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Rape-law reforms are poisoning relationships

A recent case in England highlighted the dangers of turning bad teenage sex into a criminal matter.

Helen Reece

Topics Politics

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Even those of us who have left our teens far behind may still remember the mixture of awkwardness and ambivalence that accompanied our first sexual experience. We all appreciate that ‘the first time’ is as likely to be filled with embarrassment as ecstasy. Now an unfortunate 16-year-old girl in Gloucestershire, England has been forced to add a criminal conviction to this potent cocktail.

A 14-year-old boy had sex with the then 15-year-old girl in his bedroom, with two of their friends present. About a week later, the girl’s mother took her to the police station to report this as rape. The incident was thoroughly investigated and the boy was arrested. But inconsistencies began to emerge in the girl’s account. For example, she had claimed that no one else was in the room at the time, leading her to be convicted of attempting to pervert the course of justice by making a false allegation of rape.

The harm that the involvement of the law has caused is particularly vivid in this instance, given that the girl and boy still live half a mile away from each other in a small village. According to the Guardian, the girl herself hardly ever goes out, dreading the taunts on the school bus, and her school grades have suffered. The boy still receives threats and abuse which make him fear for his safety, and even the other children who were in the room (one of whom gave evidence against the girl in court) have become more withdrawn. To say that this has caused a rift in a small community is an understatement.

Women’s rights campaigners have rightly condemned this prosecution. As one feminist blogger put it, the girl may have lied ‘as a reflection of her shame/embarrassment at the situation, of her emotional trauma and confusion, or any number of other things’. But what women’s rights advocates have failed to acknowledge is that the increasing number of prosecutions for false allegations of rape is the inevitable outcome of their own campaigns.

Women’s rights campaigners have contributed to the expansion of the meaning of rape. Over the past decade or so, rape-law reformers have campaigned to extend the definition of rape to cover a much wider range of sexual experiences where the woman is not ‘truly’ consenting, and this approach is now enshrined in section 74 of the Sexual Offences Act 2003, which defines consent as agreement by choice and having the freedom and capacity to make that choice.

There are related trends towards interpreting normal teenage sexual experience as abusive (as illustrated by the 2009 NSPCC survey, Partner exploitation and violence in teenage intimate relationships), and towards judging youthful sexual behaviour by standards suitable only for adults, as in the shocking case last year when 10- and 11-year-old boys were convicted of attempted rape. Finally, police have succumbed to campaigners’ pressure to treat every allegation of rape with the utmost seriousness, in a drive to bridge the gap between reported rapes and successful prosecutions, even though the rate of attrition is comparable to other serious offences.

The Gloucestershire case is right in the eye of this perfect storm. The girl’s account was that she didn’t want to have sex: she froze and whispered for the boy to stop, but was too scared to call out to her friends for help. This is just the sort of encounter which rape reformers would like to include within the law. Indeed, it is more than possible that the girl had been encouraged to believe that any sexual experience that she didn’t truly want was rape – maybe she had seen the many rape awareness posters conveying such a message. On another day in front of another judge, this story could just as easily have ended up with the boy convicted of rape.

Still, this was an unarmed 14-year-old boy who could easily have been overpowered by the girl and her friends, and there were no desperate circumstances overbearing the girl’s will in any other way, such as her having been drugged, or worn down by earlier threats. On any account, this sexual encounter was far from ideal, not least because it was illegal – the age of sexual consent in the UK is 16. But in a humane society, the girl’s story would have been greeted with a cup of tea and a sympathetic shoulder to cry on.

This humane response is not an option these days. As the detective sergeant handling the case said, ‘We take all rape allegations extremely seriously and thoroughly investigate any that are brought to our attention.’ He went on to highlight that the extreme seriousness with which this rape allegation had been treated had impacted very severely on the 14-year-old boy, so the girl needed to be prosecuted to redress the harm caused to him. Given that, for the law if not for radical feminists, there are still unwanted sexual encounters that fall outside the meaning of rape, treating all rape complaints seriously means treating all false allegations seriously.

This point rings home, tempting many to welcome this girl’s conviction, on the basis that ‘what’s sauce for the goose is sauce for the gander’. But even leaving aside the misery caused to the girl herself, the intervention of the law is further cranked up by convicting teenage girls for perverting the course of justice on top of convicting teenage boys for rape. The nightmare scenario is approaching where every rape complaint is seen as pointing to a prosecution, if possible for rape, and if that’s not possible, for a false allegation. Instead, we should save prosecutions for only the most heinous sexual crimes, and drag the law back out of teenagers’ messy sex lives.

It wasn’t always like this. I remember the day when one of my best friends burst into tears on the bus on the way to school, before revealing to me and another friend that one of our classmates ‘had tried to rape her’. A box of tissues later, it became clear that what had happened was that he had made a very direct pass at her, which she had responded to up to a point but felt awful about afterwards. We didn’t brand our classmate a rapist, but nor did we think that our friend was a liar. We understood that this was her way of telling us that she felt really rubbish about what had happened, particularly because it meant that she had been ‘unfaithful’ to her long-term boyfriend. It never occurred to any of us to involve teachers or parents, let alone the police. In due course, she split up with her boyfriend and went on to have a mutually satisfying, if fairly short-lived, relationship with our classmate. Not much chance of that for those two teenagers in Gloucestershire.

Helen Reece is a reader in law at the London School of Economics.

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Topics Politics

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