Whither the punitive state? Whither go we?

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The final chapter of Roger Lancaster’s Sex Panic and the Punitive State, a book lauded by many heretics, is titled “Whither the Punitive State?”

Frustratingly, it doesn’t really address its own question. While it would be unrealistic to expect firm predictions, or a rousing action plan (“Sex offenders of the world unite: you have nothing to lose but your tags!”) all we get is a lame – because also unrealistic – list of “pointers for a sounder public discourse”. What it lacks is any sense of agency: good things would happen if his suggestions were adopted, but there no indication of who is ever going to do so. It is as though Lancaster had been sitting at his desk thinking “Wouldn’t it be great if everyone thought like me?”

But they don’t! Many of his readers, to be sure, may think like him and will benefit from his penetrating analysis of our woeful times, but we are left with little sense of engagement in making better things happen. Perhaps the closest we get is this:

“Concerted efforts by scholars, public intellectuals, journalists, and others could begin to make tabloid culture less respectable.”

But who is to do the concerting?

The political landscape might change if, say, the increasingly huge expense of incarcerating ever more sex offenders becomes unsustainable; in that eventuality, economic facts will have been the driving force towards a new discourse, not the conscious efforts of Lancaster or his readers. But concluding that history is just the working out of blind forces beyond our control might have seemed too bleak a note on which to conclude his book.

Nevertheless, it is one of several difficult considerations we must face unflinchingly if we are to “keep it real” as heretics. Another is whether the existence of a powerful state is necessarily a bad thing.

Marx, Engels and Lenin all asked not so much “Whither the state?” as “Wither the state?”

Friedrich Engels was the first to articulate the idea (which he attributed to Marx) that the state in a socialist society would wither away: the propertied classes needed coercively enforced laws to protect their unfair advantage; once the war against such injustice was won, the state would atrophy from lack of any purpose. But famously this vague “withering” thing, magicking the state away with a wishy-washy wave of Marxism’s rhetorical wand, never happened, either in the Soviet Union or in any other avowedly Marxist society: on the contrary, the state under Stalin, Mao and other Communist leaders grew ever more totalitarian and oppressive without even being efficient.

Likewise, we heretics have our own radicals who quite rightly oppose both “sex panics” and “the punitive state” but fail to propose plausible alternatives.

Recently, for instance, I unexpectedly found myself in a debate with the generally excellent Ben Capel at Inquisition 21st Century. At one time I was somewhat contemptuously dismissive of “unscientific” psychoanalysis grounded in the Freudian tradition. Ben put me right, alerting me to the radically humane potential of such therapy as compared with the supposedly more scientific CBT, which is used in coercive and degrading ways in penal settings.

So I value Ben’s thoughts highly and was pleased when Brian Rothery, editor of Inquisition 21, invited me to respond earlier this month to an article by Ben titled “Cruel and unusual punishment”. He had written that parents, as well as MAPs, sometimes find themselves subjected to unjust treatment at the hands of the state, suffering “harassment from social workers to the point where they are driven to mental breakdown or flight”, then seeing their children taken from them into state custody.

The article was part of an initiative called “The Rallying Point”, designed “to bring together isolated and fragmented groups” to fight back against the exercise of power by a state perceived as heartless and arrogant, blundering and bureaucratic.

I like the idea of rallying together with others who suffer injustice, but nevertheless found myself uneasy over the uncompromising anti-statism. Yes, I thought, social workers can sometimes be excessively interventionist. But should it be ignored that children are murdered at the rate of around one every 10 days in the UK at the hands of their parents, sometimes following unspeakable neglect and cruelty? I think not. What we do not hear so much about, and perhaps we should, are the cases where social workers intervene successfully and children are found better homes with loving adoptive parents.

Ben was unmoved when I made this point, insisting that the state should “withdraw and leave its citizens unmolested” until a whole bunch of tough conditions had been met, such as “until cops and social workers are required to have deep and enduring insight into their own irrational drives and sadistic tendencies”.

But, I asked, would the citizenry be left happily “unmolested”? Or would life be nasty, brutish and short? The Hobbesian nightmare of violent anarchy in the absence of a strong state is no mere imagining, I said, but well grounded in man’s truly savage history. The challenge is how to keep the baby (the rule of law) while throwing out the bathwater (unjust laws and unjust law enforcement). Note that my “savage” assessment relates to our history: prehistoric times are another matter, and I will be coming to those below.

I suggested that human rights law, a recent development, is a beginning.

Children’s rights, too, as I have argued here before, are only sustainable in a context of enforceable law backed by state power. And, believe it or not, those rights are being successfully used in Britain right now as a bulwark against intrusive police inquiries into the sex lives of young people.

