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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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This topic often comes back. Sometimes we manage to handle it well, other times we fight.
The age of consent has a wholly valid and important purpose. It prevents those who are over it from abusing those who are younger than it. By legal definition that is abuse.
We could base a discussion around http://iomfats.org/resources/ageofconsent.html
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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Guest
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On fire! |
Registered: March 2012
Messages: 2344
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Well, by legal definition it was illegal to engage in homosexual sex too, and not so long ago either... So I am not certain if it is a wholly valid criterion/an absolute criterion. Just becuase it is the law does not magically make it right, necessarily. Whther it IS right is a much more complicated issue, tho.
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I think a sliding scale is probably the best that could be achieved.
But what I actually truly believe is that it should in some way relate to the actual physical development of the younger party - sex with someone who is still prepubertal at fifteen or sixteen is, in my view, inherently abusive as their range of physical experience is insufficient to encompass "informed consent".
I freely admit that this is informed by my own experience, where my first (waking) orgasm was literally "at the hands of another" older person, in what I now regard as an abusive relationship (see a couple of threads in Feb of this year for details). Although I was 13/14 when this happened to me, there were boys in my class who went thorugh puberty rather later ... the last one of my yeargroup didn't hit it until aged 16.
"The ultimate weakness of violence is that it is a descending spiral, begetting the very thing it seeks to destroy. ... Returning violence for violence multiplies violence, adding deeper darkness to a night devoid of stars." Martin Luther King
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saben
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On fire! |
Registered: May 2003
Messages: 1537
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As it stands in Victoria the law is as follows:
Sex between two consenting adults (18+) is legal.
Sex between an adult and someone between 16-18 is legal, provided that the adult is not in a position of care (eg teacher, councellor, etc)
Sex with someone between the ages of 10 and 16 is legal, provided that the older party is no more than 2 years older than the younger party.
The penalties are stricter for intercourse than for "indecent acts" (which can only be taken to mean oral sex and mutual masturbation). The penalties are stricter for an adult in a position of care having sex with someone within the 10-16 age bracket. The penalties are also stricter again for sex with a <10 year old.
In Tasmania it is a similar system, however:
17 is the absolute age of consent.
15-16 year olds can consent to being with a partner up to 5 years older than them.
13-14 year olds can consent to being with a partner up to 3 years older than them.
12 year olds and younger cannot consent.
In Japan, on a national level, 13 is the age of consent. However many individual prefectures (states) do have laws stating that having sex with a <16 or <18 or even <20 (which is the age of majority in Japan) can be prosecuted, although I believe from my understanding, that it is seldom that such laws are enforced.
I understand the logic in a sliding scale and it is definitely better than an absolute system, however it implies that (as in the Tasmanian instance) 13 year olds ARE sexually active, but it also implies that any relationship between a 13 year old and a 17+ year old is by it's very nature abusive. The laws give rights to youth in that a youth is able to consent to sex, but aparently they are only able to consent to sex with people that fall within a certain age bracket. There ARE some teenagers that not only don't mind older partners, but some in fact prefer them. And the power disparity in such a relationship may not be as large as it seems.
I would question the assumption of the Victorian law that says 10 year olds are capable of being sexually active without it being abusive. Even if it is only legal for a 10 year old to be with a 12 year old at most I'd still say that the sexual maturity of a 10 year old when compared to a 12 year old is quite vast. I think from my personal experience 11 or 12 would be a better bottom-limit. But anyway they were just my thoughts and I'll probably be back to reply to the points others have made later.
Look at this tree. I cannot make it blossom when it suits me nor make it bear fruit before its time [...] No matter what you do, that seed will grow to be a peach tree. You may wish for an apple or an orange, but you will get a peach.
Master Oogway
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Readers might be interested in a link that gives the ages of consent around the world.
http://www.avert.org/aofconsent.htm
Hugs
N
I dream of boys with big bulges in their trousers,
Never of girls with big bulges in their blouses.
…and look forward to meeting you in Cóito.
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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... but as Timmy said, we've been through it all before!
Just a few thoughts, after reading Nigel's link:
Why, in purely philosophical terms, should there be an age of consent? I'd suggest that the logical answer can only be to protect those who by virtue of their age are open to exploitation which could cause them lasting harm.
