Rape: trials can make the situation worse

In dealing with some rape allegation, adversarial trials cannot provide justice.

The rape of adult women without physical violence is usually unprovable beyond reasonable doubt, unless admitted, witnessed, caught on CCTV, or the victim was not compos mentis at the time of the intercourse. Juries in practice ask themselves the questions: Given what we've heard, whom do we believe, and do we want to send this guy to jail? In this way rapists are often let off, and some innocent men are imprisoned.

Many rapes and sexual assaults are unreported. A few that are reported are false allegations. Others are cases for which public criminal trials with long jail sentence hanging over the defendant (or to some degree the accuser, if the allegations are proved to be false) are not appropriate. In particular, I have in mind cases in which what started out as consensual sexual acts between the parties were followed by non-violent non-consensual ones. And when cases of this kind end up in criminal courts, the logic of the situation will force the woman to say that she did not consent to any of the sex, while he, for his part, will say she consented to all of it. Both may lie; and at least one party will be humiliated for life with little justice done.

Would there not be a case for a private judicial arbitration, particularly in cases where accusations of non-violent rape arose out of what had started as consensual sex? The party deemed to have done wrong would apologise, perhaps be required to attend a rape awareness course and and/or pay compensation. Many more women would come forward; and many more men would admit and confront what they had done.


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Offensive opinions: challenge but don't censor

Labelling an opponent's argument offensive does not win an argument

It is becoming increasingly common to find commentators both on the web and in face-to-face discussion arguing in the following way. A point is made with which they disagree – for instance one critical of religious belief or concerning the definition of rape – and the commentator feels that his or her opponent’s argument can be dismissed simply by labelling it offensive.

What the commentator is de facto saying is that the “offensive” argument simply shouldn't exist. The logic is that if the allegedly offensive argument, which contradicts his or her own views, is taken away, then the remaining argument is strengthened and legitimised. That is not so.

No argument can be deemed illogical, incorrect or morally wrong simply because somebody else finds it offensive. Labelling an argument “offensive” only says something about the people using that label, namely that they don’t like it. It does nothing to qualify or demolish the allegedly offensive opinion.

At one time people found it offensive to suggest that the world was round, or that the earth circulated the sun; their feeling of offence couldn't change a fact. At one time a majority of people found homosexuality offensive, but their bigotry couldn't prevent the development of the idea that human beings, whether gay or not, should have rights.

Nobody should be prevented from saying something simply because someone else finds it offensive. Offensive opinions (and of course they exist) need challenging, but that is not done simply by labelling them offensive.


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Dominique Strauss-Kahn: case dropped

The 23 August 2011 saw New York prosecutors drop sexual assault charges against Dominque Strauss-Kahn. Whether non-consensual sex had taken place was doubtful.

If Dominique Strauss-Kahn's relations with Nafissatou Diallo, the alleged victim, were consensual, then they are rightly the business of nobody else. It neither reflects well nor badly on DSK as a politician.

The inability of Diallo to tell a consistent story to prosecutors was the cited reason for the collapse of the case; but it seems that there are problems even in the best version of her story.

First, why was she in his executive suite at all? Imagine a male cleaner being in the room when, say, Angela Merkel emerged naked from a shower.

Second, “hot bunny” DSK may be, but for him to come out of the bathroom, then unexpectedly to come across a middle-aged cleaner and jump on her before she had the chance to leave the room! Well this is possible, but I suggest unlikely.

Third, DSK appears to be 62 year-old in the best of health. Yet for him to force a woman in the prime of her strength to have oral sex strains the imagination. Surely Mrs Diallo could have used her jaws to defend herself, and DSK would have known that.

No-one except DSK and Diallo will ever know the truth of what happened, but certainly Mrs Diallo’s accusation seems to have several "holes."

Issues Involved in Rape

In May 2011 remarks by Justice Secretary Ken Clarke and the Conservative MEP Roger Helmer threw the issue of rape into the headlines.

Behind the sloganising, allegations and denials, there two issues of substance. First, are some rapes more serious than others? Second, can a woman be responsible for her own rape?

The definition of rape varies between jurisdictions, but the essence of the crime is something like this: the offence of rape is committed when a man uses his penis to penetrate another person when he has no reasonable grounds for believing that his victim has consented. Though men can of course be raped, the main focus of discussion is on female victims.

The issue of whether some rapes are more serious than others contains a confusion in the way the question is posed; i.e serious for whom? If, however, we are talking in terms of the severity of legal sanctions that ought to be imposed on the rapist, then the focus must be on the degree of his wrong-doing.

The slogan “rape is rape” does not provide an answer. In the same way one could say “theft is theft” or “assault is an assault” without becoming any the wiser. Measuring the degree of wrong-doing by the perpetrator of a crime is in every case dependent on the circumstances in which the crime was committed. That is not to suggest there are circumstances in which a rape is committed, but that there is no crime.

One further confusion needs to cleared up. Some want to argue that violence, kidnapping, drugging, etc of the victim are aggravating factors. But this is a red herring because these are additional crimes occurring in conjunction with the rape; they are not intrinsic to the crime of rape.

The question then is this: do some acts of penetrative sex, when the perpetrator has no reasonable grounds for believing that his victim has consented, amount to a lesser or greater degree of wrong-doing depending on the circumstances in which they occur?

There is a strong feminist voice which says no, but I disagree. There are any number of factors (e.g. the age of rapist) which could aggravate or mitigate the crime, but I want here to mention the most important. I believe the degree of wrong-doing is still great but less when a rape occurs after the parties have started intimate sexual activity.

Turning now to the second issue of whether a woman (or indeed a man) can be held responsible for her own rape, my answer is emphatic, no. Rape occurs when when the perpetrator has no reasonable grounds for believing that his victim has consented to penetrative sex. The prior behaviour of the victim is irrelevant.

Confusion arises in discussions about victims causing their own rape because some people mix up a factual cause with an act of wrong-doing. Quite clearly if I leave my wallet on a seat in a station waiting room and it is stolen, my action was a cause of the theft, but there is no element in wrong-doing in my action. A woman can dress and act in a certain way which may be a factual cause of her rape (i.e. if she hadn’t done so, the rape would not have occurred), but there is no act of wrong-doing on her part.

I believe the points above are obvious and should be acceptable to most people. A great disservice is committed by those feminists who respond to any discussion on the issue of rape - apart from those parroting slogans such as “rape is rape” - with the response that the commentator is excusing rape. That is simply not true.

Is the undercover cop, Mark Kennedy, guilty of rape?

In Britain an undercover police officer, Mark Kennedy, infiltrated the environmental movement and became a leading "activist" from 2003 to 2010. His job involved information gathering and acting as an agent provocateur.

During that time he had sexual relations with several women in the environmental movement. Whether his prime motivation was to have sex or to gain information, it is clear that his relationships must have provided him with information for his police handlers.

It’s an interesting point that if a woman is used to carry out a honey trap against a male the issue would rightly surround whether using a honey traps was justified in the circumstances. If the aim were merely to gather information about protest groups, it would not be.

I cannot imagine the male arguing that he was subject to non-consensual sex because he did not know the woman was a police agent.

I understand that the women is rightly angry, and if the woman met Kennedy again she might be forgiven for spitting in his face. But is is guilty or rape - or even a sexual assault - definitely not.

The Kennedy case reveals, I believe, criminal behaviour on the part of the police, but talk of rape and non-consensual sex is an irrelevant diversion.