How? Through Gillick Competence.

And here’s the context: the big, bad state in full panic mode has resulted in police forces around the country being tasked to hunt down teenagers exploited through so-called “grooming”. Publicity following a report last year that had claimed 1,400 victims in just one town, Rotherham, put pressure on the police and other official agencies to reveal the “true” scale of abuse elsewhere – which in practice meant intruding into the intimate behaviour of many youngsters who do not regard themselves as victims at all.

Gillick Competence, as I discovered obliquely from a BBC radio report, is protecting these youngsters. The Gillick principle, enshrined in a House of Lords ruling, acknowledges the competence of many young people under 16 to make important decisions in their life, including, implicitly, the decision to have an active sex life. This ruling, made in 1986, enables them to get advice on contraception and other sexual matters independently of their parents. That is an important reason why, as the BBC reported, police forces asking their intrusive questions found they encountered difficulty in getting answers from other public bodies, notably the National Health Service (NHS). The NHS is important in this regard because children are likely to be seen by healthcare staff, such as their local doctor, or school nurse, if they are sexually active and need contraception advice or have related medical needs. Thanks to the Gillick ruling, these staffs have been able to rebuff police enquiries in the name of patient confidentiality.

Thus a legal ruling, backed by the force of the state’s laws, is here seen in support of children and against the police. What this tells us is that reliance on a narrative of the oppressive state crushing the individual is hopelessly simplistic.

As for the ignorance and malevolence of police, social workers, etc., it is easy to reject the state that employs them. But then what? Ben talked about the “spontaneous cultivation of informal networks of trust and solidarity between people” as an alternative to state power.

Umm, really? Like a modern love relationship, say, which is a spontaneous coming together of two people who love each other and set up house together? But what happens if they fall out? Who gets the kids? What if one partner is murderously jealous after a betrayal? In the absence of law, it’s every man (and woman and child) for themselves and devil take the weakest.

And so the debate went on. Readers can decide for themselves who “won”. I like to think my logic was strong but persuasion comes mainly through the heart not the head and Ben definitely had a better story to tell in that regard.

In another debate, though, this time with Nick Devin of the Virtuous Pedophiles on the Sexnet forum, the roles were reversed. Nick was characteristically dour, dull and “realistic”, while I was the “romantic” rebel. In an earlier exchange, I had blasted him as being part of the problem, not the solution. He snapped back at my “fatuous” efforts, saying I spend far too much time blogging to “like-minded people” who collectively wring our hands over the unreasonableness of the world at large and accomplish nothing. “Occasionally,” he said “you speak to the press and invite blowback which leads to more derision and hate.”

You can read the full exchange here. Part of my response addressed fundamental aims:

At heart I am a “make love not war” type. I was never a drop-out or a hippie. I am too driven for that, rather than “laid back”. But my vision sort of harks back to the 1970s and invites us to think how we could take the most promising elements of those times forward while ditching the bad, especially the gender inequality and male chauvinism. Having just finished reading Douglas P. Fry’s wonderful recent book, War, Peace & Human Nature: The Convergence of Evolutionary and Cultural Views (O.U.P., 2013), I am persuaded that the deep prehistory of humankind was not Hobbesian as Steven Pinker and other popular writers would have us believe, and that our future as a species will more and more depend on cooperative strategies rather than the intense competition that has prevailed from the agricultural era onwards. This shift away from extraordinary and often deadly intra-species competition, which arose initially in response to relatively recent Malthusian resource-pressure crises not evidenced in the EEA [environment of evolutionary adaptedness], will be far more compatible with gentler and less rule-bound erotic styles: more bonobo than chimp, if you will. I would argue this as a feminist vision bearing in mind that the erotic governance of bonobo society depends fundamentally on strong female alliances capable of holding males in check.

I admitted, though, that I have little idea of how to plan politically for the achievement of any such exotic utopia – or zootopia! So did I have more rationally defensible grounds for swimming against the tide of public opinion? Something more rooted in the here and now? I continued:

Looking first at the social ills we face in society, there is an urgency to many problems which appears not to concern Nick, or he regards them as a matter for “experts”, people above his pay grade. He wants to help paedophiles deal with the strain of their sexual repression – the hopelessness, the depression, the suicidality – but seems wholly blinkered as regards the social context of their lives. As a result, his remedies are like trying to cure a cancer with a band aid. He ignores, for instance, that the sexually so-called “moral” cultures are the most disastrously violent on earth, as we see from Islamist extremism and kick-ass, gun-toting, America, where sexually repressive, moralistic beliefs are instilled from childhood.