I accept that the definition of 'harm' is to a considerable degree subjective, and is particularly susceptible to differing interpretatations in different belief systems. So it's not unreasonable that religious bodies should set their own standards - provided that those standards only apply when at least one of the parties is a practicing member of that religious group. On the other hand, it is surely wrong that in secular society those religious standards should be enforced - I'm thinking here of the Islamic countries with blanket prohibitions against same-sex relationships, which in terms of logic make about as much sense as a demand that every foreigner entering Israel should be summarily circumcised.
At a more basic level, having accepted the need to protect the vulnerable, the best the law can ever do is to protect the 'average majority'. OK, if your going to pick nits I accept that a majority cannot, by definition, be average in a diverse population; all I mean is that the law cannot possibly be tailored to individual circumstances. We know that humans reach puberty at fairly widely differing ages - and in any event I haven't seen any conclusive proof that sexual development is more than one of many factors in an individual's ability to make rational choices.
Consequently, I accept that, on occasion, children as young as eleven or twelve who have not reached puberty can desire and benefit from a relationship including sexual elements where the other partner is several years older. But it seems to me that the number of such children in very small in comparison with the number of children of that age for whom a sexual relationship with an older person would be a traumatic disaster - and the law must be geared to protect the majority, even if that infringes the liberty of the minority.
So where should we pitch the limit? Here in the UK it is, in most circumstances, 16. I think that's too simplistic; no-one progresses suddenly from childhood to adulthood on their sixteenth birthday. I find myself drawn to the Victoria model, with a tiered system based upon age difference. I don't altogether accept the suggestion that its age-steps go too low; if a twelve-year-old molests a ten-year-old, surely in the vast majority of cases the twelve-year-old needs help and guidance; he certainly doesn't need a criminal record.
In short, I take the view that children should be protected against older predators, and to achieve this a precocious minority will inevitably suffer restrictions upon their freedom; it's simply a price that must be paid in the interests of the common good. On the other hand, I think that it is totally wrong that children who are simply experimenting among themselves, as most normal kids do, regardless of sexual orientation, should ever be at risk of criminal prosecution - so the 'age-difference' relaxation needs to be geared to the age-range of normal pre-adolescent or adolescent groups.
So that's a fairly explicit point of view - does anyone agree or disagree?
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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I'm going to suggest perhaps an unusual reason for an age of consent.
Physics.
Well, Physics and mathematics.
It is a highly practical reason and nothing whatsoever to do with morals, ethics or anything else.
Put simply an adult male will both crush and tear a child of either gender if "allowed" free rein. The mass and the geometry militate against this being anything other than physically abusive.
Thus, ignoring totally the fact that women have sex with under age children, and that an adult is intellectually and physically more powerful than a child, there needs to be somethig to stop an adult molesting and damaging a child for simple personal gratification (I am not speaking about anything except physical effects here. Emotional effects are different and a valid topic too)
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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To be honest, Timmy, I think "physics" is probably the weakest argument for an age of consent. Of course adults tend to be bigger, but it's perfectly possible to have sex (depending on your definition of sex) with anyone without causing physical damage. Anyone who believes that it is all right to cause unwanted physical pain during sex deserves to be locked up and the key to be thrown away.
[Anyway, what do you mean by a "child"? A 14 year-old is often just as large as an adult. For that matter, is it wrong for a very tall man to have a small adult partner?]
It's a very thorny issue and, to be honest, I think only one that tends to preoccupy adults. If young teenagers want to have sex, they have sex (with each other). The system in the UK, while it isn't perfect, is useful -- the police will usually turn a blind eye to underage relationships where both parties are the same age. There is a legal limit of 16, and it may be that this is rather simplistic, but there are also all sorts of rape laws designed to protect those who are 16 and are not yet ready for sex. I fail to believe that it would not be possible for the law to come down like a ton of bricks on an older party who pressed himself (or herself) onto a 16 year-old.
I suppose the reason I can't really get myself worked up about this is that I myself was never really interested in sex at 14 or even 16, and I am barely even now. You don't get many militant 14 year-olds campaigning for their right to have sex with adults, do you? If you did, maybe they would consider changing the law.
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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I think some clairifications are needed here......
First..... Sex at any age with partners of any other age is abusive if coersed or forced in any way, shape or form.
Second.... grooming is a form of coersion.
Third..... whatever the legislatures of any particular soverign state determine as their adopted stance on this issue is absolute unless and until the legislation is changed to reflect a broader (or sometimes narrowre) interpretation.
