Rape is penetration without consent – isn’t it?

Another journalist gets it spectacularly wrong.

In this article, Brendan O’Neill argues that the statement “Rape is sex (sic*) without consent” is incorrect. He bases this viewpoint on the allowance in law, that the act is only rape if the man does not reasonably believe that consent is given.

There is a much more scholarly debunking of his article here. However, I’ll still give my thoughts – this is after all, the internet.

He makes the statement:

…in order for rape to have occurred, it is not enough to prove that the woman did not consent; we must also surely prove that the man knows she did not consent, or was utterly reckless as to the question of her consent, and carried on regardless.

He then goes on to say that, in order for the act to be rape, it must:

 …involve an intention on the part of the man to commit rape. The man must have a guilty mind – or what is referred to in law as mens rea – in the sense that he knows he is committing rape.

Surely that cannot be the case – if it was, then he would be re-defining rape to the extent that practically all date rape, and many cases where the perp is known to the victim are not in fact rape.

Clearly, he fundamentally misunderstands the meaning of the phrase “Resaonably believes”. He does this by turning it around, and stating that the phrase:

A does not reasonably believe that B consents.

Is the same as

A knows that B does not consent

This is a logical fallacy. There are many cases where a man does not “reasonably believe that he has consent”, where he also does not “know that he does not have consent”. Some examples:

  • He UN-reasonably believes that he has consent. For example, he has based his belief on how the woman is dressed, that she has accompanied him back to his place, that she has consented in the past….and so on.
  • He believes that sometimes no might mean yes
  • He believes that if he “presses on” she will change her mind.
  • He simply doesn’t care if he has consent
  • He is unaware of the law regarding consent (eg in the case of being too drunk to give informed consent)  – note, ignorance of the law is not a defence.
  • He may be one of the many who have simply redefined (in their own minds) what rape is
  • There are probably many other examples.

In all these cases, he might not know that he does not have consent – He probably does not believe he is committing rape, he may not have the “guilty mind”

But he is surely guilty.

A final point. Using such an innacurate argument, as education for young men on how to navigate around the legal pitfalls of sex and consent is doing them a gross dis-service. If as a result they form a legally incorrect view of what rape is, and then go on to make a horrific “mistake”, they will not find themselves with Brendan O’Neill (or anyone citing his rubbish) on the other side of the bench, but a judge with a much better idea of what the law really is.

*Also like many, good old Brendan is confusing sex with rape. Rape is not “sex without consent” because rape is not sex.

 

 

 

 

 

Having beein involved in the twitter discussions over the previous few days, I have, like some others, concluded that twitter is totally unsuitable for discussing such sensitive and emotive issues. I will not be discussing this (or any other) post on twitter. If discussion is required, I am happy to have it here, but it will be moderated (see home page)

He Reasonably Believes…

I have seen a number of tweets recently, justifying a man having sex with a woman because he “reasonably believes” she has consented.

In the face of it, this seems OK. The law does in fact say person A has only raped person B if person “A does not reasonably believe that B consents.”

However, I think that in many cases, the posters misunderstand the meaning of the word “reasonably”

The law was changed relatively recently (around 2003), to add the requirement for “reasonable” belief in addition to “honest” belief. The problem with the previous wording (honest) was that it was possible for a rapist to mount a defence based on the fact that he honestly believed that consent was given – even though it was completely unreasonable for him to believe so.

The word “reasonably” is now in place, so that the courts can decide if that belief is reasonable. It doesn’t matter if the rapist believes it to be reasonable – it is what the court decides that matters.

So:
If a women is frightened/drunk/drugged/coereced/browbeaten/tricked/etc/etc/etc into accepting the advances of the rapist, or the rapist believes he has consent because of the (irrelevant) behaviour of the victim (eg state of dress, accepted invite to room, “was all over him” etc)  the court can decide that the rapist does not “reasonably believe” consent is given, even though he may claim to “honestly believe” so.

How drunk is too drunk?

Update October 2016:
After a referral to the court of appeal by the criminal cases review commission, Evans has now been acquitted of the crime of rape. Whatever the rights or wrongs of that situation, in the eyes of the law, Evans is now innocent of the crime of rape. I leave the text below as a record of my thoughts on the case as it stood at the time of writing.

