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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.

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.

Photo: Getty Images
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What's to be done about racial inequality?

David Cameron's words on equal opportunities are to be welcomed - now for some action, says Sunder Katwala.

David Cameron made the strongest, clearest and most high profile statement about ethnic inequalities and the need to tackle discrimination ever yet offered by a British Prime Minister in his leader’s speech to the Conservative Party conference in Manchester.
“Picture this. You’ve graduated with a good degree. You send out your CV far and wide. But you get rejection after rejection. What’s wrong? It’s not the qualifications or the previous experience. It’s just two words at the top: first name, surname. Do you know that in our country today: even if they have exactly the same qualifications, people with white-sounding names are nearly twice as likely to get call backs for jobs than people with ethnic-sounding names? … That, in 21st century Britain, is disgraceful. We can talk all we want about opportunity, but it’s meaningless unless people are really judged equally”, said Cameron.
While the proof of the pudding will be in the eating, this was a powerfully argued Prime Ministerial intervention – and a particularly well-timed one, for three reasons.

Firstly, the Prime Minister was able to root his case in an all-but-universally accepted appeal for equal opportunities. It will always prove more difficult in practice to put political energy and resources behind efforts to remedy discrimination against a minority of the population unless a convincing fairness case is made that values cherished across our whole society are at stake. Cameron’s argument, that any party which tells itself that it is the party of the ‘fair chance’ and ‘the equal shot’ must have a response when there is such clear evidence of discrimination, should prove persuasive to a Conservative Party that has not seen race inequalities as its natural territory. Cameron argued that the same principles should animate responses to discrimination when it comes to race, gender and social class. Put like that, wanting job interviews to be fair – by eradicating conscious and unconscious patterns of bias wherever possible – would strike most Britons as offering as clear a case of the values of fair play as wanting the best baker to win the Great British Bake-Off on television.
Secondly, Cameron’s intervention comes at a potential "tipping point" moment for fair opportunities across ethnic groups. Traditionally, ethnic discrimination has been discussed primarily through the lens of its impact on the most marginalised. Certainly, persistent gaps in the criminal justice system, mental health provision and unemployment rates remain stark for some minority groups. What has been less noticed is the emergence of a much more complex pattern of opportunity and disadvantage – not least as a consequence of significant ethnic minority progress.

Most strikingly of all, in educational outcomes, historic attainment gaps between ethnic minorities and their white British peers have disappeared over the last decade. In the aggregate, ethnic minorities get better GCSE results on average. Ethnic minority Britons are more likely, not less likely, to be university graduates than their fellow citizens. 

As a result of that progress, Cameron’s intervention comes at a moment of significant potential – but significant risk too. Britain’s ethnic minorities are the youngest and fastest-growing sections of British society. If that educational progress translates into economic success, it will make a significant contribution to the "Great British Take-Off" that the Prime Minister envisions. But if that does not happen, with educational convergence combined with current ‘ethnic penalties’ in employment and income persisting, then that potential could well curdle into frustration that the British promise of equal opportunities is not being kept.  Cameron also mirrored his own language in committing himself to both a ‘fight against extremism’ and a ‘fight against discrimination’: while those are distinct challenges and causes, actively pursuing both tracks simultaneously has the potential, at least, depolarise some debates about responses to extremism  - and so to help deepen the broad social coalitions we need for a more cohesive society too.

Thirdly, Cameron’s challenge could mark an important deepening in the political competition between the major parties on race issues. Many have been struck by the increase in political attention on the centre-right to race issues over the last five to ten years. The focus has been on the politics of representation. By increasing the number of non-white Conservative MPs from two to seventeen since 2005, Cameron has sent a powerful signal that Labour’s traditional claim to be ‘the party of ethnic minorities’ would now be contested. Cameron was again able to celebrate in Manchester several ways in which his Cabinet and Parliamentary benches demonstrate many successful journeys of migrant and minority integration in British society. That might perhaps help to ease the fears, about integration being impossible in an era of higher immigration, which the Home Secretary had articulated the previous day.

So symbolism can matter. But facial diversity is not enough. The politics of ethnic minority opportunity needs to be about more than visits to gurdwaras, diversity nights at the party conference fringes and unveiling statues of Mahatma Gandhi in Parliament Square. Jeremy Corbyn’s first speech as Labour leader did include one brief celebratory reference to Britain’s ethnic diversity – “as I travelled the country during the leadership campaign it was wonderful to see the diversity of all the people in our country” – and to Labour bringing in more black, Asian and ethnic minority members - but it did not include any substantial content on discrimination. Tim Farron acknowledged during his leadership campaign that the Liberal Democrats have struggled to get to the starting-line on race and diversity at all. The opposition parties too will no doubt now be challenged to match not just the Prime Minister’s rhetorical commitment to challenging inequalities but also to propose how it could be done in practice.

Non-white Britons expect substance, not just symbolism from all of the parties on race inequalites.  Survation’s large survey of ethnic minority voters for British Future showed the Conservatives winning more ethnic minority support than ever before – but just 29 per cent of non-white respondents were confident that the Conservatives are committed to treating people of every ethnic background equally, while 54 per cent said this of Labour. Respondents were twice as likely to say that the Conservatives needto do more to reach out – and the Prime Minister would seem to be committed to showing that he has got that message.  Moreover, there is evidence that ethnic inclusion could be important in broadening a party’s appeal to other younger, urban and more liberal white voters too – which is why it made sense for this issue to form part of a broader attempt by David Cameron to colonise the broad centre of British politics in his Manchester speech.

But the case for caution is that there has been limited policy attention to ethnic inequalities under the last two governments. Restaurateur Iqbal Wahhab decided to give up his role chairing an ethnic minority taskforce for successive governments, unconvinced there was a political commitment to do much more than convene a talking shop. Lib Dem equalities minister Lynne Featherstone did push the CV discrimination issue – but many Conservatives were sceptical. Cameron’s new commitment may face similar challenges from those whose instinct is to worry that more attention to discrimination or bias in the jobs market will mean more red tape for business.

Labour had a separate race inequalities manifesto in 2015, outside of its main election manifesto, while the Conservative manifesto did not contain significant commitments to racial inequality. The mid-campaign launch in Croydon of a series of race equality pledges showed an increasing awareness of the growing importance of ethnic minority votes - though the fact that they all involved aiming for increases of 20 per cent by 2020 gave them a slightly back-of-the-envelope feel. 

Prime Ministerial commitments have an important agenda-setting function. A generation ago the Stephen Lawrence case opened the eyes of middle England to racist violence and police failures, particularly through the Daily Mail’s persistent challenging of those injustices. A Conservative Prime Minister’s words could similarly make a big difference in the mainstreaming of the issue of inequalities of opportunity. What action should follow words? Between now and next year’s party conference season, that must will now be the test for this Conservative government – and for their political opponents too. 

Sunder Katwala is director of British Future and former general secretary of the Fabian Society.