Fourth.... irregardless of who is involved, if the law is broken then the law is broken... not bent to an individuals needs... not twisted to an individuals desires... BROKEN.
Fifth..... those that by choice break the law should feel the full weight of the laws retribution.
Sixth..... those who take it upon themselves to take the step to involve a minor in sexual contact need to be monitored... CONTINUALLY
This being said..... should children be prosecuted for experimentation??? NO...
Should there be a red line or a sliding scale??? Thats up to the governments involved.
Do I advocate FOR a sliding scale? Yup... why not? after all if the AOC is 18 and a 16 and 17 year old couple are in a relationship eventually (if they remain together) the older will age beyond the red line and thus by default make the (sexual part) of the relationship illegal.
Therefore.... is it right for them to continue the sexual aspect of their relationship? That is for them... no other to decide...
Is it legal for them to continus the sexual aspect of their relationship? NO... The law is clear... if a thing is illegal it is illegal in all sets of circumstances...
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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Guest
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On fire! |
Registered: March 2012
Messages: 2344
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Timmy: There are laws already that protect people against physical harm, so the physics argument isn't very strong, as those laws apply to children too.
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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But...... there are specific laws in place relating to the commission of sex crimes. These crimes are by their very nature considered hienous far and beyond a simple assault.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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I have wondered for quite some time why interfering with a perosn's genitalia is more serious a crime that interfering with their fingers, say.
Now before you jump on me and say "of course it's more serious", let me ask you why you might say that.
Genitalia is a body part. It has a specialist function, as do fingers, elbows, feet etc.
Society deems genitalia special. Why is that? Mostly all we use it or nearby areas for is urination.
So, putting any righteous indignation aside here, what is it about gentialia that makes it substantially more criminal to touch someone else's when they do not wish it than touching their elbow?
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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I never said it was a strong argument  But exploring all angles is worthwhile.
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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Some suggestions (though I don't know which, if any, is right)
1. It's bad because it's against the law. And it's against the law because it's bad
2. Because the Victorians decreed it so
3. Touching them inappropriately can lead to pregnancy and/or STDs
4. It's in the Bible somewhere
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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I never mentioned the manipulation of a persons genitalia.
By assault I was alluding to assault which results in the taking of a sexual favor.
Social mores build and develope over time. I would assume (without further research that I presently do not have time to conduct) that the stigma attached to the genetalia has to do with the intimacy of reproduction.
as for the elbow...... Well all I have to say is that elbow sex is not all that fullfilling.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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I really meant that nothing much sexual happens without involvement of genitals
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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I understand....
but the brunt of an assault can be the expectation of furthur harm if one does not give in to ones attacker.
The assault theoretically then becomes two fold because the first assault leads to the second which is of a sexual nature.
When it comes to assault, I think one has to not only extrapolate information as it is postulates but also take into account imperical data from those assaulted. Such data should by default hold more sway due to the familiarity with the reality as well as the horror of the situation.
In other words, it is easy to talk the talk.... but to really know what is important, what is offensive, what is a violation one has to walk the walk.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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saben
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On fire! |
Registered: May 2003
Messages: 1537
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I guess following on from some of the other ideas in this topic is could be said that Age of Consent isn't necessary. If an underage person and an "adult" consent to have sex with each other, in violation of the Age of Consent laws, then really, as long as it remains consentual and no-one finds out then the adult will never be prosecuted. A 18 and 16 year old can have sex, just as long as no-one ever alerts the authorities. It sounds like a kind of twisted form of justice, but at the end of the day you are innocent until proven guilty and if you are breaking the Age of Consent laws, you haven't committed a crime until you are found guilty of that crime.
Still, on a philosophical level I oppose Age of Consent laws, especially ones that restrict sexual freedoms. I don't think they are any better than laws that prohibit gay sex. Still, as someone says, until the teens themselves take on this issue and fight for their own sexual liberation it has no reason to be changed. Countries are quite welcome to take away the rights of groups of people, as long as the people whose rights are being stripped away don't mind.
Look at this tree. I cannot make it blossom when it suits me nor make it bear fruit before its time [...] No matter what you do, that seed will grow to be a peach tree. You may wish for an apple or an orange, but you will get a peach.
Master Oogway
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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This sounds like a criminal's view of the law.
If you commit a crime you commit a crime..... it matters not one iota whether you are caught.
