Tuesday, 28 June 2011

Sex crime

This is partly a response to The Burd's new Herald blog article, in which she argues that we need zero tolerance on child abuse; but it's also a worried sigh at the general outpouring of commentary on the recent Craig Thomson sex offence conviction.

Taking that conviction first, the simple fact is that none of those passing public comment on this case knows the whole details. I have seen Thomson described as a "pervert" and a "paedo", and seen messages calling for him to be maimed and killed, and none of those commenting knows the full facts. Neither do I. The one person we know does, the judge at his trial, has passed sentence. Why on earth do folk think they know better?

Let me set that aside for now and tackle the more substantive point. Zero tolerance for sexual offences against minors sounds like nothing more than common sense. After all, who could possibly want to tolerate such behaviour? It's for precisely that reason that decent debate on the subject is thin on the ground, because anyone who puts his/her head above the parapet to question such an initiative is likely to be shot down with the same ferocity as that described above.

So let me throw this out here. I have committed sex crimes involving an underage partner, though I was never caught; and I have been the victim of sex crimes when underage, though I never reported it. Come braying mob, descend on me.

We all grow up protected by the age of consent law, which says that under a certain age we are unable to give informed consent to sex, and anyone who has sex with us (or tries to) can be prosecuted. The age of consent is currently 16, and as laws go it's probably the least worst option, since while it unnecessarily inhibits some who are mature enough to give informed consent before 16, it protects and gives clarity to many more.

But when I was growing up, the age of consent for the sex I wanted to have - with other men - was 21. At 19 years old, my first boyfriend and I were deemed underage. I have to confess now, however, that we did have sex. Quite a lot of it actually. And if we'd been reported and convicted, we could have gone to prison for it, never mind being fined.

Am I therefore a pervert? Twenty years ago my crime might well have met with such commentary, albeit not facilitated by the present medium. Twenty years before that and it would have been illegal at any age. Did the mobs bray in those days? You bet they did.

Sex crime is not a black and white issue. Even sex crime that involves a judgement that the victim is underage is not straightforward. There are degrees of seriousness, degrees of harm done, degrees of future threat posed. Had I been prosecuted and convicted I would today just be a sex offender, or even a child abuser - the nuances of the case, the similarity of ages, the fact that the law since changed, would not affect that.

Fast forward to the mid 1990s and we saw, in tandem with the age of consent reduction to 18, the introduction of the sex offenders register. A long accepted fact of life now, but did you know that when it was first introduced it would have seen people convicted of consenting acts, like S&M where both parties consented, forced to be registered alongside rapists and child molesters? It took long and difficult campaigning to cut through the tabloidese to change that.

Zero tolerance is an ethos which removes discretion from policing and from sentencing, which says if you do this sort of thing then you are this sort of person, without the possibility of mitigation, without differentiation of culpability. Even worse, it encourages and generates the sort of responses to crime that we have seen in the Craig Thomson case. It hides yet more of the fact from the public, leaving only the conviction. Good versus evil. Indeed it could be argued that this veiling of detail is part of its raison d'etre. We do not want to hear the details of the worst sorts of crimes. It suits us to say "bad man" and put every such case in a closed box.

All I know about the Thomson case is that a man was found guilty of a sexual offence and was fined and placed on the sex offenders' register. But it is desperately important to me to also know that the judge who sentenced him had the full facts at his disposal, could listen to the statements of the victims and take them into account, had the opportunity to adjust the punishment to fit the specifics of the crime, and could do so without any reference to the political or social winds blowing at the time.

Please let's keep that precious element of our justice system. Let our judges assess victim impact, future risk, mitigation and culpability. Let the punishment fit the crime, not the fear. Zero tolerance only empowers the braying mobs.


  1. What do you think about a 'close in age exemption' being added to the age of consent laws similar to what they have in Canada?

  2. I found myself in the same circumstances, almost 30 years ago. As a 17 year old male who was "going out with" an older male who was 25 at the time. He could have been prosecuted. I can just imagine what the headlines would have been if indeed that had happened. The fact that i had instigated the "relationship" would have got lost in the melee that would inevitably have followed.

    I agree with you, none of us know the facts of most "sexual cases", yet we seem to be very opinionated on what is right and what is wrong, based on the very limited information that we are given. That's why we have a justice system, in order to look at all the facts and come up with whatever punishment they feel is appropriate. The term "zero tolerance" suggests that the issue is very black and white, when in fact it's not.

    Well done for putting your head above the parapet and discussing something that has always been taboo.

  3. Thomas, I think close in age exemptions are in general a good idea, though I would add that in Scotland we have a set of guidance for police and procurators fiscal which amounts to something similar, and appears to work fairly effectively, so the impetus to add this to Scots Law may not be there. We also have the "position of trust" element of the law which I think is one of the better parts of current sex offences legislation. So while I agree that Canada's approach is good, I don't know how much it's needed here.

  4. Andrew, I really appreciate your reply and your support. I'm glad to know others share my view and my experience.

  5. Followed your comment back.

    This is rather a sensible article.

    I think at present for some offences we have lower penalties (or different offences) if eg one partner is 15 and the other 17 (instead of say 22).

    I think that one thing that we perhaps have wrong is a too hard-edged rule treating people as children up to 18, when in other areas we seek to

    I've seen numbers of reports of problems between a (say) nearly 16 and just over 16 experimenting causing one to end up with a criminal record and therefore being banned from caring professions through vetting and barring.

  6. Yes. I agree completely with you.

    First about the gay age of consent, and the fact that it was so far behind the heterosexual age of consent. It's hard to understand when you consider that so often heterosexual sex resulted in the birth of a child, a massive responsibility for 17 year olds.

    As people are sticking their heads above parapets here, I'd also say that I agree with headmasters or councils which have suggested that children should be more careful in their choice of attire.

    Teenage clothes are designed to be sexually attractive. If you dress under age "children" (even though they are not children) in sexually alluring clothes, they SHOULD be able to go about their business without being leered at or worse molested. But human nature doesn't work in a politically correct way.

    I just wish more parents would understand what seems to me to be obvious and logical and get down off the cross when their daughters are asked to lengthen their skirts, show a little less breast, and remember that they are 13.

    Finally, I think there is a little too much criticism of the law. OK, it's far from perfect, and like everything else "they" do, it should always be scrutinised and held to account, but as you say, Duncan, only the judge (and jury) have heard all the evidence.

    Maybe they actually ARE in a position to make judgements...and maybe we, who have only read a press report, are not.