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Jury’s out on morality of trying children in adult courts

Rituals are comforting: they create a sense of togetherness and help people cope with traumatic events. But they are not universally benign, as recent events in the criminal justice system attest.

Three days ago, the hugely controversial trial of two boys for rape and attempted rape concluded at the Old Bailey. On this occasion, the headlines have been overwhelmingly forgiving of the defendants.

Despite the fact that both boys were convicted of attempted rape, the consensus is they were too young — they were both 10 at the time of the assaults — to understand what was happening and the trial should not have taken place.

I shall return to the evidence in the present case in a moment, but first I want to point out the extraordinary inconsistency of public responses to instances of child-on-child violence.

Two other cases come to mind in this context: the abduction and murder of James Bulger by two 10-year-olds on Merseyside in 1993 and the near-fatal assault on two boys in Edlington, outside Doncaster, in April last year.

Neither public forgiveness nor the possibility of rehabilitation has played a role in either case, while the public assumption has always been that the youthful perpetrators knew exactly what they were doing. That seems to include the ghastly sexual assaults which featured in both cases, whereas the consensus in the present case is that the boys — who were identical in age to the children who attacked James Bulger — is that they were too young to understand that some kinds of sexual behaviour are wrong.

This was the argument advanced in their defence, namely that a consensual game of ‘doctors and nurses’ had been blown out of all proportion and turned into something much more sinister. Writing in The Times, the former Director of Public Prosecutions, Ken Macdonald, argued that games of ‘You show me yours and I'll show you mine’ happen in every playground in the country.

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Indeed, the most obvious explanation for the discrepancy in responses to the present case and others involving child-defendants is that the former has been seen primarily as a rape case, with all the baggage that that involves.

As in any adult rape trial, the victim was questioned to the point of exhaustion, the seriousness of the assault played down (just ‘doctors and nurses’) and the outcome seen as unfair to the defendants.

Press reports of the case focused on the victim changing her story under cross-examination, placing little if any weight on the fact that she had been entirely consistent in her account to police and doctors before the trial.

Mr Justice Saunders said he was unhappy about the way such a young child had been treated in the witness box and asked for a report on potential psychological damage to the girl.

What is truly amazing, however, is that there was little dispute in court about whether the girl was sexually assaulted.

On the day of the attack, the victim's mother was alerted by a five-year-old boy who told her that the two defendants were “doing really bad things” to her daughter.

When quizzed by police, each boy blamed the other and the older boy admitted exposing himself and touching the girl in a sexual way.

There is a question in my mind about the morality of trying children in adult courts, but the public mood is as inconsistent on this.

It's clear the person who suffered most during the trial was the victim — and that's an indictment of how the criminal justice treats victims of sexual assault, regardless of how old they are.

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