Getting cauthe at a crime only brings the act to the next level.
To sit back and justify... even advocating sex with minors is abhorant at best.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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age of consent in this country for gay people was 21, then 18. its now 16, in line with straight age of consent.
does it make any less or more of a crime if at 17 i have sex twice in one year, once before the law changes and once after. my age hasn't changed at all, but one act is criminal and one isn't.
no act is evil, no act is criminal, no action anyone takes is fundamentally good bad or otherwise. an actions nature is defined by how you label that action.
what is a crime isn't a criminal act. whats a crime is what the government chooses to label as a criminal act. the nature of that act does not chnage.
genocide, 98% (or more) of people will agree is an atrocious crime. i tell you, genocide is not evil. objectivly. genocide is NOT evil.
genocide is considered evil because we view the act subjectivly. each and every one of us view the act through OUR world view, through OUR perceptions, and in the case of genocide, the large and great majority of people share the view that the act is wrong.
it doesn't make the act wrong, it just means the majority of people believe the act to be wrong.
i believe that in history, the English King Henry II Curtmantel was only 14 years old when he married the (i think) 25 year old notorious adulteress Eleanor of Aquitaine.
today, in this same country, such an act would be percieved as both wrong, and illegal, because of henry's age, and many people would say the age difference makes it wrong as well. many would disagree.
at that time in history, 12, 13, 14 were considered good ages to get married, and at 25 Henry was eleanors 2nd husband.
the way we percieve actions and events changes based on the world views of the people who view them.
this is the basis of both the phenomenological and symbolic interactionist theories of criminology. that no deviant behavior is inherantly deviant, no action is objectivly criminal, its is the labelling of such actions by society as deviant, and by the state as criminal that define what and what isn't right and wrong.
that right now the society and the state in this country are in agreement. there have been many times in the past when this has not been so, there are many countries right now who would disagree with our approach, and there are many people in our own society who disagree with the majority.
but to simply say this is the law, tough. is to be very narrow-minded. to not consider anything else is incredibly naive.
if people took that view at all times, slavery would still exist, homosexuality would still be illegal, women would not have the vote, because challenge creates adversity creates change. a society that accepts and does nothing does not change does not develope does not flourish it stagnates. and yes, not all the changes are good, some say not all the changes aid developement. but society is not perfect, no element of society is beyond further change, further development and further refinement, and to simply sit back and say this is the law, live by it, ignores absolutely any possibility for change, and to refuse to consider the validity of any other possible argument is to be pigheaded to the point of catholicism.
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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And you can rant and rave on and on but one thing holds true.....
If it is against the law then it is against the law.... Period......
Change the law if you see a need......
But in the meanwhile...... obeyance of the law is the only sensible course of action.
To take the stance that "if we don't get caught then it is not illegal" is rediculous at best! That same logic would apply from simple theivery to heinous murder.
Tha law is the law...... Cut and dry.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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Guest
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On fire! |
Registered: March 2012
Messages: 2344
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True, if it is against the law it is indeed against it. However, that doesn't make the law right in its stance, for one.
Two, it's not a problem that the logic would apply to theft and murder. It would be a problem if "criminal" was equal to "wrong/bad/evil/choose a fitting expletive". It is not necessarily so, and thus even tho theft and murder were not criminal, it would not make them right/good/etc.
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if the law was the law total and fixed and unmutable... why do the CPS cut deals? why does the CPS have so much discretion?
why will 2 fifteen years olds who have consensual intercourse not be prosecuted?
being against the law is only 1 of 2 criteria the CPS use to decide whether to prosecute cases.
the other is, is it in the public interest to prosecute. by that they mean, is the case worth bringing before the courts.
cases where the victim doesn't want to prosecute, or refuses to, or in some cases sides with the defence all fall under this public policy category, as do cases where there is insufficiant evidence to prosecute.
being against the law is only half of it.
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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whether or not a prosecuter decides to try a case when the law is broken has nothing to do with the commission of the act invilved.
If the law was broken then it was broken......
Not almost broken, not nearly broken, not comfortably broken...... broken...
Period.
it's like being sort of dead......
Either you are or you are not.....
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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I accept that a law is either broken, or it is not, but I applaud the common sense of the CPS (Criminal Prosecution Service) in deciding that some offences should not be prosecuted. In fact, if I have a quarrel with the CPS, it's because they are sometimes TOO lenient.
