November 25th, 2005

lady face

Rape and Law

I believe that women should be allowed to flirt with people without having to have sex with them.
I believe that women should be allowed to walk down dark alleys without having to have sex with people lurking in them.
I believe that women should be allowed to wear skimpy tops without having to have sex with people that see them in them.
I believe that women should be allowed to get drunk without having to have sex with the person they're drinking with.
I believe that women should be allowed to spend hours dancing with someone without having to have sex with them.
I believe that women should be able to kiss someone all over and rub oil into their skin without having to have sex with them.
I believe that women should be able to give someone a blow job without having to have sex with them.
I believe that women should be able to start having sex with someone, change their mind, and stop halfway through.
I believe that women should be able to have sex with someone, and not have to have sex with them ever again.
I believe, when you get right down to it, that women should be allowed to decide whether they want to have sex, and nobody else should be allowed to make that decision for them.

You really fucking ought to be able to file this under "things you don't have to say, because they're so bloody obvious" - I mean, how simple is "You can't have sex with someone unless they want to." ?

And yet, 34% of people don't think this is true, according to this ICM survey that's been linked to recently.  Various people were shocked by it, and I commented on a couple of their journals, agreeing that it was horrifying that (for instance) 5% of people think that a woman walking in a deserted area is _totally_ responsible for being raped.

So, yes, I'm not in favour of rape.  Those people who are surprised by this have obviously not been paying attention.

However....

I believe that presumption of innocence is a vital part of the justice system.  We must assume that people are innocent unless evidence of their guilt is provided, beyond reasonable doubt.

Put two people in a sealed room and have them disagree, when they came out, as to what was said and done while they were in there.  You can work out certain things using forensics, but you can't work out what the intent was, nor what was said between them.  If the disagreement comes to a court of law, you're left with two witnesses to the possible crime, and the knowledge that one of them is lying.  Unless there's strong circumstantial evidence, this leaves room for lots of doubt, which means that you can't convict.  Beyond Reasonable Doubt" doesn't mean "On the balance, it seems more likely that he did it."  it means "A reasonable person cannot find any reason to doubt their guilt."

This morning, a few papers reported that a man has had rape charges against him dropped after a woman couldn't remember if she'd consented or not.

Now, the law is clear - an unconscious woman can't give consent - and the default position is _non-consent_. So if she'd been unconscious, it would definitely have been rape.  And at some point during the proceedings she was at the very-least semi-conscious.  However, the man claims that she did give consent.  And she doesn't remember if she did, or not.  So it's not even his word against hers - it's his word against "maybe".  He says "She said yes" and she says "I don't know what I said."

Now, you could claim that if she doesn't remember, then she was so drunk she couldn't give consent.  But you can't necessarily tell, at the time, whether someone is going to remember something the next day.  I've had long involved conversations with drunk people that they couldn't remember the next day.  Heck, I've had drunken sex with two of my girlfriends that they couldn't remember the next day.  In both cases, I'd have sworn blind that they'd had a few drinks but they were still lucid.  And besides which, the law doesn't say "drunk", it says "unconscious".  I can't think of a way of phrasing a law that would make it a crime to have sex with drunk women - competence is a very tricky thing to judge, and unless you had a psychologist there at the time, to probe the person and find out how incompetent they are, it's not going to be an easy call.

This is a _horrible_ problem - you cannot make it impossible for people to claim that there was consent, and you cannot tell which person is lying (well, we don't have reliable tech just yet).  Short of saying "in the case of rape, the presumption is of guilt", I really can't think of a solution.  And once you start presuming people are guilty you end up with something even worse than terrorists being held for 90 days "Just in case".

There's a fantastic scene in A Man for All Seasons, where Sir Thomas More is debating the law with another character, Roper:

Roper: So now you'd give the devil the benefit of law?

More: Yes. What would you do? Cut a great road through the law to get after the devil?

Roper: Yes, I'd cut down every tree in England to do that.

More: Oh, and when the last law was down and the devil turned 'round on you where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down - and you're just the man to do it - do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.


In the case in question, I can't think of any way of _proving_ beyond doubt, that he definitely raped her.  I think it's _likely_ that he did, and I agree that it's terrible that he goes free.  But I've wracked my brains, and I can't think of any way of sending him to jail for it, short of starting chopping away at those trees.
Illuminati

Victory not Vengeance

Went to see VNV Nation last night, with octopoid_horror and dalglir (and also bumped into neferet).  Support act SITD were ok, but nothing special.  The headline act, on the other hand, kicked serious arse, were consumate showmen, and left me on a complete high.  The sound system crashed halfway through the first song, so Ronan kept the audience happy with some amusing banter (and told a _terrible_ joke about Kylie, Robbie Williams and Elton John) - he's got a great friendly stage presence.

And some lyrics, from the closing song (Beloved):

It's colder than before
The seasons took all they had come for
Now winter dances here
It seems so fitting don't you think?
To dress the ground in white and grey

Moments lost though time remains
I am so proud of what we were
No pain remains, no feeling
Eternity awaits
Grant me wings that I might fly
My restless soul is longing
No pain remains, no feeling
Eternity awaits
Illuminati

Responsibility

This is inspired by the comment here, where ladysysiphus says "If you have consumed enough alcohol to impair your judgement, I believe you then have to take at least some responsibility for putting yourself in a position where something like this might happen."

A woman walks, scantily clad, down backstreets in an area known to be unpleasant. How responsible is she for being raped?

Totally responsible
0(0.0%)
Partially responsible
18(28.6%)
Not at all responsible
45(71.4%)

Andy walks, MP3 player in one hand, mobile phone in the other, down backstreets in an area known to be unpleasant. How responsible is he for being mugged?

Totally responsible
0(0.0%)
Partially responsible
24(37.5%)
Not at all responsible
40(62.5%)

Andy walks into a seedy Glasgow bar and says in a loud, clear, _English_ voice "It's so nice to be here in the North of England." How responsible is he for the violence that ensues?

Totally responsible
12(18.8%)
Partially responsible
30(46.9%)
Not at all responsible
22(34.4%)

Whilst on Holiday in India, Andy goes for a wander in the nearby woods, despite being warned that there's a tiger in the area. How responsible is he for being eaten?

Totally responsible
28(43.8%)
Partially responsible
30(46.9%)
Not at all responsible
6(9.4%)

Andy takes a shortcut across a clearly marked building site. How responsible is for a brick falling on his head?

Totally responsible
26(40.6%)
Partially responsible
27(42.2%)
Not at all responsible
11(17.2%)