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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.

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In focusing on the famous few, we risk doing a disservice to all victims of child sexual abuse

There is a danger that we make it harder, not easier, for victims to come forward in future. 

Back in the 1970s when relations between journalists and police were somewhat different to today a simple ritual would be carried out around the country at various times throughout the week.

Reporters, eager for information for their regional newspaper, would take a trip to the local station and there would be met by a desk sergeant who would helpfully skim through details in the crime Incident Book.

Among the entries about petty thefts, burglaries and road accidents there would occasionally be a reference to an allegation of incest. And at this point the sergeant and journalist might well screw-up their faces, shake their heads and swiftly move on to the next log. The subject was basically taboo, seen as something ‘a bit mucky,’ not what was wanted in a family newspaper.

And that’s really the way things stayed until 1986 when ChildLine was set up by Dame Esther Rantzen in the wake of a BBC programme about child abuse. For the first time children felt able to speak out about being sexually assaulted by the very adults whose role in life was to protect them.

And for the first time the picture became clear about what incest really meant in many cases. It wasn’t simply a low level crime to be swept under the carpet in case it scratched people’s sensitivities. It frequently involved children being abused by members of their close family, repeatedly, over many years.

Slowly but surely as the years rolled on the NSPCC continued to press the message about the prevalence of child sexual abuse, while encouraging victims to come forward. During this time the corrosive effects of this most insidious crime have been painfully detailed by many of those whose lives have been derailed by it. And of course the details of the hundreds of opportunistic sexual assaults committed by Jimmy Savile have been indelibly branded onto the nation’s consciousness.

It’s been a long road - particularly for those who were raped or otherwise abused as children and are now well into their later years - to bring society around to accepting that this is not to be treated as a dark secret that we really don’t want to expose to daylight. Many of those who called our helpline during the early days of the Savile investigation had never told anyone about the traumatic events of their childhoods despite the fact they had reached retirement age.

So, having buried the taboo, we seem to be in danger of giving it the kiss of life with the way some cases of alleged abuse are now being perceived.

It’s quite right that all claims of sexual assault should be investigated, tested and, where there is a case, pursued through the judicial system. No one is above the law, whether a ‘celebrity’ or a lord.

But we seem to have lost a sense of perspective when it comes to these crimes with vast resources being allocated to a handful of cases while many thousands of reported incidents are virtually on hold.

The police should never have to apologise for investigating crimes and following leads. However, if allegations are false or cannot be substantiated they should say so. This would be a strength not a weakness.

It is, of course, difficult that in many of the high-profile cases of recent times the identities of those under investigation have not been officially released by the police but have come to light through other means. Yet we have to deal with the world as it is not as we wish it would be and once names are common knowledge the results of the investigations centring on them should be made public.

When it emerges that someone in the public eye is being investigated for non-recent child abuse it obviously stirs the interest of the media whose appetite can be insatiable. This puts pressure on the police who don’t want to repeat the mistakes of the past by allowing offenders to slip through their hands.  And so there is a danger, as has been seen in recent cases, that officers lack confidence in declaring there is a lack of evidence or the allegations are not true. 

The disproportionate weight of media attention given to say, Sir Edward Heath, as opposed to the Bradford grooming gang sentenced this week, shows there is a danger the pendulum is swinging too far the other way. This threatens the painstaking work invested in ensuring the public and our institutions recognise child abuse as a very real danger. 

Whilst high profile cases have helped the cause there is now a real risk that the all-encompassing focus on them does both victims of abuse and those advocating on their behalf a fundamental disservice.

As the public watches high -profile cases collapsing amidst a media fanfare genuine convictions made across the country week in week out go virtually unannounced. If this trend continues they may start to believe that child sexual abuse isn’t the prolific problem we know it to be.

So, while detectives peer into the mists of time, searching for long lost clues, we have to face the unpalatable possibility that offences being committed today will in turn become historical investigations because there is not the manpower to deal with them right now.

So, now the Goddard Inquiry is in full swing, taking evidence about allegations of child sex crimes involving ‘well known people’ as well as institutional abuse, how do we ensure we don’t fail today’s victims?

If they start to think their stories are going to be diminished by the continuing furore over how some senior public figures have been treated by the police they will stay silent. Therefore we have to continue to encourage them to come forward, to give them the confidence of knowing they will be listened to.

If we don’t we will find ourselves back in those incestuous days where people conspired to say and do nothing to prevent child abuse.

Peter Wanless is Chief Executive of the NSPCC.