And it seems to me that history demonstrates conclusively that civil disobedience is sometimes the only realistic option in the battle to change an unjust law. In the UK context, civil disobedience gave women the vote years before that breakthrough could have been achieved by 'civilised negotiation' - and there are plenty of other examples.
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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If you took the time to read the preceeding posts you would know that I am refering to "the law" as it relates to the individual breaking it.
Not to the process that followes its breakage.
There is no justification to breaking a law on the individualistic level.
To break a law and deem one self innocent by virtus of "not getting caught" is just plain wrong on all levels.
also, any one who advocates the position that one "is innocent until one is caught" following the breakage of a law is breeding anarchy.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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civil disobediance is technically a public right in english common law, the right to assembly peacefully to protest and demonstrate etc...
moreover, there are plenty of examples of cases where doing what was termed a crime highlights the fact that the law, particularly with regard to regulatory offences, is often in error and needs adjusting, but these cases don;t come to light until someone commits such an offence, and defends against subsequent action.
the reasonable person test in criminal damage, the knowledge requirement in certain strict liability offences, and, ironically, the law of consent and rape, all stem from cases where people have committed what was a criminal action that the house of lords and court of appeal have ruled is not in fact criminal.
the current sexual offences act is itself highly controversial in that it imposes strict liability on any number of offences that carry custodial or high level punishments. strict liability is usually only used in regulatory offences where you do the crime, you pay the fine, tough luck... speeding, drink driving, parking, all the kinds of offences imposed by agencies and ministers under delegated laegislation and statutory instrument.
for proper statutory defined crimes like rape, the common law presumption is that some form of mens rea (mental culpability, or a state of "guilty mind") must be present along with the actus reas (criminal act) strict liability offences prohibit this.
courts have used broad interpretations to imply a required level of mens rea to a number of areas, notably drug laws, but the law regarding sexual conduct is falling behind in this area, because everytime the courts try and interpret the current act, parliament changes its mind in a few years and issues new acts that overall all previous court decisions. a few high profile cases are needed to reach the house of lords to correct the numerous errors of parliamentary (mis)draftsmanship and that is something cases at crown and perhaps even high court level cannot do
the fact is that the CPS in these areas also frequently has to use its discretion not to prosecute. it knows that do so would bring a punishment that is not conductive (or constructive) to either party involved, including the victim. instead they will often settle for advising the police to issue a police caution rather than prosecute, because the CPS judges that the culpability of the defendant does not merit the punishment the judges will be forced to inflict, because in strict liability offences, which also have defined sentances, the judge has absolutely no discretion to take into account other factors in mitigation.
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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but one is always presumed to be innocent of any crime until proven guilty of that crime by court of law.
even if someone is caught, even if they are charged, they are still innocent. they are innocent right up until the point where judge or juror says i/we find you guilty
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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marc
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Needs to get a life! |
Registered: March 2003
Messages: 4729
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True......
That is an integral part of the judicial systems set of checks and ballances....
but on the personal level.......
the person that commits the crime knows the truth. It has nothing at that level to do with guilt or innocense as it relates to the judicial system.
It is the personal knowledge that a wrong has been done.
Life is great for me... Most of the time... But then I meet people online... Very few are real friends... Many say they are but know nothing of what it means... Some say they are, but are so shallow...
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in this country, any deliberate unconsensual touching of a person by a person other than in the every day jostling of modern locomotion is a battery punishiable under law.
placing your hand on someones shoulder as a greeting is battery, slapping someone on the back in congratulations is battery, the old childrens game pinch punch first of the month, is battery.
battery can even carry custodial sentances (though unlikely for the situations i outline above)
in each of those situations the person has committed a criminal offence, but i very much doubt they would have personal knowledge of any wrong done.
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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Ah, but there's a slight difference there...
There isn't a presumption that someone is automatically guilty of battery when someone touches another person, nor is there a presumption that one cannot consent to having a hand placed on one's shoulder. Or, rather, there isn't, provided that the person who is touched is not significantly upset about it. In other words, people don't prosecute for battery unless clear physical harm has been done.
The thing about sexual assault is that nobody has any clear idea what constitutes harm.
The sole purpose (at least, the only justifiable purpose) of an age of consent is to protect the young from something that they may not be mentally or physically ready for yet. However, the whole thing becomes completely absurd when the law starts insisting that harm was done when both parties involved were completely happy with the outcome (at least, until the police/well-meaning but ignorant relatives/social services/counsellors/psychiatrists etc. become involved).
