In recent days, on both sides of the Atlantic, there have been not one, but two expressions of the kind of attitudes on rape you had hoped died with the Dark Ages.
First, a US Republican Senate Candidate, Todd Akin, suggested that most women do not become pregnant after being raped as their body can, and I quote, ‘shut that whole thing down’.
Then Britain’s own George Galloway, while offering his opinions on the Julian Assange case, took it upon himself to assert that certain acts of sexual violence are nothing more than ‘bad manners’, and that having sex with a woman who is asleep, and therefore unable to give her consent, could not be considered rape ‘by anyone with any sense’.
On one level, these comments are so self evidently ridiculous we could reasonably roll our eyes, whisper to ourselves ‘what an idiot’ and click on the next ‘most read’ story on our news website of choice.
The wall of disgust which has blown up online and in the media points to how unacceptable and marginalised comments like these have thankfully become.
But as marginal and unacceptable as they are, they have an effect.
The backward, misinformed myths propelled by comments like these do real damage.
They matter because these men hold, or might hold, public office which means they are not just expressing an opinion but are attempting to convince others of their views. These men seek to be law makers, and yet they proclaim as truth factual, legal and biological inaccuracies about rape.
They matter because of the chilling effect it has on vulnerable, often shell-shocked victims of sexual violence, who fail to report rape because they are scared they will be mocked, smeared or dismissed by people such as Mr Galloway.
And they matter because of the signal they send to perpetrators. What signal does this send to them? That it’s not rape as long as it’s in warm bed as opposed to down a dark alleyway? That some rapes are less serious than others, and that even after the event women have coping mechanisms to get on with it?
We will rightly dismiss them both as fools, but their comments matter because they infiltrate the debate on sexual violence. They reinforce outdated prejudices. They allow the reopening of a debate that should long ago have been won: there is no difference between ‘sex without consent’ and ‘rape’ and that is that. And ultimately they give legitimacy to those who would wilfully see violence against women swept under the carpet. Talking about rape in a manner that is both casual and callous only hampers the fight against it.
Luckily, I know that Mr Galloway is in a tiny minority inside and outside parliament in this country, and that Mr Atkin’s comments will in all likelihood cost him his election.
That we must continue to fight these falsehoods in 2012 is saddening but emboldening. I am glad that the backlash is as loud and as damning as it is. Long may it continue, because the biggest risk we run is thinking it’s no longer needed.
* Lynne Featherstone was the MP for Hornsey and Wood Green from 2005 to 2015, and served as a minister in both the Home Office and Department for International Development. She is now a Liberal Democrat member of the House of Lords and blogs at www.lynnefeatherstone.org.
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49 Comments
Unfortunately there may be an uncomfortably large percentage of people who do NOT see these comments as “self evidently ridiculous “. The fight for rights, and the fight against evil generally, is never finally won. It has to continue every day and year and with each new generation.
Sadly I agree with Richard. There is still a huge struggle against what we as liberals know to be “self evidently ridiculous”. Of course most of us can see Akin and Galloway for what they are – while they are ultimately very different characters making actually equally different points, both are frankly stupid for the way they allowed their prejudices and ill-informed views to be expressed.
However, there are others who share such prejudices and have similar unenlightened views on this and other related matters. A few minutes on twitter yesterday was all that was needed to see how many people thought #itsnotrapeif … As Lynne points out, these foolish interventions have unhelpfully reopened a debate – not a debate based on information and evidence but instead one that stems from ignorant assumptions.
Very well said Lynne.
2015 is less than three years away. Hopefully GG’s constituents will decisively vote him out. We all know that he’s a mean spirited sympathiser of Islam but his comments on rape are beyond the pale. Here’s a man who likes to project himself as a maverick in all ways, but he too is playing into this worrying trend of trivialising rape.
I do doubt that by trying to broadening the, non legal, definition of rape to include instances that have no element of violence or threat – helps the cause.
The problem I see relates not to the act, but the impact on the victim. To suggest that a women, who has had a number of sexual partners and who had consented to intercourse with her assailant earlier, as seems to be the case with JA, will have a great problem dealing with the fact that he had sex with her again whilst she was asleep, or not fully awake, does not seem to ring true.
