Asinine Elements

Tim Black writes:

There is no doubt that Stuart Kerner behaved very badly. Immorally even.

Why? Because two years ago, this then 42-year-old vice-principal at Bexleyheath Academy, a secondary school in south-east London, had sex on several occasions with one of his 16-year-old female pupils.

It may have been consensual sex, but there’s no way of dressing this up, no point in sugarcoating the tawdry facts of the matter.

A teacher, a person in a position of trust, a position of power, abused that position. He let down his colleagues, his wife (who had just miscarried), and he let down the girl. It is right that he was sacked.

And yet despite the sordidness of this unedifying tale - the excruciating details of which the media have revealed with condemnatory glee - is it right that the police were involved?

Is it right that Kerner was eventually convicted on ‘two counts of sexual activity with a child by a person in a position of trust’?

Is it right that this folly, this hideous lapse in judgement, should have landed him an 18-month suspended sentence and the obligatory inclusion on the sex offenders’ register?

By the letter of the law, yes, it is the right outcome. A teacher had sex with a pupil below the age of 18. Kerner therefore broke the law.

But perhaps the law is wrong. Perhaps it’s a bit of an ass.

Perhaps it adds a draconian sanction, not to mention stigma, to an act that has already been punished with the sack, and no doubt in private, with the shame and condemnation of friends and family.

Such cases just seem too marked by shades of grey for the black-and-white judgement of the law.

After all, the female pupil in this case was 16 - she was above the legal age of consent. She was deemed, in the eyes of the law, to be capable of deciding for herself whether or not to have sex with someone.

If a significant section of Britain’s political class has its way, she soon might well be deemed old enough to vote in parliamentary elections.

There is, then, enough to suggest that we as a society consider 16-year-olds to be capable of making decisions about their lives and, potentially, the future of the country.

Yes, it’s really only a guideline - some 16-year-olds are incredibly emotionally mature, others less so - but still, there’s an acceptance that 16-year-olds are adult in many areas of life, including sex.

So is it not conceivable that when it comes to those rare instances when a teacher has a sexual relationship with a 16-year-old pupil that there is more to it than a simple act of abuse?

There seems to be too much moral grey, too much ambiguity, too much murkiness in such cases for a hard and fast legal judgement.

One thinks of the two-year jail sentence dished out to a female teacher in Birmingham for having sex with a 16-year-old male pupil.

Or the 15-month jail sentence served to a female music teacher for a long-term relationship with one of her female charges.

Sack the teacher, stop them from compromising their professional role, by all means. But to bring down the full weight of the criminal-justice system on the teachers involved seems harsh.

It allows for no discrete judgement of the case in question, no willingness to take into account the particular nature of the relationship.

Of course, it’s not the moral complexities of the Kerner case that have grabbed the media’s attention. No, it was Judge Joanna Greenberg’s sentencing justification.

‘There is no evidence you encouraged her in any way’, she told Kerner. ‘There is no evidence you groomed her. If anything, it was she who groomed you.’

Greenberg went on to describe the girl as ‘intelligent and manipulative’, and said she ‘showed no compunction’.

Cue shrill outrage. This is ‘victim blaming’, came the shouts. Kerner’s behaviour is being excused, and the girl held responsible. 'Twas ever thus in our patriarchal justice system, went the underpinning sentiment.

One commentator even suggested that such logic was probably at work when the police ignored the systematic sexual abuse of teenage girls in Rotherham. The moralistic crusading mist had descended.

Yet what Greenberg was doing here was not indulging men, or giving vent to patriarchal apologism. She was drawing out the asinine elements of this particular law.

Because what the law wants to judge as a case of abuser and victim, what the law wants to traduce as an example of active perpetrator and passive victim, almost always involves a bit more give and take, a bit more adult reciprocity.

Which is exactly what you’d expect given the respective ages of those involved.

In a society ever keen to elevate 16-year-olds, to grant them an ever greater degree of autonomy (for right or wrong), is it any wonder that a judge is willing to see, in this case, two adults, rather than a victim and an abuser?

For all the attempts by the media to squeeze this case into a simplistic narrative of wicked adult and victimised child, the fact here is that two people over the age of consent had consensual sex, and one was criminalised for it.

And we should think very carefully before inviting the law into the realm of consensual sex between people over the age of 16.

The age of consent should effectively be raised to 18, by making it a criminal offence for anyone to commit any sexual act with or upon any person under that age who was more than two years younger than herself, or to incite any such person to commit any such act with or upon her or any third party anywhere in the world. 

The maximum sentence would be twice the difference in age, to the month where that was less than three years, or a life sentence where that difference was at least five years.

Either the age of consent is 16, or it is not. If it is, then teacher-pupil activity above that age is the height of unprofessionalism, but it is not properly a matter for the criminal law.

That is one of the many very good reasons why the age of consent ought, with the caveats set out here, to be raised to 18, even granted that many of us were born in September, and indeed that very many people indeed were born such that their legal majority will be attained in the first term of what will soon be the compulsory Upper Sixth.

No different rules for “positions of trust”, which are being used against male, but not female, 18-year-olds looking after female, but not male, Sixth Formers visiting universities.

And no provision, as at present, for boys to be prosecuted at any age, even if they are younger than the girls involved, whereas girls have to be 16.

At least unless they decided as adults to seek to make contact with their children, the sometimes enforced financial liability of male victims for pregnancies resulting from their sexual abuse ought also to be ruled out. How’s that for victim-blaming?