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The accidental rapist

Early sexual experiences are often drunken, awkward and regretted - yet ministers want to criminalise them, says Stuart Waiton

Kathleen Marshall, the Children's Commissioner, pointed out at a conference on internet safety last year that one of the dangers of introducing new grooming legislation for the internet was that young people who go on chat lines and arrange to meet one another may end up being wrongly labelled as paedophiles. This was a good point, as it is not too difficult to see how an 18-year-old boy who chats up and arranges to meet a 15-year-old girl may be labelled as a sex offender if an anxious adult gets wise to the developing situation.

Professor Marshall hoped that the law would be sensible enough to distinguish between this act and that of a paedophile. But the law is a pretty blunt instrument and, when the principles of law are altered, it often runs the risk of criminalising the wrong people.

Take for example the creation of the Sex Offenders Register, which resulted in a number of young people being labelled as sexual offenders, with a Home Office review noting that teenagers were being placed on the register for "little more than youthful sexual experimentation".

The most recent change in the law relating to sexual offences is the Sexual Offences Act (2003) in England and Wales - a development that could soon arise in Scotland following a protracted period of discussions within the Scottish Executive about potential changes to the legislation dealing with rape.

This new act in England changes the fundamental basis of law by making it the accused's responsibility to prove his innocence, rather than be proven guilty. The alleged rapist must now show that he took reasonable steps to ensure that a woman consented to sex, where previously the burden of proof was for the accuser to show that this was not given. As a Home Office spokesperson said: "Giving consent is active, not passive and it is up to everyone to make sure that their partner agrees to sexual activity." How this should be proven by the men in question is unclear.

The Government also plans to launch a pound;500,000 advertising campaign to tell "young men" that they risk being charged with rape unless they are sure their sex partner has consented. This focus on young men is telling and worrying, and relates to a further aspect of the law - the capacity of the woman to consent to sex.

For example, further changes in the rape law are being considered that would require judges to decide whether a woman who has consumed too much alcohol is too drunk to give her consent.

Talk of young men needing to make sure that a woman has agreed to sex to avoid accusations of rape, of ensuring that a woman has not drunk too much so that she can consent, suggests the law has more to do with drunken behaviour than with rape. After all, how many rapists thought they were just "lads having fun"? Yet that is the phrase used by Home Office Minister Fiona MacTaggart to justify the need for an advertising campaign.

For any parent of teenage boys, who will no doubt discover drink and sex soon if they haven't already, this new law is worrying. Early sexual experiences are often drunken, awkward and regretted - but this is not rape.

However, promoting the idea that it is runs the risk of encouraging young women (and their parents) to take the "offending" man to court. If the grooming scenario and the Sex Offenders Register are anything to go by, get ready for a steep rise in the number of teenage "rapists" in the next few years.

This new law in England will criminalise many young men. However, it also degrades women. In the past, it was the sexists who would say that women were frail, incompetent and needed protection. Today, it's feminists and new Labour who have this degraded view of women who, they believe, are incapable of consenting to sex while drunk.

For the sake of both Scotland's young men and women, this law should be resisted north of the border.

Stuart Waiton is director of

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