Whereas it is possible or even likely that the victim will view her assailant in a different light, following the act, and might be deeply offended, however, to use the same word that describes a horrific act by a man or group of men against a sexually inexperienced young women seems to be devaluing the word.
In the latter instance the young women could and is likely to suffer deep psychological damage that, in effect, ruins her life – whereas few would believe this would be so in the former.
What seems to be needed is a new term to define a new crime [not ‘sex by surprise’] – the equivalent of theft as compared to robbery. If this is not done, there is the possibility that it will be acceptable, in the not too distant future, to introduce someone as a rapist at polite dinner parties!
>To suggest that a women, who has had a number of sexual partners and who had consented to intercourse with her assailant earlier, as seems to be the case with JA, will have a great problem dealing with the fact that he had sex with her again whilst she was asleep, or not fully awake, does not seem to ring true.
It’s about FORCING yourself on someone, John.
I’m sure you like a drink and if I invited you to my house and offered you a beer, or drink of your choice, you’d accept.
If you later fell asleep and woke to find me pouring a beer down your throat, would you thank me? Enjoy it?
You do realise it is possible for a husband to be charged with raping his wife?
A lot of the trouble is that women are pressured, from teenage years on, into ideas such as “if you really love me, you’ll do this” and “if you are date-raped, it must have been your fault in some way”.
And indeed, “if you have sex with someone, it entitles them to do it again without asking you”.
The difference between being date-raped and dark alley raped is that in the former, you’re not in terror of being murdered afterwards. But it can still destroy your trust in people, your self-confidence, and generally mess you up for a very long time indeed.
John Roffey
No-one is trying to broaden the term. It’s really quite simple. To have sexual intercourse with someone without their consent is rape. Try to imagine what that must feel like and resolve never present yourself on the internet as an ignorant fool again.
I agree that, depending on the circumstances, what Julian Assange did could constitute rape.
But the operative phrase here is ‘depending on the circumstances’- this is more of a grey area than in some cases, and anyone who denies this is being wilfully silly.
For example, without intending to be too graphic, if you are a man and were awoken by a female partner fondling you or caressing you, would you necessarily consider that rape or molestation?
How about if the same kind of thing is done to a female partner by a male partner, on (as in Assange’s case) it crosses what could be considered a red line and goes further, but the female partner reciprocates in this instance and thinks nothing of it?
I think these suggested situations show that whilst what Julian Assange did may be considered rape, and most definitely was foolish considering his relationship with the person involved, in another situation it might not be considered rape?
@ Cassie & AndrewR
Why don’t you try reading my post and responding to the suggestion I have made – rather than reaching for the insult box before you have understood my proposal?
“whilst what Julian Assange did may be considered rape …”
I think you mean “what Julian Assange is alleged to have done”.
Also, as far as I am aware, Julian Assange was not infact accused of ‘rape’ as such but of molestation. If this is the case, then it certainly makes the people calling all those defending ‘rape apologists’ seem a bit silly since under no legal definition would he be a rapist, not that he hasn’t done anything wrong or condemnable.
Also worth pointing out that just saying ‘sex with someone without their consent is rape’ is a tautology and not particularly meaningful. The problem (at least in the cases of people who do not see what they do as rape) isn’t so much that potential criminals disagree with this definition of rape, but that what exactly constitutes ‘consent’ is not
specified or indisputable. Obviously ‘consent’ does not usually refer to explicit consent, or else everyone would have to say to each other ‘do you want to have sex?’ (and maybe sign a form saying yes) every time they have sex for it not to be rape. So consent is implicit. There are certain conceivable situations in which the rapist may incorrectly presume the consent of the victim, but where in similar circumstances the victim may have offered tacit consent. Treating rape as something simple and easily definable will not help us to combat it.
1. I didn’t insult you.
2. Your effect, if not your intention, is to suggest that only some rapes are serious. Which trivialises others.
I think you’d find judges when sentencing consider the degree of force, fear etc used.
The CPS here and no doubt the equivalent in Sweden could charge someone with indecent assault if they felt the
incident could not be classed as rape.
Rob >but the female partner reciprocates in this instance and thinks nothing of it?
If she reciprocates, it’s consensual.