Incidentally, until this debate, I was not really aware that the CPS had as much leeway in terms of what to prosecute. (Incidentally, I think it's Crown Prosecution Service in the UK, not Criminal Prosecution Service?) Simply the fact that they don't prosecute everything that is technically against the law seems to indicate that, despite Marc's protestations to the contrary, the law cannot be considered absolute in all cases.
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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The law in the UK has never been absolute except when administered by the old feudal system. Our system is handled by laws which are enacted by parliament and then interpreted by the courts. Higher courts have the ability to set legal precedents un their interpretation of the law.
Additionally the CPS determines whether or not to prosecute in criminal matters.
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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Before thy knee I grovel, O mighty Deeeeeeeeeej! You are so right, CPS does stand for CROWN Prosecution Service. I submit the defence of insanity - I often came into contact with the organisation in relation to fraud charges (not against me, I hasten to add!) and as I have already said, at times I found that its conclusions were rather too lenient. Accordingly, the initials were commonly interpreted as Criminally Pathetic Service - not that I was biased, of course! - and I guess old habits die hard!
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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... I agree with most of what Black Prince says, and I particularly deplore the recent political attempts to restrict the discretion of the judiciary. Even the mundane system of fixed-penalty fines for minor road traffic offences is - at least in my area - grievously misused. A recent press report referred to a ticket issued for parking in a loading bay, though the statutory road markings to define such a bay were not present - but the fixed-penaly administration refused to review the case, blithely saying that it was up to the Courts to decide. Which, translated into the vernacular, means that if there is a cock-up over the issue of a ticket those responsible will not admit their guilt but will insist on taking the hapless motorist to court - knowing full well that the majority of the poulation will pay up rather than subject themselves to a Court appearance.
There is however one point upon which I must take issue. I agree that the English legal system has (or at least, until the last 25 years, had) a long history of tolerance of civil protest; even the infamous Riot Act had to be proclaimed before it could take effect in any specific situation. However, your suggestion that civil disobedience is a right under English Common Law is an oxymoron (I always think of that word as the male equivalent of a silly cow!). You can assemble and you can protest, but to be guilty of civil disobedience you need to be disobedient - that is, you must, at least to some degree, go beyond what the law allows.
Mind you, that isn't difficult!
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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... and I'm bloody incompetent? I shouldn't be allowed near a keyboard without my white-coated attendants!
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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lol don;t worry about it, everyone has their own talents, computers aren't always one of them...
looking back, i see what you mean about how stupid civil disobediance being legal actually is... its lawful to disobey the law? okay..
the english legal system used to be one of the most balanced and discretionary modern systems. however the influx of regulatory offences and the administration of them is a complete nightmare, not to mention being contrary to the basic principles of justice.
the notion of pushing the principles behind these offences up into primary law, like rape is, in my opinion, a very disturbing issue. it spells the end of any kind of legal defence, because no one cares about your mental culpability, only that you did something thats defined as criminal.
i read on the BBC that a man was challenging his parket ticket on the grounds that it breached the Bill of Rights 1689 which states that "All grants and promises of fines and forfeitures of particular persons before conviction are illegal and void."
an interesting argument, no court conviction, then no fine can be issued... doubt it will be successful though, since the fines must have been enacted by some form of legislation which would take precedence over the bill of rights... unless the fines were enacted by statutory instrument..
i'll see if i can find that article...
http://news.bbc.co.uk/1/hi/england/hereford/worcs/4450196.stm
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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cossie
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On fire! |
Location: Exiled in North East Engl...
Registered: July 2003
Messages: 1699
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I was prepared to admit to being boring, but not to being stupid! I accidentaly posted the same reply twice, but the duplicate posting has disappeared - but not my apology for it. It makes me sound like an incoherent idiot, and I HATE people getting so close to the truth .....
But seriously, though, I agree with Black Prince's disquiet at the drift away from judicial discretion, which is in essence an insidious politicisation (is that a legitimate word yet?) of our legal system. I accept that judges, being human, can sometimes reach the wrong conclusion, but since when were politicians superhuman?
