Hittin' ya with a reply from the uber-smart Oxford lawyer downstairs:
(Original post by Anony mouse)
A 15-year-old boy had sexual intercourse with a 12-year-old girl. The boy was charged with rape of a person under 13. The victim admitted that she told the defendant that she was 15 years old and that the sexual intercourse was consensual.
The defendant appealed against his conviction for rape of a person under 13 years old on the basis that such a conviction contravened his Human Rights notably the presumption of innocence and the right to respect for private life.
His appeal was rejected.
Would you have convicted the boy of rape in this circumstance?
Without a doubt his conduct, according to the law, fell within the ambit of the offence of sexual activity with a child. This is necessary to protect children vulnerable to exploitation; hence the law suggests that children under 13 are not capable of giving valid consent.
Nevertheless, I disagree with the conviction for the offence of rape of a person under 13. This conviction attracts negative consequences, which are disproportionately severe to his culpability. The offence is designed for a much more serious situation.
Right, I’m sorry but this has to be cleared up, at least on legal terms.
The crime of rape of a child under 13 is defined under section 5 of the Sexual Offences Act 2003. The mental fault element is (in legal terms) strict liability as regards the child’s age. What this means is that it is irrelevant whether the accused knew her to be under 13, believed her to be under 13 or believed her to be 15; if he intentionally penetrates her he commits an offence. This is because the law regards such an act on a child under 13 as wrong regardless of the penetrator’s thoughts, beliefs or intentions, or indeed the child’s own motivations.
Secondly, the boy himself is 15, thus in the eyes of the law he cannot consent to sexual intercourse either. He therefore was aware that ANY sexual act he entered into would involve a breach of the law, with himself either victim or perpetrator depending on the circumstances.
To those who are suggesting that the girl herself should be culpable: the offence here is one which is aimed at protecting the victim, arguably from herself as much as others. Even though by lying about her age she may have encouraged the boy, she cannot be guilty of encouraging or assisting an offence, contrary to s.44 of the Serious Crime Act 2007, because section 51 provides that a victim cannot incite an offence which itself is there to protect the victim – in other words you cannot encourage an offence against yourself, see the Tyrell case for further information.
All of this said, the Crown Prosecution Service were issued with guidelines accompanying the Sexual Offences Act that state that in many cases an offence may be made out against an accused but they should not be tried for policy reasons. It is arguable that the instant case fits this category. Nevertheless, the boy has committed blameworthy conduct with the necessary intention to make out the offence. The only issue should be sentencing.