Child sex offences are more complicated than the Telegraph says they are

Update: The article referred to in this blogpost has been deleted from the Telegraph website, one hopes because the lawyers got nervous, and it doesn’t appear to have been preserved on the Internet Archive in time. Searching for the author’s name on the Telegraph website shows no evidence that the nasty bilge published under her byline ever existed. Oh well. Hopefully no harm was done.

This morning, the Telegraph published what is one of the most viscerally ideological and shamelessly misleading articles on the criminal law of England and Wales that I have ever read. Rebecca Reid’s piece, entitled “Adam Johnson sex claims: Anyone who sleeps with 15-year-olds is a rapist“, not only indicates that she is incorrect about the law on sexual assault and rape in this country, but that she did not even do the most basic of research on this most crucial of issues. What makes it worse is that instead of framing it as a feminist political argument on the meaning of the word ‘rape’, she actually invokes the law she has evidently never read.

But I’m getting ahead of myself. What does Reid say? I shall list her assertions first.

Everything goes wrong in the first paragraph:

Adam Johnson, a football player for England and Sunderland, has been arrested on suspicion of statutorily raping a fifteen-year-old girl.

The phrasing of the above is deliberate. He is not alleged to have had ‘underage sex’. He is alleged to have statutorily raped a girl who, aged fifteen, is legally unable to consent to sex.

And, as well all know, sex without consent is rape. Yet, many will refer to this alleged crime as ‘underage sex’.

Why? Because it doesn’t have the same connotations as rape. Underage sex with someone a few months away from being the age of consent is far from ideal. It’s frowned upon and it’s something best avoided (being against the law and all).

But it doesn’t have the visceral properties of the word rape. It doesn’t carry the same weight of expectation. In fact it’s a much more palatable way to describe the actions of a person who people are unwilling to see in an unfavourable light.

And at the end:

Men who have sex with fifteen year old girls are having sex with children. Men who have sex without consent are rapists. It’s a harsh, simple truth.

This is the extent of her foray into legal argument. The rest is discussion of what people think about rape victims, and that’s perfectly fine and I shan’t criticize it here. The problem is that almost every word in her assertions about the criminal law of England and Wales is wrong.

For a start, there is no such thing as “statutory rape” in this country, and nor is there any such thing as an “age of consent”, at least not as Rebecca Reid appears to understand it. Having sex with a 15-year-old does not constitute rape, unless the 15-year-old is not consenting. The law is not that blunt. All cases relating to a lack of a when the victim is aged 13 or older are dealt with under sections 1–4 of the Sexual Offences Act 2003, just like offences against adults; here, consent does play a role. If the victim is consenting and they are aged 13 or older, the specific child sex offences of sections 9–15 enter into play, none of which constitute rape.

What is crucial to recognize are the following points:

  1. In English law, having sex with someone aged between 13 and 16 is not automatically rape. It is entirely possible for a putative victim to consent to sex when they are aged 15. The offences of which the other party can be guilty are very specifically defined, carrying names like “sexual activity with a child”. Crucially, the statute never uses the language of rape to define these offences.
  2. All of these specific child sex offences offer the defendant a way out: if he reasonably believed that the child was aged 16 or older, he is not guilty of an offence (see, for instance, s.9(1)(c)(i) of the SOA 2003).
  3. The only stage at which neither the child’s consent nor a reasonable belief in them being aged 16 or older are engaged is when the victim is younger than 13. At that stage, as sections 5–8 make extremely clear, the questions of consent and reasonable belief simply never arise: the sexual activity with the child is illegal regardless of the victim’s and defendant’s respective states of mind.

Indeed, this represented a serious problem for the judiciary when the House of Lords considered the case of R v. G [2008] UKHL 37, where a 15-year-old boy was convicted of the rape (note the specific language) of a 12-year-old girl. The girl in question had, it was clear, pretended she was 16 (though the Appellate Committee drew no conclusions on whether this was realistic or not): what the defendant objected to was being convicted of a crime that carried the word ‘rape’ without having the victim’s purported age and apparent consent even considered by the court. In the end, the clear words of the Sexual Offences Act 2003 won out, and the conviction was upheld.

So these words really do matter, because being convicted of a crime like rape has social consequences far worse than similar crimes of different names (and, in my view, rightly so). What Rebecca Reid’s article does is import a specific feminist conception of the word ‘rape’, that may well be perfectly reasonable, and use it to give a false depiction of the current law of England and Wales. This is disgraceful. Had she even bothered to read the first few sections of the governing statute in this context, she would have been able to tell that her characterization of the law was wrong in almost every respect. I hope she writes a follow-up article that illustrates just how wrong she is.

When people talk about ‘statutory rape’ and the ‘age of consent’ they are generally extremely wrong about the criminal law of England and Wales: further muddying of the waters should not be tolerated by anyone who knows anything about this area. If you want to define anyone having sex with a 15-year-old as a rapist, you are welcome to try, but get it through Parliament first: don’t abuse these very specific terms for your own purposes.

A note of caution, by the way. As I said, these questions really matter. Characterizing 15-year-old girls as being unable to consent at law is such an incorrect statement of the law that it could be perceived as being highly prejudicial, or libellous: most cases of this nature turn on whether the defendant’s belief that the child was aged 16 or older was reasonable or not, and to imply that that question does not arise is to imply that the defendant is inescapably guilty. If I were Adam Johnson’s lawyers, I’d be taking extremely careful note of everything Rebecca Reid has said – and seeking to find out just how many people have read this shameful piece of pseudolegal trash.

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