09 December 2005

Crime: Rape

The recent controversy relating to rape was triggered by the Amnesty International poll, which found that 34% of respondents in the UK said that "a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner."

The obvious problem with the poll is that we don't, as a society, have a widely-shared coherent view of what "responsibility" in this sense actually means. The question could be interpreted in very different ways, just on that one point.

I suspect what many of the 34% meant is "behaving in a flirtatious manner increased her risk of being raped", which is probably true, but is not very interesting or important.

Alternatively, some may have meant "behaving in a flirtatious manner is something which should be generally discouraged, because of the increased risk of rape". That is a more significant claim, and a more controversial one. It still doesn't lead very far in terms of policy, however.

Slightly stronger would be to mean "behaving in a flirtatious manner is something women should be punished for, because of the increased risk of rape". (Someone believing that may or may not feel that actually being raped is sufficient punishment.) That is quite an extreme claim, very much at odds with the publicly acknowledged values of our society. I would be very surprised if many people in this country, outside of some third-world immigrant communities, believed that.

A more interesting interpretation would be, "A rapist should be punished less severely if his victim was behaving in a flirtatious manner, because she shares some of the responsibility". I could believe that there is a genuine, substantial difference of opinion in the country over this question.

Indeed, there are two reasons why a man might be considered less responsible for rape as a result of the woman's behaviour. The first is provocation: effectively that in certain circumstances a "reasonable man" might be expected to commit the offence and therefore should not be held responsible. The second is consent: might certain behaviour of the woman be reasonably interpreted as consent, even if not intended that way.

On the question of provocation, as I said, I belive a substantial minority might feel that "behaving in a firtatious manner" or "wearing sexy or revealing clothing" might at least partly reduce the responsibility of the rapist. I would have to disagree with them myself, however. I think that a "reasonable man", as the legal formulation has it, is quite able to restrain himself from raping even flirtatious or attractively-dressed women. (This is a question of fact, and open to dispute with evidence, but my conclusion is based on the behaviour of reasonable men as I have observed it). On that basis, I feel that a man who chooses not to restrain himself should be held entirely responsible. (That is a question of morality). If an unreasonable man is genuninely unable to restrain himself from raping flirtatious women, then he is dangerously insane and needs to be treated as such. (establishing such inability is a difficult technical question which I will not deal with).

On the separate question of consent, I think it can be generally agreed that none of the behaviours asked about in the survey (including "having many sexual partners" or "being drunk") actually constitute consent to sex. The question as to whether the man could reasonably believe a woman consented, when in fact she didn't, gets murky, however.

I think I can see a way through it, however. From the point of view of a potential trial, there are two unknown facts. One is whether the alleged victim actually consented to sex. The other is whether the alleged rapist believed she consented to sex.

The first is quite difficult to establish, but it is essential to do so to get a conviction (and rightly so - if she consented, she wasn't raped. If you can't prove she didn't consent, you can't prove she was raped. If you can't prove the crime, the accused cannot be convicted).

Assume the court has established that the victim did not consent. If the court, sitting presumably weeks or months later, can establish beyond reasonable doubt that there was no consent, it seems to me entirely reasonable to assume that the accused, actually present and participating, must have been at least equally able to do so. Bear in mind that "reasonable doubt" is not sufficient reason for him to get on with it - if unsure or indifferent to consent, it is still rape. One could imagine some fairly far-fetched situations where a man might be genuinely mistaken, but as a general rule, if the evidence in front of him does not indicate lack of consent, it's hard to see how a court could be convinced otherwise.

In summary, I don't draw any conclusions from the survey results, because the questions were too vague for the answers to be useful. There is possibly a serious disagreement on some substantive points, between a section of the population and Amnesty International, and if so I am in agreement with Amnesty.

The survey produced a lot of fuss, but one of the more interesting responses I saw was a circular that has gone round several blogs, including the disillusioned kid. It first makes the point, correct if a little obvious, that there wouldn't be any rape, however women behaved, if men didn't commit rape. It then goes on to say: "Don't tell your women friends how to be safe and avoid rape." That's a remarkable statement. Recall my post before last: in general, the biggest cost of crime is the cost of avoiding it. "Our whole way of life is conditioned by the need to make crime difficult, in ways that are so ingrained that they're difficult to notice."

There are a few reasons the original author of the circular might have made that request. One is if he or she doesn't believe that a woman's behaviour has any effect on the risk of her becoming a victim of rape. While it's true that no behaviour is completely safe, I think that's a severely inaccurate view. Possibly, the author considers it a question of priority: that effort spent encouraging women "to be safe" would be more effectively employed encouraging men not to commit rape. That's a coherent argument, but as I said, we take considerable precautions to protect ourselves from all crimes, because we generally believe that it is effective. No-one has said that we shouldn't audit companies' books, because the effort would be better spent encouraging people not to commit fraud.

Priorities aside, it might be that effects to encourage women "to be safe" have an adverse effect on the behaviour of men. I think this is probably what the author meant. It might be that a mass of voices saying (correctly) that women are more at risk of rape if they behave in certain ways might be interpreted by some men as meaning they are not doing something so bad if they rape a woman who is "defying" this advice. If so, then it may well be a bad thing that this advice is so prevalent.

This is rooted in the very first thing I talked about, the confusion over the meaning of responsibility. There is a notion that responsibility can be "shared", which I think is fundamentally misleading. We each make our decisions in an environment that has been made mainly by other people, but to judge any decision, legally or morally, we have to take that environment as given. Many people might have responsibility for any bad outcome, but they have it separately, they do not share it. We might put ourselves at risk of all sorts of dangers, from other people or from other elements of our environment, and if we are wise we will consider our own responsibility as we do so, but if we are the victim of a criminal, his responsibility is not lessened by our risky behaviour. If people are unclear on this point, then that is where we need the "education" that Amnesty and others call for, not telling potential victims untruths about what their risks are.

In this cause, the Amnesty survey itself is "part of the problem" - by talking casually about "responsibility" without discussing what it means, it is actually encouraging the sloppy way of thinking "flirting is dangerous, so it means it's not so bad if I rape her" that it aims to put a stop to.

1 comment:

Disillusioned kid said...

Interesting post. A few points: reasonable doubt isn't really the issue in arguments about consent following the intriduction of the Sexual Offences Act 2003, which requires (if memory serves) that the defendant had taken reasonable steps to establish consent.

As for the ""Don't tell your women friends how to be safe and avoid rape" meme, I think the point, as I suggested in my post, is that many of the "solutions" suggested here serve to control women (don't go out alone, stay in after dark, don't get drunk etc.). Furthermore, they're largely irrelevant. The vast majority of rapes are committed by people who knew the victim. The usual advice is based on the threat of "stranger rape."

Thanks for the link btw.