Sorry, the first bit of my reply was to John.
To Rob: if you are asleep, you can’t consent to anything.
@cassie
“Rob >but the female partner reciprocates in this instance and thinks nothing of it?
If she reciprocates, it’s consensual.”
Again, without intending to be explicit, what I am referring to is the act itself. What I believe Julian Assange stands accused of is commencing the act whilst his partner was asleep. At the time, again from my understanding, she did not withdraw her implicit consent but neither gave it explicitly. Whatever the case may be, he began the act without her consent. It is not inconceivable that there may be other cases where a sexual partner begins an act without their partner’s consent, but it is either reciprocated or not considered a violation by their partner…. would such cases be rape, simply due to the fact that the ‘offending’ partner began the act without consent?
Over on George Potter’s blog I brought up the example of a wife treating her husband by waking him up in the morning with oral sex. If we don’t consider this to be assault in any normal circumstances (including if he didn’t want it because he was going to tell her thatr day he was leaving her), then we need to make sure what we are saying about consent, implied assumed explicit, implicit takes this kind of thing into account if as a political party we presume the right to legislate about others.
By the way, the example above is about a husband and wife, but I don’t think it changes so much (except much more likely to actually happen) if it is about a woman treating her new boyfriend. Others may disagree.
The BBC has some helpful info … http://www.bbc.co.uk/news/magazine-19333439
@Rob
Read the EAW or the Court Ruling on BAILII and you will see he is in fact accused of rape.
http://www.bailii.org/ew/cases/EWHC/Admin/2011/2849.html
Para 3 sets out the offences noted within the EAW and Para 115 onwards explain both the Swedish Law and the fact that an English Jury would be entitled to consider the circumstances rape.
Rob,I think the best way to combat rape would be if sex education in schools focussed, for boys and girls, on boundaries and so on (maybe it does these days?).
>but it is either reciprocated or not considered a violation by their partner…. would such cases be rape,
Isn’t that a bit like the tree falling in the forest with no one there? The CPS are only going to prosecute if the woman files a complaint.
Personally, if my partner woke me that way,he’d probably get a smack in the mouth. Waking to find even someone I have a good and long-term relationship with feels like a gross intrusion. (He knows this!)
I think it would be wise for any man to establish how the woman feels about such things before trying it. Without being explicit, you’d ask how someone felt about say handcuffs. Establish the boundaries and don’t try anything the other person might not like if you’re not sure and they, being asleep, can’t tell you.
The whole asleep, consent, explicit consent thing gets complicated in a relationship because spontaneity’s and affection is involved. But in those situation no one is saying stop.
The problem in cases like that of Assange is that you’re talking about accusations and denials. IMO an accusation should never be enough to convict anyone of anything. Rape like any physically abusive crime is horrible but still needs actual evidence. The idea that you don’t is where I think I rape has been politicized. Yes we know rape convictions are too low,. Yes we know the after effects are long term. But what this means is that what is needed is a system that allows victims to present evidence without stigma . The problem, as I see it, , runs a little like this, Imagine for a moment that you were beaten up. You don’t report it to the police immediately and then X number of weeks later you go to a police station and state that on the night of so-and-so this happened and this is the person who did it, I doubt very much that you would get a conviction. It’s irrelevant whether it’s true or not, because the evidence is long gone, The understandable desire to right historic wrongs should never trump evidence. Otherwise you’re talking about hearsay.
Now George Galloway is plainly talking out of his backside, but it does not alter the fact that in the Assange case there is no real evidence of anything beyond the assumption that he is not a nice man. Convictions have to be based on evidence otherwise your convicting people because you don’t like them,
What Cassie says here is very wise “It would be wise to establish how…. feels about…. before trying it” This surely, for any couple, but especially in early days of a relationship, in both directions, so that both sides are happy, is useful. There can be cases where partners show their feelings (positive or negative) very physically, and it is at this point where tolerance is needed to ensure things don’t get out of hand. Because excitement can and does run high (he says, stating the bleedin’ obvious!) Sex tends to be a bit spontaneous also.