My approach at least engages with discussion of this social context rather than focusing narrowly on “adjusting” the “abnormal” individual to the procrustean bed of a sick society – an enterprise doomed to contribute to the sickness not alleviate it.

Can it be any accident, I ask myself, that all the desperate, at-their-wits-end people turn up at Nick’s door, looking for help he cannot give, whereas the bright, cheerful, upbeat, full-of-ideas folk come to my parties and have a ball…

My blogging for a constituency of “the like-minded” as Nick claimed, is certainly no big deal in terms of what the wider world thinks. Within that constituency, though, something significant does take place… Heretic TOC has a therapeutic function. Sure works for me: despite all the hammering I’ve had in terms of wrecked career, prison terms, missing out on family life, …vilification and sometimes physical attack, you won’t find me depressed or suicidal these days, or drinking too much…

… we are not afraid to critique society vigorously and engage with the media on unapologetic terms. Usually they ignore us; but to dismiss the exercise on that basis as a waste of time and energy is to miss its massive value to us. I fight, therefore I am. To resist is to be alive and to be me… not just the meek, compliant, person our oppressors want us to be.

Back to Roger Lancaster. I started by slagging him off for his lack of answers, or rather his failure to project his own big questions into the future with any conviction. I find Fry’s vision more interesting, even though, bizarre as it will seem to anti-statists, he holds up the European Union as an example of the way forward. He accurately notes that the EU, much derided these days as a corrupt bureaucratic monster, was founded soon after the Second World War in order to secure lasting peace through trade and prosperity.

But for the most part it has worked. It has delivered a peaceful life, backed by relatively efficient governance and the rule of law, for hundreds of millions. Has it resulted in the acceptance of child sexuality and freedom for adult-child sexual relations? No. Is it heading, like national governments, towards risk-averse child “protection” and entrenching a victim culture? Yes. Does the expansion of supra-national institutions like the EU threaten a world monoculture, potentially culminating in the tyranny of the “moral” majority across the globe? Yes.

Does this dystopian vision terrify me? Sure it does. What I share with Fry, though, is the perception that focusing on strategies of human cooperation – strategies developed in our prehistory, as he demonstrates, and now extended into modern statecraft – offer the best long-term hope for a rational, peaceful, future in which loving intimacy for all may be allowed to thrive.

Love and peace, brothers and sisters, love and peace!

An open letter to Frank Furedi

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Many heretics, including myself, have been impressed by the online magazine Spiked on account of its vociferous support for free speech, distaste for state oppression, and its robust backing of civil rights, including for paedophiles.

So when one of its leading contributors, sociologist Frank Furedi, recently joined the media chorus of those attacking paedophilia, the virulent hostility of his diatribe came as a shocking disappointment. The context was an article, “What PIE and the NSPCC have in common”, which was fine up to a point. Its central theme was actually a rather interesting argument in defence of parents against the concept of “children’s rights”. Bizarrely – but, as I say, to interesting effect, Furedi presented the Paedophile Information Exchange (PIE) back in the 1970s and the National Society for the Prevention of Cruelty to Children (NSPCC) as improbable ideological allies. Both organisations, he said, claimed to speak on behalf of children but neither was as benignly disposed or as well placed to secure their best interests as parents.

My reaction was to fire off a counterblast. I submitted an article to Spiked that focused on defending children’s rights – not the right to be protected from various ills, real or imaginary, which is the NSPCC’s stock in trade, but the right to exercise real autonomy and to experience real freedom. Editor Brendan O’Neill emailed me on 25 March to say he was travelling in Europe and Australia and “I will be in touch very soon, I promise”. That sounded, well, promising, but over two weeks have passed since then and despite me sending a reminder I haven’t heard from him again.

So I have decided to answer Furedi here instead, in what amounts to an open letter. The text is a slightly edited version of my original draft article for Spiked.

WHY CHILDREN REALLY DO NEED RIGHTS

As a champion of parents over the years against “experts”, and the insolent intrusions of a busybody state, Frank Furedi is to be admired. He is right to castigate the NSPCC, too, for going far beyond its legitimate brief.

But when he says children are not moral agents, and on that basis attacks the concept of children’s rights, he is just plain wrong. Children become moral agents during childhood, not at its end; and even before that stage they may have non-trivial wishes and interests that require independent representation through robust rights-based action. Proper rights, that is: rights to real liberty of personal choice, not just protection from harm.

