, you know it has to end in sex. There are loads of times and reasons why we want to have consensual sex, those are just three examples. The key thing is that meaningful consent is not consenting because you feel you have to, or because your partner is pressuring you, or because your friends are egging you on, or because you don’t have the words to say no.

Here’s some context. We are currently experiencing a worrying lack of knowledge about consent in the UK, particularly for young men and women. A recent radio phone-in show featured a young woman, who had been gang raped by her boyfriend’s friends, asking the talk show host whether it was in fact rape. She didn’t know, because she believed her boyfriend, and his friends, forcing her to ‘have sex’ she didn’t want to have, was ok, that it was ‘love’. I’ve spoken to women working in Rape Crisis centres who tell me that girls come in, having been raped, but believing that having to ‘have sex’ you don’t want to have, or have been forced to have, is just what you have to do for boys to like you, or for your boyfriend to love you. The rate of intimate partner violence is now higher in teen relationships than it is in adult relationships (1 in 3 girls experience IPV, NSPCC, Bristol University) and 16-19 year old girls are now the most at risk group of experiencing IPV (Home office). A survey that came out last year found that 46% of young men think that if a woman changes her mind during penetrative sex and he carries on, then it isn’t rape; nearly half thought that if the woman was too drunk to know what was going on then it wasn’t rape, and an astonishing 23% thought that even if a woman said no, it wasn’t rape (http://bit.ly/bSnP1L).

What this snapshot of information shows us is that young people today are often very confused about what meaningful consent is.

Which brings me back to this week’s judgement.

Simply put, it doesn’t matter if the 12-year old girls said they wanted to have sex, or were sexually experienced (although this matters for a different reason). The law is clear on this. A 12 year old girl is legally unable to give meaningful consent to penetrative sex and other sexual activity.

This is not to deny that young people have a sexuality and have sexual feelings. Of course they do and it is important to state this so as not to get my feminist position confused with a right wing ‘childhood innocence’ position (as illustrated by the Bailey Review) that denies young people’s very natural sexuality and sexual curiousity. However, there does have to be a cut-off point when we talk about meaningful consent and 13 years old seems a perfectly sensible one, for all the reasons mentioned above regarding physical and emotional maturity. After all, when you’re 12 you may think you know it all, but you don’t.

Judge Moses’ ruling that the girls wanted to have sex should not matter when it comes to recognising that these girls were victims of rape because statutory rape laws mean that legally they cannot give consent.

The Judge went on to say:

‘if you have casual sex with someone you don't know, you run the risk of having sex with someone who is underage.'

As far as I am concerned, this simply isn’t good enough. Part of the reason we have statutory rape law is because there is a responsibility we have as adults to make sure the person we are having sex with is actually an adult. I know it sounds obvious, but apparently it is worth making this clear. I also find it incredibly difficult to believe that a 12-year old girl could really look so adult that a grown man, who I am assuming has had sex with an adult woman, would not stop and question whether the girl was really as old as she says she is.

When we look at previous and current reporting of this case, I believe we can see that meaningful consent was not really given. The girls texted the men saying they wanted to meet up to have sex. Of course, saying you want to have sex in a text is not the same to consenting to it once you are in the situation. Let’s please remember that a person can withdraw consent at any point (during intercourse included) and if the person s/he having sex with does not stop, then it is rape. A girl can say in a text that she wants to have sex, and then not actually want to go through with it once it all starts happening and becomes real. The Mail reported in March:

‘The other girl was more reluctant and was raped by just one player’

and:

‘She said one of the males kept asking her for sex. She was initially reluctant but eventually gave in to his persistence’

I dealt with why this reporting is problematic in March so won’t go over old ground here, but I strongly feel that verbal coercion and pressure to have sex cannot result in meaningfully consensual sex, as we understand consent. The fact that one of the girls became upset when engaged in a sex act with one of the men also clearly demonstrates this (I should point out that the Mail reports that the man stopped when it was clear she was upset).

The whole tone of this case, from the initial Daily Mail article where commenters expressed sympathy for the ‘lads’, and where the girls were accused of being ’Lolitas’; to the Judge’s words and the decision to release the men from jail, has been one that paints the girls as the baddies, and the men as poor, deceived, remorseful ‘lads’. Is it so hard to understand that the girls are the victims here? Not the men, the adult men, but the children who were gang raped. Take the headline of the latter Mail article:
‘Judge frees six footballers accused of raping two 12-year-old girls in a park’
That isn’t what happened! The men weren’t accused of raping the girls, they were charged, found guilty and convicted of gang rape. By framing it as an accusation, the Mail are able to imply that the men weren’t really guilty, it was just an accusation and it’s the girl’s fault anyway. This is sickening.