But I think both Rob and Cassie see the definite distinction between an accusation of rape which starts from a consensual couple situation – a very definite sexual situation – and, say, at the other end of the spectrum, a rape carried out for purely power reasons, eg by invading militias of local women, or gang rapes. I don’t have a problem with them all being rape, as defined, but I think I would have a definite problem with a similar sentence being passed in both cases.
I do think that we are going over the top in trying to say rape is rape is rape. Rather similar to the idea that all murders should attract a life sentence.
This is actually almost a grey area concerning Assange and his actions and does have wider ramifications on society. If the woman woke up to find Assange trying to have sex with her, is this rape even though she gave prior consent for sexual intercourse? I am inclined to think in a situation where the two people are not close and don’t know one another well that it is a form of rape, yes. But on the other hand, where do you separate such things? What time limits do you legislate for? I have, myself, been married for nearly 12 years. I’m going to be a bit personal here and say that quite often I have awoken to my wife, erm, “performing” on me in an attempt to wake me up for a shag. On the other hand, I have done the exact same to her. Sometimes she’s up for it, sometimes she tells me to go the f*** to sleep. Is this rape? Is it illegal molestation to try to stimulate your partner in their sleep when they have previously given consent? Or must consent be given every time in every relationship before any sexual activity takes place?
In the Assange case, it almost seems obvious that if he was asked to wear a condom and refused, that is sexual assault at the least. But if he “tried it on” with someone who had previously given him consent while she was asleep, can we all honestly say that is a rape comparable to a woman who is brutally beaten, raped and left for dead?
I actually don’t know where I stand on areas which may be grey. Of course I am 100% against what we know as violent rape, or forced sex with no prior consent of any kind. Obviously one must always give consent in sexual activities, but does consent have to be given every time, for eternity, in those who regularly engage in sexual activity with one another? Is attempting to arouse a sleeping woman who you had sex with a few hours earlier, in hopes she might be up for round two, considered rape, comparable to violent predators?
To call this ‘sexual violence’ is perverse..
If you need some help understanding why it is perverse of you to say that, have a look here.
http://couchtripper.com/rapedbysoldiers/
John Roffey, rob, Simon B all sum it up perfectly. It is utter nonsense to claim that all acts that might technically be rape under the law are as bad as each other.
It seems self-evident to me – as someone who has experienced the Assange situation but not, thank god, the dragged-down-an-alley type – that they absolutely are not.
Ann: “It is utter nonsense to claim that all acts that might technically be rape under the law are as bad as each other.”
Who is saying that?
A lot of Assange apologists here who seem to believe they know exactly what was going on at the times these alleged offences occurred. Was Assange broadcasting a live web-feed on Wikileaks at the time?
The comments by Glenn and John just above sum up my thoughts on this. Thank you.
An imbalance of attention is given to the future of the perpetrator and not enough in my opinion is given to making the survivor’s future better.
Cllr Mike Becket,
UNtil there is e a conviction there is no perpetrator, there is only an accused. This is the problem when crimes get politicised, There is a pressure to convict on moral rather than evidence based grounds.
It does seem it is impossible to discuss these things rationally for fear that not expressing it quite right means condemnation of the sort Lynne starts with. Simon Bamonte probably does as well as can be done – in a good sexual relationship there must surely be some spontaneity, and thus also some times when one person does something the other does not like. Now, there is nothing more killing than an instant “stop that now”, so it might be instead somewhat later “darling, I really don’t like it when you …”. The idea that there is absolutely no spectrum at all, just an atom-thick dividing line between an act of loving togetherness and an act of pure brutality seems to me to be nonsense.
On Todd Akin, advice for those seeking conception is that it is more likely when intercourse takes place in a relaxed and stress free environment. The corollary to that is that the opposite applies. It seems to me Akin was trying to say something like this. It’s probably not a good idea even to try and say it in a debate on this issue, because a reduction in the chance does not mean no chance at all. The danger is obviously that it can be misinterpreted as implying “it isn’t a rape if it results in pregnancy”. However, I confess I do feel a little bit of sympathy for him as I know what it’s like in a heated debate to try and say something, what you intended comes out wrongly and it’s impossible then to get people to see what you really meant.
