A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
The Times carries a fascinating piece today revealing that lie detector tests are being used to help to decide whether to charge suspected criminals for the first time in British policing history. The Times makes clear elsewhere that whilst the tests are ‘reliable’, they are not ‘perfect’. Check out the Independent take on the story if you don’t have access to The Times.
A pilot was conducted by Herefordshire Police who tested 25 ‘low level’ sex offenders. According to The Times, ‘many were exposed as being a higher risk to children than originally thought. A further 12-month trial has been approved to begin in April.’
A separate piece provides detailed exploration of the pilot through a case analysis of ‘Michael’. He was arrested on suspicion of loitering outside a school and following pupils in his car. Acts which – the Police would surely argue – suggest the intention to commit an offence with those children. A predator stalking his prey. Michael denied the allegations but he did admit that he had accessed indecent images over two years and had used search engines to look for young girls. However, he insisted he had no physical sexual interest in children.
Michael was, it seems, making a distinction between ‘desire’ and action, between possessing a fantasy and acting upon it. Law traditionally focuses upon action rather than desire in sexual offences but paedophilia is something of a peculiarity for English criminal law. For example, the law accepts a sixteen year old can have sex with a forty-nine year old. Socially, it might be looked upon with disdain but it is legally tolerated. However, if that 49yo takes a photograph on his phone or a makes a video of the encounter for subsequent sexual succour he has (thanks to the Coroners and Justice Act 2009) become a paedophile. Ta-dah! In the curious scenario, the ‘desire’ is condemned more than the actual consensual act. Go figure.
In the case of Michael, Detectives found ‘low-level’ images in his bedroom but a search of his computer and other storage media did not turn up anything on top of admissions that Michael, 56, had already made. So, the Police strapped him to a polygraph in a bid to obtain further answers. Arguably, the investigation would have ended there without the polygraph – although it’s not entirely clear. Michael disclosed for the first time that he had communicated with children online for a sexual purpose. He said that he had seen young girls on webcam sites, and had asked them to perform sexual acts while he watched. Michael issued denials to a series of questions including whether he had engaged in physical sexual contact with children and whether he had tried to arrange a meeting with someone younger for a sexual purpose. He also denied taking any images of children for a sexual purpose or distributing indecent images of children. The polygraph detected strong deception in his answers to all of those questions. Consequently, Michael was deemed to be a higher risk than first thought and the investigation into his activities was prioritised. He was removed from the polygraph testing trial as it is for low-level offenders only.
What does this mean? Michael’s been deemed a higher risk in the absence of evidence and ‘risk’ is not an offence per se (although presumably from the material they found, they had enough to charge him anyway). What subsequently happened to Michael is unknown insofar as it is not explained in the piece.
There is an assumption that having been regarded as a ‘higher risk’, he will – at the very least – be monitored more closely than he might otherwise be, but quite where that mandate comes from legally is questionable. Even if one sets that aside, there is an assumption that resources for these support mechanisms are adequate when we know they’re not. Voluntary groups are few and far between as the general public are far more likely to dip their hand in their pocket to support another charity rescuing cuddly animals in a far away land than providing support mechanisms to support paedophiles in their community. Vital groups such as Circles UK need more support, but volunteers are unlikely to be able to ‘admit’ to being involved to many employers for fear of raising eyebrows and questions about their own motivations. It is impressive and encouraging that they do indeed attract volunteers enabling their vital work to continue.
So, we assume – wrongly – that Michael might now get further ‘support’ or ‘monitoring’ dependent upon your linguistic spin.
The broader point is, as I touched upon above, the issue of desire. An attraction to children is a social and legal taboo. Within gay culture, an attraction towards youth – and attributes we associate with it – smooth hairless bodies, androgynous bodies, smooth faces, boyish smiles, and ‘fun’ personalities come together in the twink identity. A label celebrated within gay culture and pornography, and an identity to be found in many a gay club and bar this evening as towns and cities celebrate NYE. Desiring these figures is acceptable. Even the more muscular twink can be a symbol of acceptable attraction. The diver Tom Daley is unusual in being a child that many gay men could openly admit to finding sexually arousing and not feel condemned as a paedophile. A fascinating development in itself.
Upon turning 16, even more men appeared to admit to a ‘long-standing’ attraction – which suggests attraction whilst still a child. At 17, those fantasying men -assuming Daley is mutually attracted – could now have legal sex with Daley. However, should Daley be photographed in less than his famously figure hugging trunks, his photographer would be in a spot of bother. Expect a greater outpouring of Daley adoration during the Olympics next year (Daley will have just turned 18 so nude shots will be OK should he have a trunk malfunction at the Olympics).
In the case of Michael, it is this reluctant admittance of desire that seems to have landed him deeper in the crapola than he might have otherwise found himself. The argument about child pornography is that it is a ‘record’ of a child being abused and thus to share that image is to create a market and encourage further abuse of children. Thus if you wish to stop the market, you should stop the images. You are therefore vicariously abusing a child.
Yet what of pseudo-photographs or cartoons? Bits of multiple images joined together to create a new sexual image, or using a computer or animation technology to create a pornographic image? Legally, this too is treated in the same way as a photograph. Why? The market argument is phony in these circumstances. It is instead about the policing of desire. From mental desire, to looking at an image is a step, a step to re-enforcing a mental pathway of desire. Neurons making the connection between images of youth and sexual arousal. The forging of these pathways of desire is of itself a social concern within our society.
However, our criminalisation of such desire – nobody is being harmed – is on the basis that desire is an indicator of potential future risk. It’s like suggesting that viewing a knife-block in Argos denotes you as a future knife armed murderer.
The continued introduction of these polygraphs therefore is about a significant extension in the policing of desire. Our society can not regard paedophiles as anything other than universally bad – despite our occasional admittance of widespread youthful desire, as in the case of Tom Daley – and thus the criminalisation of this desire is a logical extension that can not be argued without raised eyebrows and agendas questioned. If a government proposed the mandatory badge wearing by convicted paedophiles would it be opposed? If gas chambers for paedophiles were advocated, would they be opposed?
These are of course emotive and extreme examples but they serve to highlight the dangers of the road we are on. In criminalising desire we make black and white assumptions about our own desires; are we really that sure of our own purity?