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We live in a culture riddled with rape-supportive beliefs about consent

The comments by the judge in the case of Adam Hulin, who was last week convicted on two counts of sexual assault, demonstrate that the judiciary still seems to have enormous problems wrapping its head around the personhood of women and girls.

A woman holds a placard aloft during a Slutwalk march in Melbourne, Australia. Photo: Getty
A woman holds a placard aloft during a Slutwalk march in Melbourne, Australia. Photo: Getty

Last week, a sentence was passed at Guildford Crown Court on a 19-year-old man named Adam Hulin. He had pled guilty to two counts of sexual assault – the oral rape of a child under 13 and assault by penetration of a child under 13. His penalty, judged to be “the appropriate disposal” by George Lawson-Rogers QC, was 100 hours of community service, six hours of counselling and a victim surcharge of £60.

In handing down the sentence, the judge stressed that he was unable to “dismiss the contention that what happened was not by mutual consent,” noting that although “[r]ape is a very serious offence” it “can cover a great number of different circumstances.” The defendant, he went on, was “19 and there is much to be said in his favour. . . I certainly wouldn’t want to do anything which would prejudice his future career.”

The judge had apparently concluded that Hulin’s guilt lay only in a pesky legal technicality. According to local reports, the defence recast Hulin’s “crime” as nothing more than “what most people would ordinarily define as regular sexual activity,” which unfortunately just happened to involve a child. Were the complainant not “a couple of months shy of her 13th birthday,” Hulin would never have found himself in the dock. “Once upon a time it wouldn’t have been rape at all,” the judge reportedly agreed.

Such nostalgia for a long-lost age when children could be molested with impunity deserves a special kind of scorn. It alone raises a huge red flag about the judgment. And this impression is only amplified by the judge’s all-too-familiar fears of ruining a good man’s glowing prospects, and the deafening absence of any care about the damage to the future of the girl.

We hear this all the time, the howls about the Yewtree witch-hunts, each a stinging reminder that, for many, the reputation of a single man is too high a price to pay for a possible world in which tens of thousands of women are not consigned each year to spend their futures struggling with despair.

The lives of women are just not worth that much: this is what we hear in Lawson-Rogers’ words. And we are somehow then expected to trust his judgment that Hulin has committed a crime in nothing but name – and as such is deserving of such unusual clemency.  Thankfully, following a number of requests, the Attorney General announced on Monday that he will review the case.

Nonetheless, the most disturbing thing about this sentence is that a man so seemingly inclined to privilege the needs of men arrived at his ”appropriate disposal” because he bought, in its entirety, the defence’s version of Adam Hulin’s actions. This argued that there had been no violation of consent; by trying his luck with this particular girl, Hulin was just engaging in sexual activity ordinarily defined. And this is a monumental problem – one we must shout about if we are to have any hope of more women seeing justice. We live in a culture riddled with rape-supportive beliefs about consent. What “most people” think about “regular sexual activity” is bullshit.

As feminists have noted for a good long time, we inherited our understanding of sexual violence from a tradition which conceived it as a property crime – originally against the “owner” of the woman. This might seem old hat, but cast your eyes below the line on any discussion of rape, and pay attention to the metaphors: flaunted jewellery jostling with wallets and laptops left inadvisably in unlocked cars.

Rape is conceived as an act of theft, or sometimes, and more notably, as an act of accidental trespass. Woman are unconquered – virgin even – territory. They are fertile land abandoned by an owner who forgot to place a stonking DO NOT ENTER sign just where a hapless journeyman would see it. Under such extenuating circumstances, how on earth could he have known that he had crossed a line?

Women are not wallets, or computers. They are not neglected land, or uncharted territory. Rape is not theft, or trespass. It is an attack on the very centre of someone’s personhood, an act of annihilation which leaves victims with the hollow sense of having somehow survived their own murders. It functions by violently converting a person into a thing, and in that – not incidentally – it shares something with the thought of rape that understands it as a property crime. 

The difference between property and persons is passivity. Despite changes in the law, our culture still places women in a default position of consent. When allied to the presumption of innocence, and an adversarial system that places the burden of proof squarely on the prosecution, this means that establishing that a crime has been committed falls invariably on the woman, and her ability to show that she withdrew her consent, and signaled so explicitly, ideally with some sort of convenient corroborating evidence.

But what would happen if the judiciary took seriously the suggestion that women are people, and that consent is not something that people withdraw, but extend? How would our sexual lives transform if men were raised to understand that explaining why they didn’t know what they were doing was inadequate, and they would be required to give a compelling account of why they were absolutely certain that they did? What if it wasn’t all about victims saying no, but about the grounds on which defendants heard a yes?

Creating a culture of active consent will take time, and no doubt there will be comments from (mostly) men who think it a conceit of those who wish to install a coterie of bureaucrats inside their bedrooms. But this is so much rape-supporting whataboutery. Many men – the overwhelming majority of them in fact – manage to negotiate their entire lives without accidentally raping someone. Working out if the person you want to have sex with actively wants to have sex with you is not like solving Fermat’s last theorem – it just involves understanding that that person is a person, and has their own wants, and bothering to care about what they are.

As the comments by Hulin’s judge suggest, the judiciary still seems to have enormous problems wrapping its head around the personhood of women and girls. Keir Starmer, the former Director of Public Prosecutions, is presently considering a Victim’s Law to radically to revise a system which, he is well aware, is “hardly fit for purpose”.

Perhaps if the Victims’ Taskforce commits itself to transforming thoroughly how legal practitioners understand consent, we would start to see real change. And with it the slow depletion of some men’s confidence – and women’s well-founded fears – that inadvertent trespass will be met with nodding sympathy by those we entrust to execute the law.