To begin with moral agency, has Furedi never heard of Gillick competence? In 1986 the House of Lords rightly accepted that “the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity”. The highest court in the land in the case of Gillick v. West Norfolk & Wisbech Area Health Authority ruled that those under 16 could consent to medical treatment as long as they had sufficient understanding and intelligence to appreciate what was proposed and to express their own wishes. The context was the child’s right to advice on contraception for sexually active youngsters, a right which, were it more widely known and supported through sex education, would do more to bring down Britain’s high rate of teenage pregnancy than ineffectual attempts to suppress youthful sexuality.

For present purposes, though, the salient feature of the Gillick ruling is not the sexual aspect but rather the judgement’s recognition of an important reality: adult competences do not suddenly begin at an arbitrary age of majority; they grow over time. Good parents know this and allow their children to “spread their wings” as they grow older, and even take off: they understand that the occasional crash landing is a possibility and can be a valuable learning experience. It is all part of an apprenticeship in life.

Like Furedi, I believe that in general no one is better placed than parents to make judgements as to what their own children are ready for; no one knows them so well, nor will anyone else be more strongly disposed to secure their best interests. I have never been hostile to parents, either when I was Chair of the much traduced Paedophile Information Exchange (PIE) long ago, or since. At the risk of setting off a fresh spate of tabloid excitement, I can honestly say some of my best friends have been parents.

That does not mean, though, that I would defend particular family structures to the last ditch, especially the all-too-explosive nuclear family, forged in relatively recent historical times not out of high purpose and dignity – an Englishman’s home is his castle, and all that – but from the grim necessity for a mobile labour force, detached from wider family and community, as the Industrial Revolution took hold.

Indeed, the tensions inside the nuclear family, and its frequent breakdown, constitute a fair proportion of the need for children to have rights. Parents do not all have their children’s best interests at heart. Step-parents, especially, who now make up such a substantial proportion of the whole, have much to answer for. The “wicked” step-parent is no myth. Frequently they resent their newly acquired brood; their hatred may even be murderous. Stepchildren are 60 times more likely to be killed than genetically related offspring [Daly & Wilson, 1994]. Not that this lets biological parents off the hook: taking parents as a whole, the latest figures show they kill on average over one child per fortnight in the UK, often in the context of a relationship breaking up, when one of the adult partners (usually a father) murders his children to spite his former partner [Office for National Statistics, 2013].

It is an ugly reality, so grim we cannot bear to face it; which is probably why these horrible cases tend to be dismissed in a paragraph or two in the media and described as a domestic “tragedy”, rather than in the more floridly anathematising terms (“evil”, “vile”, etc.) reserved for even the most mild and non-coerced paedophilic encounters. I recall one case somewhere in the West Country a couple of decades ago in which the father impaled the decapitated heads of his three children on spikes, leaving them for his ex to see. Even that spectacularly ghastly case disappeared from the news after a day or two. The vanishingly rare murder of a child in a sexual context, by contrast, is kept alive for a decade or more, such is the public’s need to project its own darkest feelings onto a monstrous Other.

Of course, the criminal law applies in the case of murder. Children do not need any rights in this regard beyond the human right to life. But there are many circumstances in which distinct rights for children would help enormously, both as regards invoking Gillick competence and, for children who are not yet competent to assert their own just claims, rights which can nevertheless be enforced in law on their behalf. These rights should take account of their wishes, not just their (adult defined) “best interests”. This, too, already has some standing in law. The 1989 UN Convention on the Rights of the Child acknowledged the right of children to be heard. This principle was incorporated into the Children Act of the same year, which said that while the children’s welfare should be paramount, courts should take into account “the ascertainable wishes and feelings of the child concerned”.

This formulation was far too wishy washy: wishes can be heard, but may still be ignored. The move towards a more effective measure is inhibited by confusion. The law will be deficient as long as we remain in thrall to the classic, albeit weak, argument that rights imply responsibilities, and that young children, before they become Gillick competent, cannot have truly enforceable rights because they are incapable of discharging the responsibilities that go with them. But as philosophers, including, most famously, John Rawls, have acknowledged, this is misconceived. As human rights lawyer Paul Sieghart put it:

In all legal theory and practice, rights and duties are symmetrical. It is a popular fallacy to believe that this symmetry applies within the same individual: that if I have a right, I must also have a correlative duty. This is not so: if I have a right, someone else must have a correlative duty; if I have a duty, someone else must have a corresponding right [Sieghert, 1985].