@Glenn
“it does not alter the fact that in the Assange case there is no real evidence of anything beyond the assumption that he is not a nice man. Convictions have to be based on evidence otherwise your convicting people because you don’t like them”
Unless you have evidence to share to the contrary Sweden should be viewed as a democracy with an established legal system which, like our own, is designed to allow a fair trial. From what I have read there is a case to answer. If it fails because of the reliability of the prosecution witnesses or a lack of evidence then Assange will be found not guilty.
As yet Assange’s lawyers have not denied the issues as presented, they have tried to state that they would not constitute a crime in the UK, something the Court has ruled against them on. The political dimension has mainly been through Assange himself. The smokescreen of a potential US extradition (which would always have been easier from this Country) is being used to avoid allowing the courts to decide his guilt or innocence.
@Tim13
” do think that we are going over the top in trying to say rape is rape is rape. Rather similar to the idea that all murders should attract a life sentence.”
Murderers do all get a life sentence in this country. The difference is the tariff (set by the judge) is decided taking into account any mitigating or aggravating factors and the exact circumstances of the crime. This then decides when they will become eligible to be released on license. The license will be in place for the rest of their life. In a similar way there is no problem with rape being a simple definition, the same process occurs when the judge will decide the actual sentence from a defined range. Clearly there would be mitigating factors in cases such as some describe above but aggravating ones where violence / under age victims / the abuse of authority etc are involved.
Some people seem to be very confused about the meaning of consent.
A good way to illustrate the meaning of consent is to apply it to jumping out of a plane.
If you consent to jumping out of a plane – with a parachute on a sky dive – you might quite enjoy it.
If someone then forced you onto a plane (perhaps while you were asleep) and then pushed you from a great height without protection, you would quite rightly see it as a violent crime.
So we can see that consent may differ depending on the situation, and that consent is essential.
Steve Way
Fair enough. I’m not really that interested in the Assuage case. I’m more concerned about the politicization of crimes to point were statements are presented as proof. Currently a lot of us are uncomfortable with extraditing people for trial in the US which is also a democracy with a long established legal system. Our own legal system seems perfectly cable of sending people to prison based on them saying stupid things in the public domain because it is politically convenient.
I just find it troubling that we seem willing to abandon normal measures of evidence when it either suites a government or hits the right nerve in progressive thought to treat that crime differently than any other crime. If Assange was being accused any other kind of crime, with only retrospective statements being presented as evidence would many liberal minded people be so willing to send him for trial? I don’t know the case that well and I don’t believe in conspiracy theories,. But as, I say, it just makes me uncomfortable for the same reasons locking up rioters that didn’t actually riot and detaining Islamic extremists on the basis of what they may or may not have planned makes me uncomfortable.
@John Roffey – the impact on the victim, degree of violence or threat used and other factors would be taken into account by the judge in sentencing. They do not affect whether a rape is a rape or not. It is impossible to characterise the impact rapes in deifferent circumstances will have on different people. One person might suffer a violent rape and get over it more quickly than another person who is raped while asleep by someone they have previously consented to have sex with. The key point is that every individual has an absolute right to decide whether they want someone else to stick part of their body into one of their orifices. How many sexual partners they have previously had or the degree of violence or thrteat used to coeser them is irrelevant to this key point.
@Simon Bamonte – you raise some good points. A key part of the law about rape and sexual assualt is about consent. You have a defence against a rape charge if you can show that you had reasonable grounds to believe that consent had been given. A number of the factors you use as part of your examples would be evidence for this.
@Ann – arguing that rape is rape is not the same thing as arguing that all rapes are ‘as bad as each other’. There are two stages of the legal process in this respect – establishing with an accused poerson is guilty or not, and, if they are guilty, sentencing them. The circumstances around the crime affect the sentencing but not the guilt.
@Matthew Huntbach – “The idea that there is absolutely no spectrum at all, just an atom-thick dividing line between an act of loving togetherness and an act of pure brutality seems to me to be nonsense.” Is anyone saying that? Arguing that there is a clear definition of rape – one person penetrating another without consent – is not the same thing as saying that all consenting sex is ‘an act of loving togetherness’ nor that rape is ‘an act of pure brutality’. The dividing line is, however, perfectly clear. If the person who has been penetrated consented then it is not rape, if they did not consent then it is rape. Whether it can be easily proven is another matter, and there clearly are cases where one person has reasonable grounds to believe they had consent even when they didn’t. The law allows for that.
