02 March 2016

Sex and the Law

Professor Geoffrey Nice QC

Reputations tumble; men once popular and famous but too powerful are condemned and imprisoned. Others fear their reputations will not long survive their deaths. Others will 'get away with it' as presumably they always have. How will all this be viewed in decades to come? Witch-hunt or confirmation that Mary Whitehouse was right all the time and the sexual revolution is to blame? If so, what should society have done that it didn't? What should it do now apart from lock up aged offenders? And what about juries? Will they, not judges, ultimately determine how law can be fair on sexual behaviour – assuming juries can ever discuss these things candidly.


Sex is funny because we can't speak about it seriously


This letter reveals several surprising things. First that a grammar school teacher had clearly been able – if his bragging was accurate – to seduce young girls and get away with it. Second that he felt no fear in writing about his intentions that would be the end of career and possibly the route to the slamming of a prison door in today's climate, but third and fourth that I was not apparently shocked at receiving such a letter and was able to forget it completely, although I don't believe I saw the writer again. When I had calculated who it was from I checked his name in case – 90 years old though he would be at least – he featured anywhere; he didn't. Time changes morality, public and private, and with it our sensitivity and even our memory.

Abuse of children

Living memory

"The single unifying term 'child abuse' encompassing all child maltreatment emerged in the late 1960s and early 1970s. In the 19th century no single term was used to designate adult-child sexual contact. 'It could be called unlawful carnal knowledge, incest, criminal assault, an outrage, an unnatural act, a slip.' Similarly the child protectors of the 1880s and onwards used several terms, predominantly 'child cruelty' and 'child neglect', to define the types of evil which they were intent on preventing and punishing. Even when the term 'child abuse' began commonly to be used in the 1970s, it was used primarily to refer to the physical assault of children. The term became all-encompassing in the late 1980s when the problem of child sexual abuse became more widely recognised. The, now common, use of the term 'child abuse' gives the impression of a universal consensus about what acts and omissions are abusive; however this is far from true." [3]

27.In paragraph 3.71 Dame Janet sets out some of the relevant statutory provisions:

From the 19th Century, the criminal law sought to protect children from sexual abuse. The Criminal Law Amendment Act 1885 provided for offences of carnal knowledge of a girl under 13, and from 13 to 16. Later, a range of offences from rape to unlawful sexual intercourse, gross indecency and indecent assault, to name but a few, covered sexual acts against children. The Sexual Offences Act 1956, a consolidating statute, provided for offences in relation to children (girls) under 13 and children (girls) under 16, with heavier penalties for the former. There were separate offences of buggery and what was then termed "gross indecency" between men. Further offences of indecent conduct were provided for in the Indecency with Children Act 1960, which used an age limit of 14 years. There was (and still is), however, no legal definition of "paedophile" in English law, although there were various offences (some of which I have mentioned above) under which those who sexually abused children could be prosecuted.

Historic sex crimes

Paragraph 3.32: A journalist told me that, while working at the BBC in the 1980s, he had seen a crowd of young girls standing in the corridor waiting to get into the Top of the Pops studio. He said that it was hard to tell their ages as they were "made up to the nines" but from the conversations he overheard, he had the impression they were there in the hope of "bedding the presenter".

Paragraph 3.65-6: Tina Ritchie, who, in the early 1990s, worked as a newsreader on BBC Radio 1, described hearing of "a lot of sort of bottom slapping of women in the office" at Egton House, which contrasted with her experience in current affairs at Broadcasting House. She attributed the contrast to:

"these incredibly famous men surrounded by people who did exactly what they wanted because they were incredibly famous. It is sort of one feeding the other, and everybody surviving slightly on a culture of fear, because one word from a presenter and you would be in trouble, which is why I didn't say anything".

3.66 One witness, who worked in BBC Radio 1, said there were lots of "wandering hands, comments about your body chaps just felt it was perfectly fine to put their hand on your bum and other places." Another who also worked in BBC Radio 1 described how a colleague would put his hands up the front of her jumper while she was working. When she complained to her manager, the reaction was to ask her if she was a lesbian. In the witness's view, "if it didn't come from the top, [this culture] was supported and endorsed and allowed to continue from the top".

Criminality – Wickedness – Suffering

Can we progress?

Take the cultural aspect first. Mervyn Griffith-Jones, the QC who prosecuted Lady Chatterley's Lover, has forever been mocked – and is mocked again in the Hutchinson story – for counting the number of times "four-letter" words are used in the book (the most famous one appears on 30 occasions, he reported to the court). Yet I doubt whether art has been improved by feeling free to swear its head off. The fact that certain words were taboo gave them potency, and added to humour as people circled round them.

The idea that everything has to be full-frontal is an anti-artistic one.

The same applies to the depiction of sex. No one could say that Shakespeare was shy of the subject, but he managed pretty well without showing the act itself on stage. Both Last Tango in Paris and The Romans in Britain were prosecuted because they included explicit scenes of anal sex – rape in the latter case. I do not think it was a good idea to try to ban them, but nor was it a good idea, artistically, to put them on. It is a stupidly literal-minded attitude to art which says that such things must be shown, as if nothing else is "honest".

