During the past few days in England, paedophiles—never far absent—have been back in the news. First, there was the arrest of the popular musician Pete Townshend for alleged possession of child pornography. Then there were the allegations made against Matthew Kelly, a television entertainer, that he had been sleeping with boys below the present legal age of consent. There are claims that other entertainers are under suspicion for the same offences, and that even two former Cabinet Ministers are being investigated for child pornography offences.
Though very much the junior partner, paedophilia is with racism one of the two words best guaranteed in this country to send otherwise brave and rational commentators running for cover. To discuss it in any but the most luridly condemnatory terms is to risk bringing suspicion on oneself. In this respect, it is rather like witchcraft or heresy during the sixteenth century. The temptation is to say nothing or to join in the chorus of disapproval.
However, though not specially brave, I am fairly rational; and I know that there is little that can be done to me for speaking my mind on the subject. I do not sleep with children—Mrs Gabb would at the least disapprove—and I do not possess any child pornography. So I will speak my mind.
To begin, I do not agree with some libertarians that there should be no age of consent whatever; and that children should be regarded by the law in the same way as adults. There is an age for everyone below which lack of rational faculty and lack of experience makes valid consent to any unusual or dangerous act impossible. I do not know what this age is—and I accept that it may differ widely between individuals—but there is good reason for giving persons below some age a special status in law that prevents them from making many decisions for themselves, and that imposes various responsibilities on those adults around them.
This being so, having sex with children below some age ought to be a crime. Sexual acts are always potentially dangerous. They are a means by which often fatal diseases may be communicated; and some sexual acts may cause physical injury—especially with the very young. For pubescent girls, there is also the risk of pregnancy. Then there is for children the possibility of spiritual harm. Sexual intimacy may give rise to expectations of a more general attachment that is not intended to exist. And that a child has consented to have sex with an adult—however invalid the consent—may bring it into a widespread and long term disrepute that could not have been reasonably foreseen. For these reasons, I do believe that having sex with children below a certain age ought to be a crime for adults, and that convicted criminals ought to be sent to prison. And the severity of punishment should be greater in those cases where the convict enjoyed a position of authority or other influence over the child. As said, I do not honestly know what this age of consent should be—I would suggest 14, though with hesitation—but that there ought to be some age of consent strikes me as obvious.
This is not, however, to endorse the conventional reaction to paedophiles or to those accused of paedophile acts. The demanded - indeed, often the actual—legal treatment of such crimes shows a lack of humanity and common sense that, one day, I am sure, will be regarded with the same astonished horror as we now regard the treatment of heretics. Certainly, there are acts classed as paedophile that deserve punishment and even severe punishment. But with these acts, too often are included acts that ought not to be criminal or that deserve trial according to far more sensible rules of procedure.
When I say that some acts should not be crimes, I specifically mean possession of child pornography. By all means, those who produce such images by persuading children to take part in sexual acts, and those who commission such images, should be treated as criminals. But possessing such images, and even distributing them when produced abroad, should not be a crime. This latter point I would justify on the grounds of disapproving any extraterritorial jurisdiction to states: to punish people for crimes committed abroad involves an extension of control that can easily slide into a general tyranny. So far as possession is concerned, this involves a policing of the imagination that is inconsistent with liberal democracy. And this policing of the imagination is all the more inconsistent so far as the present British law makes no distinction between actual images and "pseudo-photographs"—that is, images that may have been produced without the involvement of any child. Moreover, because proving crimes of mere possession does not require third party testimony, or any objective evidence, it gives the authorities the power to destroy people on the basis of planted evidence.
It may be said that the possessors of child pornography are giving an incentive to its production. Perhaps this is true. But allowing this argument establishes a principle that is capable of almost unlimited extension. Employing children as coal miners is a crime in this country. We import coal from Columbia, where children are employed as coal miners. We import other goods from countries where children have been employed in the manufacture. Should this make us criminals? Should there be laws against importing such things? Answering yes to the former would be absurd, and to the latter would, at the least, give a mass of commercial interests reason to demand protection for themselves that would soon close the country to most foreign trade.
We are perhaps justified in thinking less of those people who have a known interest in child pornography. But I fail to see why they should be treated as criminals of any kind. I certainly deplore the hysterical denunciation these people receive from politicians and the media. I will also note the misuse of scarce policing resources. When Pete Townshend was arrested at his home in London earlier this week, he was visited by 12 police officers. Were there no burglaries that day in London? No muggings? No rapes? No murders? Was sending out a dozen strong officers to arrest a small man in late middle age an entirely rational use of police manpower? It may easily be doubted.
I turn now to rules of procedure. I understand that some of the allegations against Matthew Kelly involve acts committed in the 1970s. A few years ago Garry Glitter and Jonathan King—also popular entertainers—were charged with offences sometimes dating back to the 1960s. Surely there ought to be a bar to investigating such ancient crimes. Even when everyone is acting in good faith, memories are unreliable after so many years have passed. Where murders are concerned, there may be forensic evidence. For other crimes, there may be numerous witnesses. But allegations of child sex from 1965 or whenever can be based on nothing more than the assertion of one person. This gives open season to blackmailers and the vindictive. Despite a formal burden of proof on the prosecution in this country, in practice it is often for the defence to disprove accusations. How can acts alleged to have taken place decades ago possibly be disproved?
And even if it is not malicious or driven by some financial motive, there must always be some doubt regarding the value of witness testimony from so long ago. Let us suppose that I had been buggered by my games teacher in 1973—I was not, by the way: I generally absented myself from school on games morning, and was partly in consequence a somewhat unprepossessing youth—what should I have done about it? The obvious answer is that I should have complained at the time. If, for whatever reason, I chose not to complain, I should have put the whole matter from my mind and kept a stiff upper lip. What sort of person is it who spends thirty years fretting over so comparatively trivial an assault, and then runs sobbing to the police? I should rightly feel ashamed of myself if I were to have become that sort of person. And the fact of my complaint after so long ought to indicate a mind so disordered that my testimony was accounted worthless. It is not entirely the fault of juries that they frequently do not disregard such testimony—though the jury in the Gary Glitter case did disregard it. It is far more the fault of the authorities for giving credence to such testimony and letting trials go ahead purely on its basis.
No—as with the investigation of adult homosexual acts—not that these should be crimes at all—I would set a limitation of three years, after which complaints could not be received.
I have no reason to suppose that either Pete Townshend or Matthew Kelly are guilty of any of the criminal acts so far alleged. But if they are, I devoutly hope they get away with them. All being said, though, I cannot help being curious about the names of the two former Cabinet Ministers. If they are the men I suspect, perhaps no accusation can be too base or scandalously unjust not to be entertained against them.