Children “in care”, may have significant rights claims against a range of professionals who act in loco parentis as teachers, etc. Having said that, the family is the most obvious locus of children’s claims, just as Furedi asserts. This is because, famously, most abuse, whether in terms of outright neglect and cruelty, or unwanted sexual attention, takes place in the home. This is a robustly quantified reality, not a feminist myth: in the most authoritative study to date, regression analysis indicates that dysfunctional family background is nine times as predictive of adult psychological harm as “child sexual abuse” (CSA) [Rind et al., 1998]. Had it been possible to separate non-coercive so-called CSA in the figures from coercive molestation and rape, the ratio would probably have risen dramatically, to infinity, because CSA thus defined would emerge as, on average, not psychologically harmful at all.

As for what distinct children’s rights might be needed, probably the most compelling cases are those concerning the right of children (1) to make medical decisions on their own behalf, especially when the issue of life and death is engaged; (2) to decide on their own custody in the event of parental separation and divorce; (3) to “divorce parents in the event of incompatibility. In all three areas considerable progress has been made in this century: we are not talking about a dead 1970s concept.

In the United States, for instance, it is relatively routine now for older children to have access to the law and to divorce a parent in the event of serious incompatibility, as for instance in the case of a gay teenager subjected to constant disparagement by a disappointed and unsympathetic father. It happens. It’s serious. These kids die by their own hand way disproportionately to their peers when they cannot find a supportive environment. As for medical decisions, doctors are moving towards the view that even quite young children can make rational and (given professional advice) informed decisions in difficult cases, such as whether or not to accept dangerous kill-or-cure surgery, or whether they wish to accept therapy inevitably committing themselves to years of pain and distress. And who could doubt that parents who are Jehovah’s Witnesses act against their children’s best interests when they refuse to sanction blood transfusions for a child in an emergency? This cries out for a child’s right, if they wish, to override their parents’ views.

The case for children’s sexual rights is a more complex matter, so I’ll close with a brief response to Furedi’s flaying of PIE’s “self-interested” stance. I look forward to him now denouncing his own self-interested lack of credibility: he campaigns for the rights of parents rather than children. Well, he would, wouldn’t he: he’s a parent!

Seriously, Frank, this essentially ad hominem way of shutting us up is a cheap shot, and unworthy of you. It makes you look like the politicians and judges who have been in such a hurry lately to publicly renounce their previous support for the basic civil rights of paedophiles: with their careers under immediate threat they appear to have panicked. One reason this has happened in such a big way, incidentally, is the failure of Liberty to defend liberty. The former National Council for Civil Liberties (NCCL) did a better job. Spiked editor Brendan O’Neill is to be congratulated for his staunch and principled recent defence of the NCCL’s former affiliation with PIE.

Daly, M & Wilson, M; “Some differential attributes of lethal assaults on small children by stepfathers versus genetic fathers”, Ethology & Sociobiology, Vol 15(4), Jul 1994, 207-217.

Office for National Statistics (2013); Focus on: violent crime and sexual offences, 2011/12 http://www.ons.gov.uk/ons/dcp171778_298904.pdf

Rind, B, Tromovitch P Bauserman R (1998); “A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples”. Psychological Bulletin 124 (1): 22–53.

Sieghert, P; The Lawful Rights of Mankind, OUP, 1985, p.94

What’s healthy about the selfie

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Back in August, in Cameron’s crusade and the ‘sexting’ generation, Heretic TOC noted the British prime minister’s triple-pronged attack on internet pornography, inevitably underpinned by the supposed need to protect “innocent” children from exposure to it, as though they had no independent interest of their own – a point deeply undermined, it may be recalled, by an NSPCC report showing that sexting now plays a big part in children’s lives.

Sexting, indeed, is clearly exciting a lot of grown-ups, too, or rather inciting them to a discursive frenzy, not all of it expressing the dominant moral panic narrative. One fascinating departure from the mainstream appeared in the September issue of the sociological journal Sexualities, by Brian Simpson, a specialist in children and the law who has a particular interest in the regulation of cyberspace and social media. In his article, “Challenging childhood, challenging children: Children’s rights and sexting” Simpson does something deeply unfashionable: he doesn’t merely mention children’s rights in the title, he actually takes the concept seriously.

His 10,000-word piece examines all the usual rhetoric, whether centred on the need to protect children from cyberbullying, concerns over sexuality being essentially private, and anxiety that the young are getting out of control – with its unspoken fear that self-interested patriarchal control over female bodies (girls’ virginity and reproduction) is under threat. He also considers the part that legal interventions against sexting have played, citing American cases in which youngsters have been taken to court, under laws supposedly passed to prevent harm coming to them. The effect, ironically, has been to see them punished by being condemned as pornographers and placed on a sex offender register, giving them a criminal record likely to blight their lives for decades. In order to “save” them, the courts thus harm them, deeply and lastingly.

