This is our truth, tell us yours
This article in the Telegraph outraged many of us who read it.
The implication, that the teenage girl might be in some way accountable for the behaviour of older men was calculated to offend those who have worked to resist the idea that victims are accountable for the crimes of others.
The problem is, of course that English criminal law is hugely confused about ideas of accountability and culpability. It’s an issue that is obscured rather than revealed by sexual offences, so let’s find a non-sexual example.
Back in 1861,the authors of the Offences Against The Person Act carefully defined sections 18 and 20 to distinguish between the intention to inflict serious harm, and reckless actions that result in serious harm. The victim is invisible in the distinction, which is about the intention of the offender.
In the ensuing 150 years since the 1861 act, we’ve moved the victim closer and closer to the decision making process in assault cases. Victim Impact Statements have turned the eggshell skull principle into a central fact in the sentencing judgements in assault cases, moving the notion of the intent of the offender away from the centre of the case.
Want me to illustrate what I mean? Imagine Youth A, who lashes out at a man in the queue for a nightclub. The man suffers a cut to his head. Youth B, by contrast, lashes out at a man in the queue for a nightclub. The man falls and strikes his head on a kerb, suffering fatal injuries.
Who deserves the greater sentence? I would venture neither does. They’re both equally culpable, and should get equal sentences if you take the victim out of the picture.
Come back to our 13 year old female in Fife. God alone knows why she is behaving in the way she behaves. It doesn’t matter. If you solicit sexual activity from someone under age you’re no more or less guilty if the victim is naive or experienced.
Another analogy comes to mind. Threatening Jess Ennis-Hill with rape because of her opinions about Ched Evans is vile, and worthy of a conviction. Is it any less culpable to say, in a comment thread on the Daily Mail website, that Stuart Hall will get what’s coming to him in the showers in prison?
When we started to introduce victim impact statements in English law I never thought I would see the day when I would argue that they’re an obstacle to justice, but emphatically that is what they are now.