Children are never culpable for their abuse
the face of it, legislation in Scotland, and the rest of the UK, provides
strong protection for children under 13 from rape.
Under the Sexual Offences (Scotland) Act 2009, children under 13 are deemed incapable of consenting to sex. There is no defence of mistake in age, making it what is called a strict liability crime. To prove rape of a young child (defined as under 13), the Crown need to prove that penile penetration took place, and that the penetration was by the accused. Unlike other rape cases where the complainer is over the age of 13, they do not need to prove lack of consent of the complainer or lack of reasonable belief in consent on the part of the accused. This is because children under the age of 13 are considered incapable of meaningfully consenting to a sexual relationship.
[Image by Ben Seidelmann from Flickr, reproduced under Creative Commons licence]
Recent events have, however, called into question just how meaningful this seemingly high level of protection really is. In a recent High Court case, Daniel Cieslak was granted an absolute discharge after pleading guilty to raping a 12 year old girl. In her sentencing statement, Lady Scott said she had taken into account the girl's willingness to go to a party and engage in "consensual sexual activity" in which she was an "active participant". Much of the rationale for the absolute discharge seemed to relate to the question of mistake in age. The sentencing statement spoke in some detail about the impact of the prosecution on the accused. Absent from the sentencing statement, however, was the voice of the girl in the case, and the impact on her. In a letter printed by the Sunday Mail, the girl spoke about how she suffers from anxiety and depression, and tried to kill herself after the rape, saying
"Before this happened, I was confident, happy, always had a smile on my face without trying. And now I fake a smile".
She said that she was passed out in the living room, after being given vodka, and remembers him picking her up, then wakened up in a bed.
was said that I consented but how can someone consent when they can't even
This isn't an isolated case. A recent freedom of information request revealed that the Criminal Injuries Compensation Board has refused payments to almost 700 child victims even if their attackers have been jailed. As reported in the media on 18th July ‘In evidence submitted to the Independent Child Sexual Abuse last year, Barnardo's said that CICA had responded to a claim from one of the children it supported by saying that "it considers consent as a question of fact, and this determines eligibility for compensation.” Rape Crisis Scotland have intervened in a similar case in Scotland, where CICA considered that a 12 year old had consented "in fact", despite the law being very clear that children under 13 are incapable of consenting.
These cases raise fundamental questions about our response to children who have been raped or sexually exploited. We must move away from notions of culpability and towards a society where the theoretical protection provided by the law becomes a reality.