However, the item about the Bill of Rights raises a couple of relevant points. Firstly, it draws attention to another trend - the insertion of quasi-judicial bodies between the public and the Courts. These tribunals can give rulings which are final unless challenged in a higher court, though their rulings do not in theory establish any legal precedent. That's fine in principle, but one way or another the members of any given tribunal become aware of decisions reached elsewhere and, though they are not bound by those decisions, there is a tendency to follow them. Some tribunals (for example, the Tax Commissioners) are restricted to establishing facts, and cannot give decisions on points of law. I think that this limitation should apply across the board, and I'm a little surprised that this isn't the case. It seems to me totally wrong that the National Parking Adjudication Service should be able to rule that the Bill of Rights does not apply; surely a challenge on a point of law should go straight to the Courts, so that the judgement, when given, DOES establish a precedent?
The second relevant point is the potential danger in challenging recent legislation using ancient Acts of Parliament or the common law. There is an ever-present danger that the challenger (if he pushes the issue as far as the High Court) will lose and establish an unwelcome precedent for those who come after him. It is a path to be trodden with care, and of course the public institutions are well aware of this.
And in conclusion, can anyone explain why we're discussing parking fines on a thread relating to the age of consent ...... ? My head hurts .....
For a' that an' a' that,
It's comin' yet for a' that,
That man tae man, the worrld o'er
Shall brithers be, for a' that.
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well, the hunt association or whatever they called themselves, challeged the anti hutning legislation based on the parliament acts (1911 and 1949 i think) and that challenege failed, tohugh it was always going to.
those acts among other things enable parliament to push through legislation without the lords support (like the hunting ban) but those acts themselves were never passed by the lords, and so were technically illegal, as the lords had to sign off all legislation back then.
but to overrule would cause a constitutional crisis that no court is going to wish to start...
with the bill of rights issue, the case will be heard by the parking tribunal thing, but they're not a court, they're a public body that regulates parking fines. if he disagrees with their decision, he can them apply to the high court for judicial review of the decision.
considering the subject involed, i expect the high court to uphold the parking tribunal, but grant leave to appeal to the court of appeal, because the nature of the legislation involved is probably above the high courts level of experiance.
i doubt any court will uphold the bill of rights in this situation for puiblic policy reasons though... simply because so many regulatory groups, from environment protection, water authorities, ombudsmen, EHO's all can and need to hand out penalty fines without going through the court system all the time.
added to which, the bill of rights isn't entrenched, so any later act of parliament that allows one of these regulatory bodies to fine people would implicitly overrule the bill of rights.
all that aside, i agree we've started to drag this thread so far off topic its over the horizon, so i'll strike out for the subject matter and bring us full circle again
judges don;t make law, so the myth goes, they only interpret it. but it is the judiciary's constitutional role to interpret the legislation that is the statutory will of parliament in the context of the case before them to give what is a just fair and reasonable verdict within the bounds of the law.
but when the law is so tightly regulated, and so strictly controled by parliament the judges, with their duty to dispence justice will rebel in kind.
people guilty of murder will be found guilty only of manslaughter in secret agreements between prosecution defence and judge about what charges to bring, because murder carries mandatory life that gives the judge no discretion over sentance, and does not allow him to take into account mitigation
judges will write convoluted and confusing judgements that twist the olaw about as far it'll go and then some to produce the result that is fair. in some cases though, they cannot do this.
a case that happened on my own estate at home reached the house of lords because of this.
2 boys (aged 10 and 11 at the time) had burned down our local centre causing over £1million in damages. they were both caught and charged with criminal damage.
what they'd done, one night, is in the shops loading bay, set fire to some newspaper to keep warm... they didn't put it out when they left, having no water, but thought it was ok to leave it, as it was on a concrete floor.
the fire spread to a wheely bin, to another bin, to the roof...
they were charged with criminal damage, and the jury was told, if you feel an ordinary reasonable person would have foreseen the fire might spread, and these boys did not foresee that, then they are reckless, and you must find them guilty of this charge.
the jury didn't like this. they didn't believe the boys were culpable. they refused to give a verdict, they asked the judge why they had to do it like this.
the judge sent them a note. it read along the lines of i too am disquited by the nature of the test you must apply to these boys, but alas, this is the law of the land that we must apply,. and it is not for you, nor for i, to change that law. but do not fear for for the fate of these boys, for i find myself in agreement with you, and should you find them guilty, their sentance shall be the leanest the law allows.
jury found them guilty, and they were given a handful of hours community service.