What the mainstream discourse constantly fails to do, says Simpson, even in formal studies, whether quantitative (how much sexting is going on) or qualitative (what sexting actually entails), is to examine values. It is just assumed that sexting is bad, and focuses the debate on how to suppress it – an aim which generally extends to all other manifestations of youthful sexuality too. Where he takes the debate forward is not only through invoking children’s rights, a concept which peaked in public debate as long ago as the late 1970s, but also in identifying the new technology of the internet age, especially the camera phone, as transformative. Young people as media makers inhabit a techno-culture, “a world where camera phones are well embedded within everyday life and are used to constitute identity”, says Simpson, citing with his own emphasis words from another recent study (Chalfen 2013). So as part of this scene the selfie, it seems, including the sexy selfie, has a role in generating self itself.

Bollocks? Maybe. Or tits. But at the very least there is food for thought here.

Simpson, as a legal expert, understands the importance of children’s rights – although their development and enforcement have been painfully slow – but also sees children, especially teenagers, creating interesting new realities through their sexting conduct. While it is commonplace now, he says, to state that the internet has blurred the public–private divide, “one could say that sexting is making us have a discussion about the boundaries of what is public and what is private. In other words the act of sexting has a social benefit in that it pushes our boundaries.”

Social benefit? Wow! That looks radical. I think he could be right when we consider how the concept of personal privacy in recent years has been used in order to push naked bodies out of public space, with the effect of making mere nudity seem toxically dangerous and obscene. It can hardly have escaped the attention of most heretics here, certainly not the male ones in Britain, that in the interests of privacy more and more gents’ public toilets are fitted these days with dividers that prevent any view of the “member” at the next urinal. Not that I am interested in the musclemen’s mighty monsters in the changing rooms and “conveniences” at my gym club, although convivial joshing with complete strangers in the pub loos (“Hello, mate, they tell me this is where all the big nobs hang out!”) used to be one of the pleasanter minor civilities of life here. Now the blokes tend to be nervous about being thought gay, or looked at by someone who might be: adults now often choose to pee in the WC rather than at a urinal, as well as boys who surely do so following “safety” instruction.  Likewise the formerly communal showers in sports clubs now tend to have individual cubicles, and schools do likewise. The message for kids, of course, is that they must not show their bodies to others or be seen by anyone else, whether staff members or classmates: what is ostensibly done to protect their privacy serves mainly to intensify sexual taboos. Perhaps the present teenage sexting generation will come to see all this covering and hiding as a neurotic absurdity.

I have no idea whether Simpson has such issues in mind, but in relation to the defiantly let-it-all-hang-out growth of teen sexting in the teeth of adults’ cover-up culture, he continues:

Children have developed within this exhibitionistic culture…Albury and Crawford found some young people who actually described their sexting in…positive terms as part of their intimate relationships. In this sense sexting is a truly subversive activity that not only recasts sexual citizenship and identity but also reinforces new paradigms of transparency and openness.

Many young people report sexting as part of flirting, seeking affirmation, testing their attractiveness and so on, which is all about establishing their identity. While this does not mean such use of technology is [not] fraught with risks and sits within a context of gender expectations in society, there is also the importance of the child’s right to have an identity, express her or himself and to play.  Such rights are all contained within, for example, the United Nations Convention on the Rights of the Child. Of course, as with sexting generally, the right to play is often romanticised and articulated in terms of the innocence of the child in the playground. But this right also connects with risk taking, the pushing of boundaries and identity formation. The Charter for Children’s Play, for example, provides in its introduction that: “Play allows children to experience and encounter boundaries, learning to assess and manage risk in their lives; both physical and social”.

Now this really is radical, hinting as it does that real children, i.e. those who have yet to reach their teens, children who play, should be allowed to manage at least a limited amount of risk in their lives instead of being swaddled in a stifling cocoon of eternal infancy.

Law reform to decriminalise consensual sexting between children has been discussed, Simpson says. But reform going any further, if it were to challenge the view that sexting is inherently inappropriate, would undermine adult authority more generally over children, across the range of health and welfare issues that affect them. Actually, he says such law reform will undermine adult authority, not would, as though this is more than just a pipe dream. His present post is with the University of New England, Australia, where he is an associate professor. Perhaps the Australian scene gives him expectations for imminent change that I do not detect in Britain or elsewhere. If so, let’s hope he is right.

