PyroTyger's record of awesome

Sex with a minor (under 13) is statutory rape, a strict liability offence. This means that, unlike most criminal law, mens rea (”guilt of mind,” a knowledge of and responsibility for ones actions) is not a fundamental component of the crime. This is essentially the law's way of saying, "Protection of minors is more important than your liberty to act in good faith. It doesn't matter if you didn't know she was under-age - it's your responsibility to know. If you did the deed, we don't care how guilty you feel. Our collective responsibility to keep us off that slippery slope trumps your personal liberty not to take care." This is a good thing.

However, the girl in question was 13 at the time. That just puts the case into legal territory in which the act - sex with a minor - is still illegal, but is not statutory rape. There is a mens rea component necessary to bring conviction.

In the case of sex with a child over the age of 12, the court can only convict if can show that 

1) he had sex with a minor (which he did, and admits to), AND EITHER      2) she did not consent (making it rape, irrespective of her age), OR    3) he did not have good reason to believe she was 16 or over.

In the matter of 2), this is such a badly messed up part of UK case law and our criminal justice system that I wouldn't even know where to start, and have no intention of diving into it. Suffice to say that both the definition and the burden of proof for consent is BADLY skewed in favour of the accused, and it's the worst but by no means the only deeply ingrained problem in this whole field. Let's not even get into how the system handles taking and assessing evidence given by minors, especially when involving sex or abuse, and how the girl's testimony was largely discounted due to inconsistency, as if any of us could keep a sentence going straight at age 13. If I start on that, I'll get too angry to finish... 

What is relevant in this particular case, as the law currently stands, is that she gave clear, continuing consent, and as far as the law is concerned, that's that. "What can reasonably, morally be considered informed consent in a 13-year-old?" is a good and pertinent question, that unfortunately has no legal weight, if it can be shown that he reasonably believed her to be of age. Unlike a 12-yr-old, the fact that a 13-yr-old can’t legally give informed consent only signifies in his crime if he thought she was indeed a minor. Because mens rea.

Which brings us to the matter of 3). Did he have no good reason to disbelieve her majority? Put another way, would a reasonable man in his position have been quite sure that she was, as she said, 17 years old?

This is the sticking point for me. So she said she was 17. Let's charitably assume she was reasonably mature for her age and insisted she was a late-bloomer. Let's say, for the sake of argument, that she said everything she could to convince this rich, wealthy, powerful, eager man that she was what he needed her to be - someone who was just old enough to legally consent, but undeveloped enough to appear much younger... I wonder just how much effort he took to be sure of that? He met her on a sugar-daddy hookup site, and wouldn’t you know, she was exactly what he was looking for..! 

He's an intelligent and successful man. He was a government advisor, a dragon on Dragon's Den, a man who has made his considerable livelihood by seeing through people, beyond the facade, seeing what's really there, staking his reputation and business on it, and being right most of the time. A man who has seen and skewered more too-good-to-be-true offers than almost anyone alive, and who will want to see deeds, paperwork and projections before he'll make a decision on a fraction of his wealth.

Such a man was consistently hoodwinked, by a 13 year old girl to whom he was no doubt already promising the Earth, into believing what he so clearly wanted to be true? Did the doubt never enter his shrewd head? Because I think any reasonable man, even without his experience, would need to be pretty strongly convinced that a girl who looks 13 or even 15 was, in fact, 17 before even considering anything sexual. Just how strongly convinced do you think he was?

I guarantee, this will have been the hinging point of the case. Would a "reasonable man" (a legal term in deciding mens rea, in case you're sick of me using it) have believed a child's claim of being 17? I wouldn't have believed it of any 13-yr-old girl when I was 13. I'm pretty certain I've never served a 13-yr-old alcohol during my bartending days, and if I'd had any doubt I'd have obtained proof. Because it's the law. And you can be damned sure I'd want some seriously convincing proof before having sex with someone I met through a sugar-daddy website who looked anything less than a mature adult. But then, I'm not the one looking for opportunities to have BDSM sex with girls on the borderline of legal majority. (I'm in no position to kink-shame, but I'll explain later why I think the power-exchange thing is relevant.)