@ Liberal Neil
I think if you read my proposal you will see that, under the existing law, my concern is that the term rape is in danger of being devalued – so I would like to see a different crime defined where the primary issue in question concerns consent – which is not the case with the traditional view of rape.
I am also concerned that there will be men branded as rapists, purely as the result of a misunderstanding.
Many thanks Lynne Featherstone for such an excellent article.
Matthew: “On Todd Akin, advice for those seeking conception is that it is more likely when intercourse takes place in a relaxed and stress free environment… It seems to me Akin was trying to say something like this.”
A study two years ago suggested that stress might reduce the chances of conception by 12%, but the effect was not found to be statistically significant so it is unproven. This is an interesting enough piece of biological information, but it in no way mitigates the utter crassness of Akin’s remarks. Even if pregnancy by rape were an impossibility – so what? Why should that make any difference whatsoever to my attitude towards rape?
John: “To suggest that a women, who has had a number of sexual partners”
Er, relevance please?
“…and who had consented to intercourse with her assailant earlier, as seems to be the case with JA, will have a great problem dealing with the fact that he had sex with her again whilst she was asleep, or not fully awake, does not seem to ring true.”
You need to meet more women. Even if a woman consents to sex ten minutes earlier, that in no way reduces her right to decide whom or what is allowed to enter her body at any particular moment. This may well cause frustration and annoyance for the odd man, but frankly he has other methods of release at his disposal so we shouldn’t feel too sorry for him.
As usual with JA’s apologists, you completely gloss over the condom business, which is a serious aggravating factor.
Simon B: Much of what you say is sensible, but you spoil it by saying that Assange is accused of having “tried it on” with a sleeping woman. Actually, the most serious allegation (which none of us here know whether is true or not) is that he did actually insert his member into her while she slept. This goes well beyond trying it on. “Trying it on” is clearly not rape (though it may be sexual assault) and I am not aware of anybody suggesting that it is.
@ Stuart Mitchell
Stuart, there seems to be a difficulty here to understand that my original post was intended to be a proposal for a change in the law – summarised in my last post.
I think as a twice married father of five, including three daughters, your comment about needing to meet more women does not stand up to scrutiny. The condom use is a separate issue – my post concerned, what I see as, a significant difference between a violent forced rape and one that primarily concerns whether consent was given.
Can you focus on the proposal I have made objectively and respond accordingly?
It is worth pointing out that JA has not admitted any of the accusations made against him. Such admissions and/or denials would only come at trial. The legal argument made on his behalf is that if all the allegations were true they would not amount to an extraditable crime and that is what has been rejected.
Many people who argue for different categories of sexual crime presently included in the English crime of rape, including many women, do so in the belief that convictions would be easier. Listening to debates on the subject I have been impressed by the weight of argument on both sides.
In my view, there is an argument that the hypothetical circumstances discussed above dont amount to rape and that labelling them as such trivialises the offence ; and it is not helpful to characterise somone who holds that view as a fool, even if you dont like their politics.
Akins case is different. He did not just express an opinion, he made a factual assertion which was wrong and attributed it specifically to professionals in the field whom he had consulted.
@John
“I do doubt that by trying to broadening the, non legal, definition of rape to include instances that have no element of violence or threat – helps the cause. ”
There have been legal discussions I’ve read about redefining the rape/sexual assaul spectrum of offences but I’ve never been massively persuaded than any will be better.
What your statement above – and the whole “rape with violence is worse” idea – doesn’t recognise is that rape is in and of itself an act of violence. I would actually incline to the view that a “non-violent rape” by a (formerly) trusted partner might actually be worse because of the breach of trust involved.
The problems relating to convictions are largely around issues of evidence rather than law – and it often being one persons word against another’s with no witnesses either way. I remember speaking to a Judge who said that he didn’t see the same issues with child sex offences as with adult ones – primarily because the issue of consent was absent in child cases.
>John
“I do doubt that by trying to broadening the, non legal, definition of rape to include instances that have no element of violence or threat – helps the cause. ”
If you steal a frozen chicken from Tesco, you will be charged with theft.
If you steal £100,000 from your employer, you will be charged with theft.