In the meantime, I will close by drawing heretics’ attention to what has actually happened to children’s rights in Britain in the decades since the burgeoning of the modern concept around forty years ago. To be brief: not much. There is a wonderful timeline on the development of young people’s rights in the UK on Wikipedia. It is an impressively enormous compilation, starting in the Middle Ages, with more and more entries for each century, the short 21st century already getting almost as many entries as the entire 20th, as though things are getting better and better at an accelerating rate. If only! It is a woefully misleading impression, made worse because the plethora of entries disguises the fact that many of them are not about children’s rights at all: mostly they comprise a riotous mishmash of child welfare and protection issues, rather than rights that can be exercised by children themselves. The latter are the only true rights: rights enforceable by children in ways that are capable, when necessary, of overriding adult authority, even that of parents.

Looking through this long list across the entries for the last forty years, I see one truly great leap forward, in 1985, and two considerably more limited triumphs. The great leap was the establishment of Gillick competence, which I had occasion to mention last month in The heinous crime of truth-telling. The timeline entry puts it thus: the Gillick ruling “lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity; except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.”

As for the two lesser gains, these were the Summerhill judgement (2000), and a ruling on biometric information (2012). I’ll leave you to look them up on the timeline, where you can also browse at your leisure and ponder the vast children’s rights work that remains to be done.

 

Albury,  K.  &  Crawford,  K.,  Sexting,  consent  and  young  people’s  ethics:  Beyond Megan’s Story. Continuum: Journal of Media & Cultural Studies 26(3): 463–473 (2012)

Chalfen R., ‘It’s only a picture’: Sexting, ‘smutty’ snapshots and felony charges. Visual Studies 24(3): 258–268 (2013)

Simpson, B., Challenging childhood, challenging children: Children’s rights and sexting, Sexualities 16(5/6) 690–709 (2013)

The heinous crime of truth-telling

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Two men awaiting sentence in Britain’s latest child sex scandal face an exceptionally steep fall from grace. Unlike the stars whose celebrity sparkle has been so abruptly snuffed out in the last twelve months, following the torrent of allegations about the late Jimmy Savile, this pair have made their name not as mere entertainers but as pillars of the establishment and icons of probity.

They are a judge and a public prosecutor. The crime in which they conspired together and which has already destroyed their high-flying careers and good name is apparently considered – judging by the outcry – the gravest sex crime that can be perpetrated in modern society: they have told the truth!

As readers in the UK will be aware, I refer to Crown Prosecution Service lawyer Robert Colover, QC, and His Honour (now Dishonour!) Judge Nigel Peters QC, who, jointly and severally, did knowingly, wilfully and most guiltily commit an act of truth-telling in Her Majesty’s Court at Snaresbrook last month, contrary to the Inappropriate Truths Act, which has an existence in the minds of child “protection” lobbyists as real and substantial as any government legislation.

Colover has been suspended from prosecuting sexual offence cases pending a review by the Crown Prosecution Service (CPS), while Judge Peters’ comments are being investigated by the Office for Judicial Complaints. The seriousness of the case could not have been made clearer than by Prime Minister David Cameron, no less, who made it his job (in a notable constitutional development!) to pronounce judgement in the case himself. Handing down his verdict, the Prime Minister told the press the CPS was ”absolutely right” to label Colover’s comments “inappropriate”.

What, then, was the nature of this terrible truth-telling? This is not for tender ears, but it was this: in a case in which 41-year-old Neil Wilson was given an eight-month suspended jail sentence for sexual activity with a child, the prosecutor and judge both “blamed the victim”. They made the well substantiated claim, which has not been publicly rebutted on factual grounds, that the girl who was the 13-year-old “victim” was a more than willing participant in the sexual acts.

The girl reportedly looked older than her actual age and told the man she was 16, which is the age of consent in the UK. Wilson met the schoolgirl when she asked him to buy cigarettes for her while she was playing truant. She stripped out of her school uniform and performed oral sex on him.

In accusatory language Heretic TOC would not support, but which appears to have been backed up by the facts of the case, prosecutor Colover, said in court, “The girl is predatory in all her actions and she is sexually experienced. There was sexual activity but it was not of Mr Wilson’s doing; you might say it was forced upon him despite being older and stronger than her.”

Well, quite! Resistance would have been useless! The poor man was practically raped! The judge in effect agreed, saying that “On these facts, the girl was predatory” and had been “egging on” the defendant. He said his lenient sentence took account of this.

With a prosecution like that, it may be thought, the fortunate Mr Wilson hardly needed a defence lawyer, and indeed none was quoted in any of the reports I saw. What prompted this rare (these days, at least) outbreak of commonsense in court is as obscure as it is welcome, but Heretic TOC needs only to congratulate the Judicial Dynamic Duo!