So the acquittal. It's important to remember that the jury is not in fact responsible for judging the accused. They are presented with facts, are told which are pertinent and which to ignore, and are then asked to make a decision about the truth of certain facts, which will lead to a simple legal outcome. It's likely they were instructed by the judge to the following tune: "Doug Richard is not on trial for having sex with an underage girl - a fact which he does not dispute. He is accused of the crime of Sexual Activity With A Child, a crime of which he is guilty if and only if it would have been reasonable for him to believe the victim’s claim that she was over the age of 16 at the time. It is for you to decide, having heard the evidence, if that was a reasonable assumption." 

And the jury took just four hours to decide that, yes, it's reasonable that he believed her. I think they're dead wrong, on the evidence of the man's presumable experience, insight and overt intent, but they were presented with a simple decision, and that was their choice.

You can be sure the defense made a big deal out of the fact that the site on which they met has some kind of big "Yes, I am over 18" tick-box on the sign-up form. And isn’t it astonishing that she was not invited to testify because  her interviews were “inconsistent with other evidence.” I wonder how consistent her story was to Doug when they were in contact? Her word is clear and strong enough to get him acquitted, but not good enough to be heard in court...

And that's that. Not guilty. He had sex with a 13 year old, but did not commit a crime. Not “wasn’t convicted,” you understand, but did not commit a crime. Had she been 12, it would have been one of the worst crimes we can imagine, no matter his diligence or ignorance. 

What stinks about this case isn't this case at all. The trial went largely as it should, legally - and THAT'S what stinks. Our law is a hot mess around sex, consent, knowledge and intent, but it really doesn't have to be. Why is it that we can acknowledge and enshrine in law that a child of 12 is so exempt from ideas of "informed consent" that there is no circumstance that will acquit you, but as soon as they turn 13, you only need to believe with all your heart in order for it to be legal? We have whole books of case-law precedent that clarify the fuzzy edges around so many tiny details, even going so far as to define the grey area of sex between people who closely straddle the age of consent, the age of legal majority, and so on. There is effectively a sliding scale - of burden of proof, of intent, of knowledge, of consent and ability to consent, and ultimately of criminality - that allows the courts to say, "this is wrong - but this is worse" and mete justice accordingly. 

Yet the difference here between another notch in the Yewtree and a man with a clean record, as far as I can see, is whether she was born a few days later or earlier, and whether he wanted it badly enough to disbelieve the obvious.

Should this not have been a case to set precedent? "At 12yrs 11 months, her consent and your knowledge of her age would be irrelevant to this case of what what would be rape. At 15yrs and 11 months, the court recognises you might be forgiven for believing this eager girl to be 16, though you are still guilty of some degree of negligence and will receive a light sentence and a record for sex crime. But at 13yrs, you should at least do your fucking homework and carry out some due diligence if you want the court to believe you actually gave a damn." 

This was not a man who gave a damn. Not until he was caught. 

Sadly, owing to the victim's advanced years of 13, this case ultimately came down to a matter of, "Did you think you were doing anything wrong?" Or more accurately, "How certain should the law expect you to be?" On that matter, I think the jury made a bad decision. Either way, a rich, powerful, grown man had sex with a child and was acquitted of criminal charges.

I'll close with the following observation: It's well known that a man who hangs around school gates in a loud car offering cigarettes to girls is looking for someone naive & curious enough to be fooled, and inexperienced & vulnerable enough to be easily dominated by somebody with no scruples. They do not care if what they hope to do is damaging, immoral or illegal - it's a risk-reward proposition. 

The older man who seeks out willing young girls on a website that caters to this, specifically to engage his "50 Shades of Grey fantasies," only distinguishes himself from that company by taking care to not be among them - by actually giving a damn, when he sees how young she looks, about whether he's in fact sexually dominating a minor or just role-playing a fantasy with a very convincing partner. When his fantasy presents itself, and he doesn't even stop to check the basics, how is he distinguishing himself from the predators? 

What separates the latter from the former is that he has a lot more money, a lot less time to hang around the school gates, and he's a lot more cautious about plausible deniability.