 

End of August & Beginning of September:

Another over entitled man disparaging the victim of convicted rapist Ched Evans. What followed was a tsunami of condemnation from all corners. Instead of taking stock, thinking about what was written to him, and re-evaluating his POV, he got stuck in, and launched an avalanche of tweets demonstrating an apparent lack of awareness of the issues surrounding rape, sexual abuse – and especially consent.

One question being raised over and over again is:

define “Too drunk to consent

He has been answered many times,seems to ignore most of them, but keeps repeatedly asking. It is even more strange – because he knows the answer is subjective:

@fergusboden challenge my views. Define “too drunk to consent” i’m yet to read one satisfactory answer. It’s subjective. Get it?!

Finally, in answer to my rather insistent definition:

Did you read what I just wrote? ITS A FUCKING JUDGEMENT CALL. If you dont’ want courts to reach a different JUDGEMENT from you……

……Then err on the side of caution……

He finally replies:

kids growing up in a drinks culture should make a “judgement call” of what consent is valid? Seems too vague to me.

Well, yes, because unfortunately neither women, nor men have a graduated gauge on their foreheads, with a little red line at the “too drunk to consent” point. However, the law clearly recognises that if a woman has consumed alcohol to a point where she is not able to give informed consent, and then a man penetrates her – that is rape. 

CPS Policy for Prosecuting Cases of Rape

2.7 People who have consumed alcohol may reach such a level of drunkenness that they no longer have the capacity to give consent. The courts recognise that this stage may be reached well before they become unconscious.

 

There is a good reason for this. It would be a rapists charter if all they had to do was get a woman drunk enough to be incapable, like legal rohypnol, and then simply claim she consented while drunk.

This means that yes, men (and women – if they are initiating events), you, me and kids growing up in a drinks culture ALL need to learn to make good judgement calls.

So how do we go about it? At the extremes, it’s pretty easy: If a woman is unconscious, or “out of it” then clearly she is not able to consent. At the other end of the scale, a small amount of alcohol – maybe a little tipsy, but in control of all faculties, not slurring words, not staggering or unstable – probably* heading towards the safe side of too drunk. In between – well that is where we enter dangerous territory, especially if the potential participants are not well known to one another. Get it wrong, and you are a rapist.

Edit: The Americans have a useful phrase. “Significantly Impaired” Is the person(s judgement) significantly impaired from Alcohol or drugs. If so, they cannot give a legal consent.

I’m sure most men don’t think of themselves as rapists, and would be horrified at the thought of committing such a vile crime – not to mention the personal consequences for both the woman (being raped) and the man (potentially finding himself in court and likely prison) So given the horrendous consequences of getting this wrong how about erring on the side of caution:

If there is any doubt at all, if you are not 100% certain that the woman is capable of making an informed decision to have sex with you, that that decision is not significantly altered/influenced by the consumption of alcohol, basically if you have to ask the question at all, then politely decline, and take it up another day. I read a suggestion on how to handle that situation on someone else’s blog (possibly in a comment) a few months ago. Unfortunately I can’t find it now, so cannot credit them but I’ll put it here anyway.

I’m really into you, so I don’t want to be somthing you regret in the morning. How about we cool it off now, and if you are still into me tomorrow we can <insert enthusiastic phrase of choice> then.

Finally

He seems to be outraged that somthing so important – so critical – has to be taken as a  judgement call. He seems not to recognise that this situation exists in many areas of life.

Take driving for instance. All drivers are expected to judge how to drive safely in all the conditions they encounter. In Fog, Ice, Snow, Rain, near schools, in a built up area, around vulnerable road users (kids, pedestrians, horses, cyclists), all drivers are expected to use their skill and judgement in order to drive safely. There are no hard rules to help here – the speed limits for example are just that – limits, not instructions. In many of the conditions outlined above a driver will need to be driving much slower than the limit.

Get it wrong – especially if someone is hurt as a result – and you are very likely to find yourself in court, and possibly prison.

 

* probably: it is subjective – be careful – everyone is different