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Observant readers will notice a gap of several lines (and some stars) after the last paragraph. I am just attempting to prove to myself than I can still write a reasonably succinct blog when I really try. The one above, at well under 600 words, is far shorter than many of my recent efforts, which have ballooned to thrice this length, and more. However, like poor Mr Wilson faced with his striptease Lolita, I still find myself powerless to resist going a bit further than I perhaps should. I must therefore place myself at the mercy of you, dear readers, as my judge and jury in this matter, and hope you will be as forgiving as the two QCs at Snaresbrook Crown Court!

One announcement I feel confident you will forgive:  a few moments ago, as I write, I was informed over the airwaves by the BBC that the latest celebrity show trial in Britain has ended in a verdict of Not Guilty. Michael Le Vell, actor in Coronation Street, one of the nation’s longest-running and most popular TV soaps, has been cleared of a number of CSA charges, including rape. I haven’t followed the case closely but I think it was one of those “his word against hers” allegations, with no corroboration. If that is so, the jury were right to settle for nothing less than a proper standard of proof.

And another bit of good news you may not have caught yet: Richard Dawkins has been making waves by saying he and other children in his school peer group had been molested by a teacher but “I don’t think he did any of us lasting harm.” Peter Watt, director of child protection at the National Society for the Prevention of Cruelty to Children, immediately went public, in effect to contradict him, insisting on the usual dogma of life-long trauma. An advocate of “listening to the victim”, he clearly did not have ears for this one!

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And now a bonus blog, offering a few reflections on the case of the Judicial Dynamic Duo:

1)      The girl was 13, which in English law is significant in terms of consent. If a girl below this age consents to sexual intercourse, any man who has sex with her is liable to be charged with rape, because her consent counts for nothing. But if she is over 13 and under 16 he can only be charged with the lesser offence of “sexual activity with a child”. This is because her consent is in effect taken into account as real and it acts as a mitigating factor. This being the case, the public outrage over acknowledging the active role of the child in the Snaresbrook Crown Court case flies in the face of the law. The competence of many young people under 16 to make important decisions in their life is also acknowledged in English law in what is known as “Gillick competence”, following the case of Gillick v. West Norfolk & Wisbech Area Healthy Authority, 1986. The highest court in the land, the House of Lords, ruled that those under 16 could give consent to medical treatment as long as they had sufficient understanding and intelligence to appreciate what was proposed and to express their own wishes. Lord Scarman identified the principle that parental rights yield to the young person’s own right to make their own decisions if they have this “Gillick competence”. Significantly, the medical treatment in question can include advice on contraception for sexually active youngsters. As the admirable lawyer Barbara Hewson recently noted, “It has been Department of Health policy since the 1980s that underage teenagers choosing to be sexually active should receive contraceptive advice and treatment, in confidence. Sexual health charities working with young people have been telling policy makers, for years, that the existing age of consent law does not deter those underage teenagers who are sexually active. And the UK’s teen pregnancy rate is one of the highest in Western Europe. Yet if one of these ‘Gillick-competent’ teens is involved in a criminal case, these uncomfortable facts are conveniently forgotten.”

2)      Have there been precedents for the Judicial Dynamic Duo’s approach? Definitely, but it’s been a while. In 1993 an 18-year-old babysitter who tried to have intercourse with a nine-year-old girl after climbing in her bed was freed on probation by a judge who described the child as “no angel”. Judge Ian Starforth Hill was unsurprisingly castigated for this remark by the appeal court. Even more notorious from a protectionist point of view were the remarks of Judge Brian Gibbens in a case 10 years earlier, that of William Watson-Sweeney, who admitted having sexual intercourse with a seven-year-old girl. The judge was clearly sympathetic to the defendant, a former soldier, twice wounded in action, who had a drink problem. His Honour made an unfortunate remark to the effect that people could get themselves accidentally into all sorts of problems in life. This emerged as the following headline in The Times: “Sex with children could happen to anyone accidentally, judge says”. Imagine how that would go down today, especially regarding intercourse with such a young child! Not that the “intercourse” was more than minimal: the penis needs only to slightly enter the labia to qualify. The judge pointed out that the child’s virginity remained intact.

3)      An even more fascinating aspect of the Watson-Sweeney case was reported in an appendix to a Home Office report some years ago. The defendant pleaded not guilty to rape on the grounds that the child – aged seven remember – had consented to sexual intercourse with an understanding of what that entailed. Remarkably, the court accepted that the girl’s statement that “she knew what mummies and daddies did in bedrooms” was sufficient evidence of her understanding of the true nature of the situation. (From Setting the Boundaries: Reforming the law on sex offences, Vol. 2 Supporting Evidence page 136, Appendix D2, Literature Review of Research into the Law of Sexual Offences Against Children and Vulnerable People, by Caroline Keenan and Lee Maitland).

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