One of the judge’s most problematic statements was of course his decision to reduce the sentence because the girl ‘was more sexually experienced than the men’.

There are multiple reasons why this is seriously fucked up, but I will deal with only two of them here.

Number one: a woman’s sexual history has no bearing on a rape case. It doesn’t matter if a girl or woman has slept with a hundred and twenty-six men, and 98 women, rape is rape. A girl’s or woman’s sexual history has absolutely zero bearing on the case. Of course, this may seem obvious, but a 2005 Amnesty International survey on UK attitudes into rape found that 8% (1 in 12) of people believe that if a woman has had multiple sexual partners, then she is partly to blame if she is raped. It’s our old friend, the angel/whore dichotomy and the myth of the perfect victim. The Judge is engaging in classic victim-blaming behaviour. He is implying that she is ‘not an innocent girl’ (as was famously said about the child Polanski raped) and therefore has to take responsibility. He is saying that she was more sexually experienced than the men, implying that she was therefore in control of the situation. I find it terrifying that in 2011 a Judge could do this. A woman’s sexual history is no longer considered to be admissible evidence in a rape case and the defence are not allowed to bring it up in court, precisely because it doesn’t matter. So how has this been allowed to happen here?

Number two: if a 12 year old girl is more ‘sexually experienced’ than a group of 18-21 year old men, then the question we should be asking is not whether she is therefore to blame, but why does a child have so much sexual experience? Because this would suggest that she has already been a victim of statutory rape, or of sexual abuse or assault. Again, I don’t want to deny that young people have sexual feelings that they may want to explore, or sexual curiousity. But there are some serious unanswered questions here. And it is simply not good enough for the Judge to say that she was sexually experienced, without questioning this, and then go on to use this as a reason to excuse the men’s actions.

It feels to me that this is the second case this week that has tried to re-write what we mean when we talk about consent. The first was Assange’s appeal hearing, where the defence lawyer said:

‘AA felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom … She did not articulate this. Instead she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration … AA tried several times to reach for a condom, which Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without using a condom. AA says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly.’

The defence also tried to explain how, despite being asleep, and therefore unable to consent, AA actually did consent to sex with Assange:

‘They fell asleep and she woke up by his penetrating her. She immediately asked if he was wearing anything. He answered: "You." She said: "You better not have HIV." He said: "Of course not." She may have been upset, but she clearly consented to its [the sexual encounter's] continuation and that is a central consideration.’

The lawyer for Sweden’s response was:

“they did not freely consent without coercion" but agreed to sex because of physical force, or consented "already having been trapped into a position where they had no choice, and they submitted to Mr Assange's attentions".”

Consent, meaningful consent, doesn’t exist if you don’t have a free choice. It is meaningless if you are coerced verbally, or physically, or pressured into sex that you don’t want to have but don’t feel you have the words to say no, or are penetrated when you are asleep or unconscious. Statutory rape means that you cannot consent if you the law considers you to be emotionally and physically a child. And yet, Assange’s defence, and Judge Moses, are throwing this truth away. They are claiming that consent can be given in your sleep, that physical force doesn’t matter, that a child can meaningfully consent to group sex because she is already sexually experienced and had lied about her age. What does this mean? What does this mean for how we talk about rape, how we understand consent?

I’ll finish with this point. Judge Moses called for the change of sentence in part for all I’ve mentioned above, but in part because ‘the men and their families had suffered as a result of their jail terms when it had been their own 'frank confessions' that landed them in court.’ He also cites that they believed the girls to be older.

There’s a lesson here. Anyone out there who rapes a child, but who then can find a way that makes it look like the child was to blame has nothing to worry about. Just admit it frankly, show a bit of remorse and easy. You’ll be out of jail in less than a year.

Links:

Isytosy to Mail article re men’s release: http://istyosty.com/tmp/cache/4f4908822e93be680e09c1f8e5691789c8f31beb.html

Isytosy to Mail article re men’s conviction: http://istyosty.com/tmp/cache/47d755f5402233a50ae3ee745c5c3d8e597d6003.html

Guardian links to Assange appeal hearing: http://www.guardian.co.uk/media/blog/2011/jul/13/julian-assange-extradition-appeal-hearing-day-two-live-coverage
http://www.guardian.co.uk/media/2011/jul/12/julian-assange-extradition-live-coverage

Childline: 0800 1111
Bristol Rape Crisis: www.bristolrapecrisis.org.uk
http://www.rapecrisis.org.uk/centres.php

6 comments:

Matarij said...

