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There has been widespread disquiet this week over the news that a 15-year-old girl in West Yorkshire was arrested and detained in a cell overnight, then held for a further four and a half hours at Bradford Crown Court, before being compelled to give evidence against her adult male abuser. Judge Robert Barfield ordered the child's arrest and imprisonment at the request of police and prosecutors. The girl gave only a reluctant 20 minutes of evidence. (She had, the court was told, 'strong feelings' for her abuser.) This was enough to persuade a jury to give a unanimous verdict of unlawful sexual activity with a child. The man, twice her age, had made her pregnant when she was 14.
Judge Barfield says that without the draconian intervention, the trial would have collapsed. No doubt he's right. But the girl is likely to perceive herself as being more abused by the judicial system than she was by her attacker. Paedophiles who successfully groom their victims perform a sophisticated psychological assault before they move on to physical assault. It was the depth of psychological assault that resulted in the child siding with the criminal who abused her rather than the institution that sought justice for her. The entire matter is nasty and manipulative, and the child is the one person in the world least likely to be able to see this.
Yet, this case is significant not because it is typical. It is significant because it is so very unusual. In recent months and years, Britain has learned that a number of paedophile rings were allowed to thrive in its towns and cities more or less unchallenged, with even social workers failing to understand that the men should not go unprosecuted because the children involved met willingly with their abusers. It was because these girls were already vulnerable that they became so complicit in their own abuse. In essence, that is what sexual crimes are all about – exploitation of vulnerability. It may seem paradoxical that this one young girl was forced to appear in a trial and play a part in the conviction of her abuser when so many people find that they cannot even get their assailants into court. But the seeming high-handedness of the judge is an example of how difficult it is to do the right thing in sex trials. Had Judge Barfield not been absolutely convinced that the girl's evidence would ensure a conviction, he may have decided what many critics believe he should have decided anyway – to let it go. Hopefully, in years to come, the girl will grow up to see that the judge was right.
This case, however, is the exception that proves the rule. The vulnerabilities of sex-crime victims, rather than making them reluctant witnesses, tend to stop them from getting justice. Professor Betsy Stanko, who is assistant director of planning with the Metropolitan Police, has spent ten years analysing the force's investigation of rape. In an as yet unpublished report, recently obtained by the Bureau of Investigative Journalism, she argues that the rape of vulnerable people, particularly those with mental health issues or learning difficulties, has been effectively decriminalised, simply because they are highly unlikely to get access to justice.
Stanko's research, which will be presented in a lecture at the London School of Economics on Tuesday, is very troubling. The draft paper does not include final figures, but suggests that: 'Those with learning difficulties were 67% less likely to have their case referred by police for prosecution than those without. Mental illness reduced the chances by 40%.'
The terrible irony is that the victims who are least likely to be able to understand consent are also the least likely to be taken seriously. Stanko says that the problem lies in the tendency of investigating officers to focus on the credibility of victims, which is considered crucial to offering solid evidence about consent, or lack of it. Stanko's radical idea is that police should concentrate instead on investigating whether a victim's vulnerabilities have been exploited. Now that somebody has said it, this concept makes perfect sense. It could be a huge breakthrough in the long struggle to change attitudes to sexual crimes.
All those excuses – the victim was drunk, the victim had been leading me on, the victim looked older than she was, the victim was wearing clothes that I thought were a special message to me that she wanted my penis inside her – suddenly, all these become reasons why an attacker should NOT have gone anywhere near a victim. Suddenly, all those supposed mitigations can be seen for what they are – declarations that someone was seen as vulnerable by a person who took advantage of those vulnerabilities.
Stanko's idea is all the more powerful because, after many years, it remains abundantly clear that the 'consent' message is not getting through. Sue Berelowitz, the deputy children's commissioner, was on Radio 4's Today programme this week, reiterating that consent simply isn't understood, and calling for greater education of children to combat the problem. But maybe that isn't the way forward at all. God knows that even when these matters get to court, the issue of consent just becomes one person's word against another's. Teaching children what exploitation is, rather than what consent is, may be a more visceral way of getting across the cowardice and self-delusion of rape.
In November last year, Berelowitz backed Professor Jenny Pearce, of the University of Bedfordshire, who, as lead researcher on a report on sexual violence, declared that: 'In some areas the level of sexual violence and the types of violence inflicted are comparable to how sexual violence is used in war-torn territories.'
The analogy is terrifying, but useful. Angelina Jolie's film In The Land of Blood and Honey is a modest and straightforward effort, telling one woman's story in order to illustrate the general horror of rape in war. Clearly, the women held in the Bosnian conflict's notorious rape camps were as vulnerable as it's possible for rape victims to be. What's obvious is that for the rapists the abuse is affirming, more affirming even than killing the enemy, because a corpse cannot see your power over them. The men in the film raped the women because they could. Abusing someone who is utterly vulnerable does not make you powerful, but these men don't see that – they instead see the vulnerability as a measure of their comparative strength. In war, the film showed, vulnerability is seen as an invitation, a reason, to rape. Judging by the excuses for rape that are habitually given to researchers seeking to find out whether young people understand consent, civilian rape isn't so very different.
