Joan Smith: When is a child not a child?

Frenzy still surrounds Jamie Bulger's killers. But with two boys guilty of attempted rape, the consensus is they were too young to understand what they were doing

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. Two days ago, the hugely controversial trial of two boys from west London for rape and attempted rape concluded at the Old Bailey. On this occasion, the headlines – the ritual which guides our response – have been overwhelmingly exculpatory of the defendants. Despite the fact that both boys were convicted of attempted rape, the consensus is that they were too young – they were both 10 at the time of the assaults – to understand what was happening and the trial should never have taken place.

"Why were children forced to go through rape trial?" demanded the Daily Mail, a newspaper not usually sympathetic to youngsters charged with violent offences. One answer was supplied by Alison Saunders, chief prosecutor at the Crown Prosecution Service (CPS) in London, who said that the eight-year-old victim "had given a clear and compelling account to the police" which was "consistent with the medical evidence and with the accounts given by other witnesses". It should be noted here that the CPS is not exactly known for taking weak cases to court, which is one of the reasons why so few reported rapes end in convictions in this country.

I shall return to the evidence in the west London 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 a toddler, James Bulger, by two 10-year-olds on Merseyside in 1993, and the near-fatal assault on two boys in Edlington, a village just outside Doncaster, in April last year.

The horrific injuries inflicted on James Bulger have been rehearsed too often to need repetition; the attackers in the Edlington case were brothers, aged 10 and 12, who stamped on their young victims, attacked them with stones and broken glass, and forced one of them to strip and perform a sex act. Both cases prompted bouts of anguished soul-searching about "feral" youngsters, along with demands for condign punishment of the defendants. The recent return to prison of one of the young men convicted of the Bulger murder prompted frenzied demands that his new identity should be revealed, even though it's obvious that doing so would place him in mortal peril.

Neither 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 about the two west London 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 court 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. In the wake of the verdicts, this explanation found favour among columnists who suggested that the decision to take the case to trial was evidence of a massive failure of common sense.

Writing in yesterday's 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. "When did we forget?" he lamented. Around the same time, I should say, that "we" forgot the standard defence of just about every rapist who has the misfortune to find himself in court. It goes like this: I climbed in through her bedroom window, which she'd left open, and how was I to know she didn't want sex? She danced with me in a club and I walked her home, so naturally I assumed she wanted to have sex. Every single one of them believes, quite sincerely, that the victim was willing, even if she was unconscious or shouting "No!" at the top of her voice.

Indeed the most obvious explanation for the discrepancy in responses to the west London trial 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 widely 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 – pointed out by the judge when he refused pleas from defence barristers to dismiss the case – 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. His anxiety was echoed by an NSPCC lawyer, Barbara Esam, who said that many young witnesses do not understand the questions they are asked under cross-examination.

What is truly amazing about this case, however, is that there seems to have been little dispute in court about whether the girl was sexually assaulted. During legal argument which took place in the absence of the jury, one of the defence barristers admitted to the judge that "there is evidence of sexual assault and we do not dispute that".

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 questioned by police, each boy blamed the other, with one of them saying explicitly that his friend "kissed her and then entered her". The older boy admitted exposing himself and touching the girl in a sexual way. The jury listened to all the evidence and found both boys guilty of attempted rape.

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 issue as the popular press. In this latest case, it's clear that the person who suffered most during the trial was the victim – and that's an indictment of the way the criminal justice treats victims of sexual assault, regardless of how old they are.

www. politicalblonde.com