The sentence, if you are convicted, will reflect the severity of the crime. As it does with rape.
Do you think calling the shoplifting ‘theft’ devalues the other crime in some way?
Where would spiked drinks fit in? Another, separate charge?
If the victim has no memory of what happened to her,and therefore finds it easier to recover from, does that make it a minor offence?
Hywel, Most of us in this discussion have no problem with the accepted single definition of rape. When a crime, or a breach of trust is carried out by a close friend or relative, people’s reactions differ. I am sure this occurs in rape, as with theft, fraud, assault etc. In some cases, a report would be made immediately to the police, all the way down the spectrum to no action at all.
Of course, when you are let down, criminally or otherwise by someone close, it can have a much more devastating psychological effect, but in the light of your comments, does that mean, in your view, that the closeness and psychological harm created by this criterion should be regarded as an aggravating factor, increasing the sentence ? Or would you go with the “objective seriousness” of the crime (degree of physical force, financial effect etc)?
Yes – I can’t see a reason why that couldn’t be an aggravating factor in sentencing – but on the abuse of trust angle rather than the extent of psychological harm. That’s because your looking at the act rather than its consequences – if you do the latter then you could end up in the situation where a “mentally strong” victim meant a lesser sentence.
I’d be fairly surprised if it wasn’t – similarly or a breach of trust being an aggravating factor in theft cases (but its too late to look it up in anything authoritative). Sentencing isn’t just based on the objective harm caused (eg premeditation).
(I also think you’ve asked an interesting question which I might change my view on if I think about it more!)
2 Cassie
‘If you steal a frozen chicken from Tesco, you will be charged with theft.
If you steal £100,000 from your employer, you will be charged with theft.
The sentence, if you are convicted, will reflect the severity of the crime. As it does with rape.’
But if you went to Tesco and threatened to hit the cashier with an iron bar if she did not hand over cash from the till – you would be charged with robbery – not theft.
It is this threat of violence that I believe should separate rape from situations where the primary issue is consent, as it is elsewhere [including Sweden].
http://www.bbc.co.uk/news/magazine-19333439
Clearly the law can operate under the existing definition. However, I do believe that with this being so broad the term ‘rape’ is being devalued. Also, whereas this broad definition may satisfy those women who have battled on this issue – it is too harsh with regards to men as some will be branded ‘rapists’, purely as the result of a misunderstanding.
John >But if you went to Tesco and threatened to hit the cashier with an iron bar if she did not hand over cash from the till – you would be charged with robbery – not theft.
That isn’t down to making it sound more serious. It’s down to sentencing limits.
The sentencing options open to judges for robbery are stronger than for theft.
The sentencing limits for rape give judges enough discretion already:
http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/s1_rape/
As for ‘misunderstanding’: ignorance of the law is no defence against breaking it. So ignorance of someone’s wishes is a pretty thin defence for not taking the effort to wake them up and ask them.
A good line in the page I’ve linked to:
‘All the non-consensual offences involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim’s consent or without giving due consideration to whether the victim was able to or did, in fact, consent. ‘
@ cassie
I have tried my best to explain why I believe force or the threat of force needs to be involved if the term rape is to maintain its ‘very serious crime’ status and this will not be so if it is used in cases where the question of consent is the prime consideration.
I suspect this is the reason why in Sweden & Germany this is the case and where the word ‘rape’ is used in the US it also must include force or the threat of force.
I believe this is a case where the law is an ass – but I accept that I am not going to convince you that this is so.
@John Roffey
Have you actually read the BBC article you provided a link to? You seem to have missed this bit :-
“Unlike Germany, helplessness of the victim – where there is no force used – means it can still be rape [in Swedish law]”.
I agree with the Swedish and British definitions of rape. Your argument is just a semantic one and doesn’t strike me as important.
Even if one accepts your argument that rape should only be called rape if enabled by “violence” or “force”, that could still encompass the penetration of a sleeping woman without prior consent, depending on how one defines “violence” and “force”. See for instance the first paragraph here :-
http://en.wikipedia.org/wiki/Violence
Though I am sure you will have your own definitions of “violence” and “force” which exclude this kind of appalling treatment of women.
