Why don’t they call it rape?

A front page from a report by Save the Children, with an African girl or woman's head facing to the left and almost silhouetted. There is a red circle around the image and underneath it reads "Piccoli Schiavi Invisibili: Rapporto 2018 sui minori vittime di tratta e sfruttamento in Italia" (Little Invisible Slaves: 2018 report on child victims of trafficking and exploitation in Italy).Yesterday some of the papers reported that, according to a report by the charity Save the Children, child migrants mostly from sub-Saharan Africa were “being sexually exploited” or in earlier versions “selling sex” in order to finance their passage from Italy to France. According to the report (in Italian), titled Little Invisible Slaves: 2018 report on child victims of trafficking and exploitation in Italy, the minors were being asked to perform sex acts if they could not afford to pay drivers between €50 and €150 for a lift across the border. It also mentions that French police have been abusive to some of the children who cross the border, citing such acts as “detaining children as young as 12 in cells without food or water, cutting the soles off their shoes so they did not try to attempt the journey again, and stealing Sim cards from their mobile phones”. A lot of the Twitter responses consisted of complaints that the word ‘rape’ should have been used because the victims were children and thus should not be said to have “sold sex”. There are, in fact, good reasons why they do not, and should not.

It’s usually feminists (not just radical feminists, but often) who complain loudly when children (usually meaning people in their early teens or younger) are described as having sex; they will insist that it must be rape regardless of their apparent consent. In British law, since 2003, sex with someone aged 12 or younger is classed as rape, regardless of whether the older party claimed that they mistook them for someone older, a common defence when the younger (usually female) person involved is, say, 14 or 15. Many of them are under the mistaken impression that the threshold is in fact 13, which led to a lot of the wailing when the Guardian printed a letter from a man who said he had been falsely accused of rape when aged 15, after having consensual sex with a girl aged 13. Aged 13 to 15 is a window in which sex is not legal, but not rape, and having heard the debates at the time, the idea was that it would be overlooked where both parties were young and similar in age (as was the case here), but not when one party was much older. Perhaps the reasoning in setting the boundary at the 13th birthday was that a 12-year-old was much less likely to be genuinely mistaken for a 16-year-old than a 14-year-old would be. Having read the law, though, it does not appear to make any allowance for a similar age gap between a 12-year-old girl and a 14-year-old boy, if there is a prosecution.

Personally, I think making such laws accompanied by guidance towards tolerance in certain circumstances is a bad idea; the laws could be enforced if there is sensitivity as to whom the boy is and whom the girl is — if the girl’s father is powerful, for example, or the boy is from a despised minority (e.g. Travellers) and the girl is not. Sooner or later, someone in authority (possibly someone influenced by these feminists, or possibly a racist) will decide to prosecute in circumstances nobody has done for the many years this law has been active. If we don’t want people, especially children, prosecuted for something, it should be legal.

There is a commonly-understood definition of rape, which is when force or deception is used to gain sex from someone who has refused or would not otherwise have consented, or when one party does not know what is going on, usually because they are drunk (very drunk, not just a little bit drunk) or cognitively impaired. Some countries classify sex with someone below a legal age of consent as “statutory rape”, such as parts of the USA, others call it simply “sex with a minor” or something similar. A major newspaper publishes in many countries and reaches online to many others; it cannot afford to use a word like rape to describe something happening in another country which may not meet that country’s legal definition of rape. In this particular case, the legal consequences of doing so would likely have been negligible because the men involved were not rich or powerful and the moral difference would have been too little to make a viable libel case, but it would be dangerous to get into the habit of using emotive language because somebody eventually might sue.

On top of this, and the reason I do not believe newspapers should capitulate to demands to use emotive activist language, is that journalists should be reporting facts and separating facts from opinions. If we generally agree that certain newspapers using their front pages for propaganda which they present as news is a bad thing and has had negative consequences (such as the Brexit crisis), we need to understand that they should not echo our opinions as fact either and this includes using activist definitions, often based on misunderstandings of the law, rather than legal or commonly-understood ones. There are many other situations in which an act is seen by some as morally tantamount to a crime (e.g. murder) but is not legally the same thing or, indeed, factually the same thing. There are more appropriate ways of describing this phenomenon than saying the children are “selling sex”, but factual reporting does not mean calling something rape which might not be.

Admittedly, in this particular case this may be as tantamount to rape as it’s possible to get, and some incidences might actually be rape. But as a lot of the people clamouring to call all sex involving underage people ‘rape’ regardless of the facts would put away 15-year-old boys for having sex with their girl peers as well as men who exploit desperate refugee children, reporting this issue factually is very important.

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