Sex, rape and exploitation: who determines the difference?

In rape in marriage, Hale yet again leads. Here, again, the 'no such crime' contention is located. Once more, Hale's mantra upon which courts are to rely, and wherein accused persons are to find their salvation:

[A] husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract.

This time, Hale relied on nothing but his own assertion, doubtless based in 'ownership' notions of marriage and 'coverture' – the principle that a wife was 'covered' by her husband so had no personality or identity in law. Thus a rape committed on 'no one' or on a person lacking identity is no crime at all.

Hale is said to be backed by Clarence v. Clarence – a more recent (1888) House of Lords authority which has, in any event, been entirely misrepresented. In 1977 (Scutt, Monash Law Review), analysis showed that the House of Lords did not assert rape in marriage to be 'no crime'. The majority of the nine Law Lords raised, in various ways, questions critical of the Hale doctrine or, at least, asserting doubt. Rape in marriage was not directly before them – the issue was venereal disease infection of a woman by her husband. Whether the sexual act was consensual did not arise – although it may have, for the couple before the court.

As for sexual crimes against children and young people, nineteenth century women's groups fought strongly for the age of consent to be raised from 12 years. This struggle has been (mis)represented as driven by puritan notions that 'sexual play' and indeed sexual relations as a whole were frowned upon by women demanding rights. This conforms to stereotypical charges today, where women standing up for women's liberation are so often decried as 'frustrated', oppositional to sex and sexuality, and – again – just plain old 'man haters'.

When women fought to increase the age of consent, it was because they recognised the vulnerability of children and young people, particularly girls. They knew that adults have immense sexual knowledge and power they can use to their advantage if imposing upon children or young people, whether by encouraging, inveigling, luring, attracting or forcing them into sexual relations beyond their capacity to initiate with intention, knowingly or at all.

So, is the law at fault? When the Women's Electoral Lobby (WEL) Draft Bill on Rape and Other Sexual Offences was published in a Criminal Law Revision Report in NSW in 1977, a principal plank of the measures in the Draft was that education of the judiciary into an understanding of the reforms should be mandatory. At the time, this was resisted. Some years on, judicial education – accepted long since in the US and more recently in the UK – became acceptable, at least to Attorneys-General and, gradually, more and more Judges. Yet more is needed: there is little point in introducing law reforms, if provisions for compulsory education are not contained within the legislation itself. Judges will not have been educated in the new law, but in the old. Similarly with lawyers working in the field: their training will have been under the 'old' law, not the reforms. Nor can the education be seen as enough, or acceptable, if it is simply a 'one-off' seminar or even a day's programme. Change and understanding of aims and perspectives does not come overnight. In any field such as this – where archaic notions unrelated to social conditions have held sway – addressing prejudice and stereotypical mind-sets requires ongoing training, education, discussion. Education cannot be confined to the courtroom, upon the principle that if sufficient cases come before the courts with argument presented in submissions and by observation, courts will come to comprehend the new laws, to ensure their effective operation. Victims/survivors and accused cannot be relegated to being an 'educational function'. The outcomes are too important; the rights of both must be honoured.

The idea that adults can be absolved from their own exploitative and selfish sexually predatory conduct upon the contention that a child has 'initiated' or 'invited' the conduct is unacceptable. It fails to grasp the reality of power relations – which ought to be obvious. It refuses to recognise the vulnerability of a child where a parent or stepparent carries not only age but also status-authority and, too often, gender authority. To say that a child or young person under the age of consent has 'agency' where confronted by an older person using adult ways of sexual persuasion is nonsense. In casting that responsibility upon a minor, the adult – who should be responsible for his own conduct – is absolved. Not only does it place blame and shame upon the child or young person. It does not help the accused man one iota: rather, it conveys to him that he did nothing wrong, that he did not engage in exploitation and abuse of his power. Having been once absolved, this provides no notice to him (or others) that he should treat children and young people as autonomous beings with the right not to be lured or encouraged into fulfilling his sexually predatory desires, but should be allowed to develop and grow in their own way, engaging in adult sexual activity when adults themselves. Education in this realm of understanding is required. In other words, adults have an obligation to respect children's sexuality. The courts must respect it, too.

As for language – amongst other euphemisms infusing this field, 'grooming' is salutary. The conduct which comes under this term – engaging with a child or young person in ways leading them to have an interest in an adult whose aim is predatory – is abuse in itself, and should be recognised thus. To engage in conduct with a child or young person that ultimately makes it appear (to those who wish to see it this way) as if the child or young person somehow had a hand in their own targeting is wrong. Rather than 'grooming', it is in and of itself sexually exploitative conduct. It needs to be placed squarely in the category of sexual assault: an assault upon the personhood of minors that is not only offensive to their development and wellbeing, but is to be classed by any judge, decision-maker or policy pundit as criminal.

Education is not a panacea. However, when sexual assault and predatory conduct are defined into 'sex', as if consensual, the conclusion cannot be avoided. Education of those interpreting and applying the law at all levels must be the order of the day.