the judge gave leave to appeal as well, and they did so. court of appeal upheld the judgement, saying the precedent was clear and though they agreed with both judge and jury, had no authority to overturn the law. gave leave to appeal
house of lords invoked the 1966 practice statement and overturned the precedent stating that the law had been wrong the past 21 years, that these boys should never had been held to the same level of reasonableness and thought as an adult, that the test should have been "a reasonable person of the age and gender of the defendant" the lords overturned their sentance, and, as they couldn't give back the hours the boys had served, sent an apology and 2 bottles of champagne to the family's. the boys were aged 15 and 16 by this point.
a long story, to get to the point.
what if the penalty for criminal damage was fixed instead of very broad? under the law of the time, the boys could only be found guilty. they'd caused a million pounds worth of damage.
the CPS was already leniant with them, they could have been charged with Arson, but the charge was only criminal damage. the max sentance could have been a fine of several hundred thousand, or, considering their age, 2 years in juvenile detention.
in that case, the judge was bound by law, in other cases, even more unfair, unjust, the judge may be bound by both law and sentancing
if the law on criminal damage was the same as the law of rape, those boys would have had no grounds for appeal. the mental state of the defendant isn't considered in 90% of the offences in the sexual offences act...
there isn't even any requirement for knowledge.
if you, aged 19, go to a nightclub, meet someone there, pull him, go back to his place, etc... and tht person happens to be under 16.
tough
doesn't matter that you thought he was at least 18, doesn't matter that he even told you he was 18. doesn't matter that you thought everyone in a nightclub had to be 18+... doesn't matter that you thought you were doing nothing wrong. doesn't matter that the boy could pass for 18... doesn't matter that he looks older than you. doesn't matter that he consented. doesn't matter that he initiated things. non of that matters
you had sex with someone under 16. tough.
thats not justice. thats not just fair and reasonable. i don't even think that situation is morally right.
people mature at different rates, different speeds. there ARE 15 year olds who look 18, there ARE 15 year olds who look older than i do (i'm 19). i know a lad from work whose gay, at 16, he can get into our local gay bar with no problems, i get IDed all the time...
people also mature mentally at different speeds as well. i was a late developer and fairly innocent. others mture faster than me. others mature slower. i have no doubt you could find some 18yr olds who aren't mature enough to make decisions concerning sex. similarly, you can find those younger than 16 who can.
obviously, there is a line below which you cannot go. but once a child starts puberty, some things can happen quickly. i would say, 13, is the lowest, below which anyone who considers it really doesn't know what they are doing...
but once puberty starts, things happen to perople, they get curious... i read somewhere that boys first start "noticing" girls, being interested in girls at 13. 2 consenting 13 year olds? 14 year olds?
i thikn 16 is very very arbitrary age that reflects nothing at to do with relative physical or mental development.
at the same time, i would definately concede tht dropping that arbitrary bar to 13 would be a very very bad thing, offering no protection to those who havn't developed or matured above that age.
i think any arbitarily drawn age of consent is wrong.
i would much rather see some kind of sliding scale system, like saben described at one point... where 13 and 14 would be legal, 13 and 18 wouldn't... i think such a system would better reflect a) a childs need and inclination to experiment, and the opportunity to do so legally and b) the fact the same people develope earlier than others.
but if we do as marc proposes. if we accept this is the law, tough. then the law won;t ever change nor adapt. no one will ever sa, wait, this is wrong, this needs changing.
and while yes, we have to accept that at the moment the above situation with the 15 year old in the club is illegal, we also have to say at the very least that the position of the young adult in that scenario is NOT one of a criminal, that he has done notihng wrong because there is no way he could have known he was doing anything wrong, and should not be held responsible for what are in fact the independant choices decisions and actions of another.
Odi et amo: quare id faciam, fortasse requiris.
Nescio, set fieri sentio et excrucior
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Thanks, tbp. I found that very interesting. I wish I could add something to your post, but my personal knowledge of the law was surpassed many posts back.
I think this is one of the most interesting discussions there have been on this board for a while. Perhaps someone could archive them in a "past discussions" area of the web site? (Timmy?)
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timmy
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Has no life at all |
Location: UK, in Devon
Registered: February 2003
Messages: 13751
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This forum does not expire We have no weeding date.
Author of Queer Me! Halfway Between Flying and Crying - the true story of life for a gay boy in the Swinging Sixties in a British all male Public School
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Re: Perhaps a controversial question 