All this makes me feel certain that Stanko is right. The emphasis on consent in the legal definition of rape places all of the onus on the victim. An emphasis on vulnerability places all the emphasis on the perpetrator, on the one who, in the old euphemism, is 'taking advantage'.
The realisation, after his death, of how greatly Jimmy Savile had taken advantage of vulnerable people looked for a very short while like a case that could change the way predatory sexual behaviour was viewed. That delusion has faded away in a very short time.
Acquittals in other historic abuse cases against celebrities – cases that would never have reached court had it not been for the Savile revelations – have served only to emphasise that there is a strong feeling that, by being minded to believe accusations of rape, one risks encouraging vexatious accusations. Yet famous people – men and women – do use the comparative vulnerability that their fame inspires in those who are impressed by it to attract sexual partners. It's what 'groupie' culture, such an excellent cover for Savile's activities, is all about. It isn't rape to have sex with someone you have no feeling or connection to, or companionship with, if that's what you both want. Anyway, consenting to sex is like consenting to accept a parcel whose contents are only very vaguely known to you. The sexual interaction one has consented to may not be the sexual interaction one gets. In the Julian Assange case for example, the women who accuse him of assault may feel that they did not get what they believed they had agreed to. Even consent is sometimes a grey area. The issue reminds me of the four-year-old who told my friend, who was his host on Christmas day, in a fury of disappointment: 'When I said I liked Christmas dinner, I didn't mean this one.'
One cannot legislate against disappointing sex, sex that was less romantic than one partner imagined, sex that made a person feel empty when they wanted to feel happy. People talk about consent as if it's 'yes' or 'no' when it is in reality a complex contract in which each side ought to understand what is being offered and what can be expected. It may not be rape for a person to use their position of prestige or power over someone else to impress them into bed. But it just isn't admirable to use your advantage over someone else to get what you want. How vulnerable does a person have to be before exploiting that vulnerability to initiate sex with them becomes a sociopathic or even a psychopathic act? That seems to be to be a more useful way of starting a debate about rape than starting with 'consent', an idea which sounds simple, but is actually so complicated that even those who make the law, and those who are charged with upholding it, don't seem to grasp what it means themselves.
Produced By Josh Gelman and Mary Noonan RobichauxThis story originally aired Jan. 13, 2007. It was updated Aug. 31, 2007.
In the summer of 2006, in what is known as low country South Carolina just north of Charleston, for a change it wasn't the heat everyone was talking about - it was the havoc one man wreaked on this small coastal community.
As correspondent Troy Roberts reports, Stephen Stanko faced a six-count indictment, including murder and kidnapping. It was the county's first death penalty case in nearly a decade and Stanko stood accused of committing some of the most heinous and brutal crimes in Georgetown in recent memory.
Prosecutor Greg Hembree says Stanko is a cold-blooded killer. 'He has no remorse,' he says.
It's hard to believe that Hembree is talking about the same highly intelligent, seemingly polite 39-year-old, who excelled in school and was described in his yearbook as the all-American boy.
Friends and family say it was that quiet confidence and intelligence that first attracted 43-year-old Laura Ling to Stanko when they met in the fall of 2004.
'He seemed just so pleasant. And solicitous. And just attentive to her. And just so normal,' remembers Laura's sister Victoria Loy.
They knew each other just two months before Stanko moved in with Laura and her teenage daughter, and from all accounts everyone got along.
'My life with Laura was unconditional,' says Stanko. 'I loved her, she loved me. We never judged each other.'
But then came the early morning hours of April 8, 2005, when Stanko simply snapped.
As the lead investigator on the scene, Lieutenant Bill Pierce arrived at the Ling home and learned the grisly details. 'Some time after midnight there was an altercation between Laura Ling and her live-in boyfriend Stephen Stanko,' Pierce says.
Stanko says Laura had slapped him and that a lit cigarette in his hand got lodged between his glasses and burned him. He says it's the last thing he remembers.
Lt. Pierce says Stanko bound Laura's hands behind her back, beat her and then turned his attention to her daughter, who was asleep in her bed.
Laura's daughter, who 48 Hours has agreed not to identify, was the prosecution's key witness. 'He told me 'Scream and I will kill you both.' I wanted to get to my mom and tell her 'We have to get out of here,' she testified.
'I first looked in my mom's room I saw her lying on the floor and I heard her moaning and kicking. She was incoherent and she was trying to say something or do something but she couldn't and the next thing I know I was hit over the head with something and I blacked out,' Laura's daughter testified.
When she regained consciousness, Stanko was on top of her. 'I fought him, I kicked and kicked,' the teen testified. 'He was so strong, he was so strong. He then proceeded to rape me.'
Hembree says that at some point, Stanko turned Laura on her stomach and choked her to death. And then, her daughter testified, he held her head up from behind and slit her throat twice.
After the attacks, Stanko took a shower, where he claims he regained his memory. When he walked into the bedroom, he says 'I felt for a pulse on both of them. And there was no pulse.'
'I ended up packin' and leavin',' he tells Roberts. 'I really wanted to kill myself.'
Laura's daughter survived and eventually managed to reach for a phone to call 911.