Why this isn’t rape
Yesterday a teacher in Havant, Hampshire (a small town near the south coast of England) was jailed for 12 years for engaging in sexual relations with four girl pupils, ranging in age from 13 to 16. He was convicted of 24 counts of sexual activity with a child which in one case resulted in a girl becoming pregnant and then miscarrying; in between the incidents themselves and their coming to light, he had been promoted to assistant head teacher and head of safeguarding. The girls themselves did not report the incidents until they were adults; the police had interviewed two of them between 2010 and 2012 but the teacher, Sean Aldridge, had persuaded them to lie to the police. The case has resulted in a familiar flood of complaints that the media report these cases using phrases like affairs, sexual relations or just sex rather than what the complainers believe it is, which is rape. Why isn’t it?
The simple answer is that, when sexual contact occurs and one party is between 13 and 15, or 13 and 17 where the older party is in a position of trust (such as a teacher, as was the case here), the legal term is “sexual activity with a child”. The term rape is used only where someone was forcibly penetrated or a competent person had sex with a person so impaired as not to know what was going on or who could not agree. When one party is below age 13, this would be automatically charged as rape under the 2003 Sexual Offences Act, regardless of whether the older person knew the younger person’s age or not. I am guessing the reason is that, while a 14- or 15-year-old might be mistaken for a 16-year-old by someone a little bit older than 16, a 12-year-old could not be (although this defence has been used and in a case last year resulted in a man getting an absolute discharge). The same law introduced the higher age of consent where a teacher is involved; previously, the age of consent was 16 and so relations between teachers and sixth form pupils (or even fifth formers, in cases where they had been held back a year) were perfectly legal, while even in cases where both parties were underage and the boy was younger, the boy was committing a crime but the girl was not. The law was stuck in Victorian times and it was generally accepted that the situation had to change.
So, when the media uses phrases other than rape, they are reporting the story both factually and legally accurately. With the exception of cases where one party is under 13, British law has always used ‘rape’ to mean sex which is forced on someone, not where consent is legally invalid, because that is what rape has always meant in common parlance; the term has inherent connotations with violence. Many US jurisdictions use the term “statutory rape” to refer to such situations, but that is not the case here and never has been. The law recognises that under-16s have some degree of agency; the age of criminal responsibility, for example, is 10, not 16, although crimes other than murder committed by under-16s tend to be treated more leniently. If a 15-year-old could be sent to prison, even if he had been talked into the crime by an adult, it makes no sense that any sexual act involving them be assumed to be rape (especially by people who would also call it rape when a 15-year-old boy has sex with a 13-year-old girl).
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