Today, no avant-garde production is complete without a scene of sexual violence or (to use a word that is not treated with enlightened tolerance) perversion. Indeed "avant-garde" is an absurd term for what has become a rigid convention. The brave, innovative play today would be one about a vicarage tea-party in which everyone said "please" and "thank you" throughout.

In the mainstream, there is a similar effect. Woe betide the soap opera or television drama in which the cast keep their clothes on throughout. The concepts of restraint, suggestion, ambiguity, which are central to art in all its forms, have been lost. Even comedy benefits from such rules, and suffers from their lack. It was a nadir in our cultural life when, in 2008, Jonathan Ross and Russell Brand left an obscene telephone message taunting the elderly actor Andrew Sachs and played it on Radio 2. Ross was the highest paid entertainer in the history of the BBC (£6 million a year at the time). Somehow the freedom won in the Sixties had curdled into crudity and cruelty.

Campaigners like Mary Whitehouse were laughed at for complaining about a "tide of filth", but it does not seem an inaccurate description of what resulted. They were also considered ludicrous for asking: "Is nothing sacred?" Yet it is a good question for society to ask itself. If the answer is "No", you can be certain that life will become more barbaric.

Which brings me to the social effects. How did the new freedoms work? It is clearly a good thing that fewer women today have backstreet abortions, but is it a good thing that hundreds of thousands have permitted ones on the NHS? It is welcome that children nowadays have sex education, but is it welcome that they learn about sex roles from pornography on the internet? The amount of material pushing very young girls to make their bodies more sexually attractive is not a symptom of liberation, but of imprisonment.

The tale of Jimmy Savile is the classic example of how the Sixties concept of "fun" acted as a cover for something much darker. Mrs Whitehouse's warnings about the exploitation of women in the brave new liberated world were seen as fuddy-duddy at the time. They now seem almost fashionably feminist as we learn more about how powerful men were able to exploit the breaking down of boundaries.

With any social change, you have to ask "Who benefits?" It is obvious that the liberalisation of the Sixties benefited the educated classes. They could collect high levels of public subsidy for plays that savagely assaulted the people whose money they were taking. They could be "brave" (how that word is abused), literally without having to pay the price. Freed from control by stuffy figures like the Lord Chamberlain (who was in charge of censoring plays), they could establish cultural hegemony

It may not have been so good for those in weaker positions – the girl told she mustn't say "No"; the groupie in the disc jockey's studio; the young woman wanting children in a secure marriage. Read what happened to some of those caught up in the liberation – Maria Schneider after Last Tango in Paris, Linda Lovelace after Deep Throat – and you get a sense of the cost.

The Mary Whitehouses lost the argument. Perhaps they deserved to do so, because their only solution to the problems they identified was to try to ban whatever they did not like. But they did have a sense that civilisation is fragile, and that things which are low and disgusting make it more so. They were right about that. The more extreme reformers had no such sense, and thought that individual choice trumped the good of society every time. They were wrong.

So a happy century to Jeremy Hutchinson, who represented decency even when he defended indecency. But a happy century too, to the Women's Institute, which has contributed a lot more to human happiness than the Royal Court Theatre. We have hardly begun to work out how to create an order in which the law is liberal but the social restraints are strong. I suppose I am talking about the Big Society, but it might be better to find another phrase.


© Professor Geoffrey Nice, 2016

[1] Knafo and Jaffe (1984) found that university males were more likely to endorse the fantasy "I imagine that I rape or humiliate a woman or women," for example, whereas women more frequently reported the fantasy "I imagine that I am being overpowered or forced to surrender." Interestingly, Kanin's (1983) study of women's "rape fantasies" suggests that, in many cases, these fantasies were "something quite different from rape. . . they appeared to be reporting erotic fantasies about being aggressively approached and sexually engaged, but in situations where they offer only token verbal resistance, if any, to a highly desired encounter".

[2]Percentages of Males and Females Reporting Masturbation in the Past Month and Past Year, Ages 14 - 70+.



14-15 42.9 24.1 62.1 40.4

16-17 58.0 25.5 74.8 44.8

18-19 61.6 26.0 80.6 60.0

20-24 62.8 43.7 82.7 64.3

25-29 68.6 51.7 83.6 71.5

30-39 66.4 38.6 80.1 62.9

40-49 60.1 38.5 76.0 64.9

50-59 55.7 28.3 72.1 54.1

60-69 42.3 21.5 61.2 46.5

70+ 27.9 11.5 46.4 32.8

Source: Herbenick, D et al. (2010). Sexual behavior in the United States: Results from a national probability sample of men aged 14-94. Journal of Sexual Medicine, 7, (suppl 5), 255-265).

[3] C. Hoyano & C. Keenan, Child Abuse: Law and Policy Across Boundaries, Oxford University Press, 2007, p. 7

[4] http://www.telegraph.co.uk/comment/columnists/char...