This a an interesting post and I completely agree with you about the issue of consent. It seems to me that the Judge in the 12 year old girls case has actually broken the law - if a 12 year old cannot consent but he has let the men out because he said they did, can this not be challenged? if it can, how can it be challenged? Letters to where? Does anyone know? Because I would be happy to write and question this decision.

sian and crooked rib said...

I think thats a really good idea, perhaps if we wrote to the shadow justice minister? I say shadow as the actual justice minister is ken Clarke who doesn't have a great record on understanding statutory rape...

sian and crooked rib said...

Important to note tho he didn't overturn the conviction, he reduced the sentence to a suspended one.

JENNIFER DREW said...

Well this makes a nonsense of 'consent' because feminists have produced evidence for eons now that women and girls supposedly exist in a constant state of 'consenting to men penetrating them sexually.'

It also makes a nonsense of legislation making it a criminal offence for a male to engage in penetrative sexual activity with a female child who is under the age of 16. In reality girls who are aged 13+ are presumed in law to be 'consenting to any male sexually penetrating them' unless said girl/women can prove by providing male independent witnesses that she did not 'consent.' Note too the law regarding rape and male sexual violence was written by men for the protection of men not from the perspective of women's and girls' experiences of male sexual violence. So this is why rape continues to be so narrowly defined from the male perspective and why the myth girls are all 'Lolitas' persists. Reality is there are innumerable males of all ages who believe it is their innate right to have sexual access to any female because men have this right and women do not have any sexual rights - apart from being men's disposable sexual service stations.

In law there is a presumption that any child under the age of 13 is incapable of 'consenting to any male penetrating/subjecting her to sexual activity.' That is why sexually predatory males commonly target girls who are aged 13 because this gives the male rapist(s) the legal right to claim 'but she consented.' The definition of presumption means that a predatory male cannot claim 'but she consented' if the female victim is under the age of 13 but this is precisely what Moses is claiming.

Judge Moses believes these two 12 year old girls did 'consent' despite the law categorically stating any child under the age of 13 is presumed to be incapable of 'consenting.'

So Judge Moses is giving all males the green light to rape any female child no matter how young she is because she is either 'sexually experienced (aka a male has subjected her to previous sexual violence and that is why she is supposedly sexually experienced according to male centric logic) or she has 'consented' to male sexually penetrating her body.

In other words male sexual violence against female children does not exist because all female children are constantly 'consenting/agreeing to male(s) penetrating them sexually/subjecting them to sexual violence.

This is the reality of living in a male supremacist society and also a rape culture.

Would Moses have made the same claim if it was two boys aged 12 who had contacted older males and said 'we want to meet up and have sex?' I think not because male sexual autonomy and male sexual rights over their bodies are embedded in male-centric law but women have yet to be recognised and accorded their human rights.

Sarah Fogg said...

I think it's possible to write to the attorney general and contest this as an unduly lenient sentence, but there's a 28 day limit so if the appeal was on July 13th we'll have to be quick.

I'd also mention that while it's true that mistaken age and consent aren't admissable as defenses, they are acceptable reasons for mitigating the sentence under law, so we'll do better to argue that the sentence was already mitigated enough.

I think maybe the most persuasive reasons would be that the men had good reason to doubt the girl's age claim (Facebook isn't a reliable source after all) and that the longer sentence was more in the public interest because otherwise (as you said) the message is 'it's fine to rape children as long as you claim they lied to you'. Also the precedent case involves a man in a LONG relationship with a 12-year-old who broke down completely when he found out her real age, whereas this is 6 men passing girls between them like bottles of gin, which suggests their age-checking was less than rigorous.

cagewisdom said...

But the age of consent in this country is 16 not >12, right?

Since rape is any sexual penetration without consent then the 16-year-old with the willing 15-year-old partner that Clark mentioned is a rapist as a 15-year-old is under the age of consent?

For me some instances of statutory rape provide the only compelling argument for the idea that some rapes are more severe or horrific than others because of the lack of close-in-age exemptions in many places or higher ages of consent such as 17, 18 or even 21.

I don't necessarily think that an 18-year-old Californian who commits statutory rape against a willing and enthusiastic 17-year-old should be placed in the same category of evil as the Delhi bus rapists, even though both remain crimes of rape.