Incidentally, for those who missed the Assange thread a few days ago it’s worth pointing out that John Roffey believes that Assange should not face trial because, quote, ” I cannot view the resolution of his apparent crime as being even close to the importance of his work [with Wikileaks] continuing for as long as possible – even if this does upset the womenfolk.”
@ Stuart Mitchell
I hadn’t expected to post on this subject again here. As you will see I had accepted that I would not change Cassie’s mind on the subject – despite making my best efforts. My view was supported by others, probably because it was based on reason – although I am sure Cassie would make same claim. Sometimes you have to accept that you cannot persuade another to your view and they unable to persuade you to theirs – then you have to simply agree to disagree.
I also do believe that Assange should not go to Sweden to face the charges for the reasons set out on that thread. However, I am astonished that you should see fit to bring that matter onto this thread – since it was quite a different argument. I am almost tempted to ask if your post was truncated and the Nah-Nah, Nah-Nah Nah was missed off!
Stuart Mitchell
A study two years ago suggested that stress might reduce the chances of conception by 12%, but the effect was not found to be statistically significant so it is unproven. This is an interesting enough piece of biological information, but it in no way mitigates the utter crassness of Akin’s remarks
I am not saying Mitchell’s remarks were not crass. They were quite obviously crass. All I am suggesting is that he probably half remembered something like this, and in the heat of the debate it came out in this incredibly crass way.
My concern is that fear of saying something crass is leading to a situation where on some matters one has to stick completely to the politically correct line, even if that line has some assumptions which it would be useful to question.
Liberal Neil
@Matthew Huntbach – “The idea that there is absolutely no spectrum at all, just an atom-thick dividing line between an act of loving togetherness and an act of pure brutality seems to me to be nonsense.” Is anyone saying that?
Yes, that is precisely what is being said, with anyone who questions it being accused of being in the dark ages etc.
Sorry, my experience of relationships is that there is not always a clear yes/no dividing line. I am not necessarily talking of sexual things here, but being in a relationship does mean pushing against each other (I don’t mean physically), give and take, sometimes one person does something s/he doesn’t really want because the other has acted a bit stroppily about it and so on.
Of course I’m absolutely clear that when “No” is said on a sexual matter it means that, but what about “Yes” (but thinking “don’t really want to, but if it keeps him/her happy …”?). Or “hmmph” meaning “please let me sleep, but I don’t want to cause a big row, so just get on it with and be quick”?
It looks to me that Assange was clearly on the wrong side of the dividing line in this case, though he deserves a fair trial to prove it or not. My argument is purely that the dividing line is somewhat more than an atom thick, and that it is illiberal and shutting down necessary debate to accuse anyone who makes that point of being some sort of savage dark ages brute.
John > As you will see I had accepted that I would not change Cassie’s mind on the subject – despite making my best efforts.
And vice versa! Agree to disagree is fine by me.
Matthew
>but what about “Yes” (but thinking “don’t really want to, but if it keeps him/her happy …”?).
‘Yes’ =consent. However unenthusiastic. ‘hmmph’ should probably tell you ‘the pleasure will be all yours,’ but it is consent.
But do you think your example is likely to be followed very often by the person going to the police and accusing the partner of rape?
Facing interrogation by the police to establish if there’s a case, giving evidence in court? Having your sexual history questioned by a defence barrister whose job it is to rip your credibility to shreds?
I’m not commenting on Assange at all. That is strictly for the judicial system to deal with.
John Roffey: “I am astonished that you should see fit to bring that matter onto this thread”
I did so because it is clearly relevant. This thread is about outdated attitudes towards rape and the way that some people trivialise it. The quote I gave was a good example. Given that you have put yourself out there by contibuting a large number of comments here, it was perfectly reasonable for me to draw attention to your own attitude expressed in the other thread, for the benefit of those reading this thread who may have been unaware…
Matthew: “My concern is that fear of saying something crass is leading to a situation where on some matters one has to stick completely to the politically correct line, even if that line has some assumptions which it would be useful to question.”
That’s a fair point, but Akin is a terrible example. What he said went far beyond straying from the “politicaly correct line”; it was factually unsupported and utterly foolish. He deserves all the condemnation that has come his way, as does Galloway.