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accused rapist aquitted: drunkenness and consent March 30, 2009

Filed under: law,rape,Uncategorized — brynhild @ 7:36 pm

Peter Bacon, from Kent, was acquitted of rape this week. The 26-year-old chef was charged with rape after a sexual encounter with a 45-year-old lawyer who was heavily intoxicated and blacked out. She woke up with Bacon in her bed, not knowing what had happened. The most thorough report of his version of events (the only version offered, as she could not recall it) that I’ve been able to find has been in The Times, three days ago.

Mr Bacon had visited the woman’s home after a friend invited him. He said he had met the woman twice before and she had been drunk both times. That evening, the trio consumed around five bottles of wine before Mr Bacon and the woman found themselves alone.

Mr Bacon, who denied rape, said: “We were talking and her head was close to mine. She smiled and said, ‘You’re quite young, aren’t you?’. I thought she was giving me the come-on.

“Then, when we started kissing, she did not say no. There was never any indication of her saying, ‘What are you doing?’. She had plenty of time to say, ‘Oi!’.”

Kerry Malin, for the prosecution, told the court that the woman, who cannot be named, was so drunk that she could not remember Mr Bacon arriving. The next morning, she had shouted: “It’s because of b******s like you that the law has been changed,” referring to a 2007 Court of Appeal ruling that someone who is drunk may not be capable of giving consent.

(NB. ‘Oi!’ in british slang translates as something like ‘hey, what’s going on!?’)

Bacon apparently went directly from the woman’s home to the local police station to give a statement. The woman’s blood alcohol was tested that morning and found to be over twice the legal drink-drive limit.

Over at Talking Philosophy, there’s an interesting discussion underway regarding how to characterise events like this where both the (alleged) victim and the (alleged) attacker are intoxicated (as seems to have been the case here). Obviously you can see from the Times excerpt that–big surprise–much is being made of the fact that the woman was heavily intoxicated, and known to be often heavily intoxicated. ie., she was a binge drinker and brought it upon herself. The Daily Mail even reports that she described herself as a “social binge drinker”, as if this is relevant. Shockingly (not), no mention is made of Bacon’s usual drinking habits. But I must admit that I’m actually not clear on how to understand this. In the Talking Philosophy discussion, several people are asking questions on the order of “if she’s not responsible for saying ‘yes’ because she was drunk, why is he responsible for believing the ‘yes’ while drunk?”, and more to the point, “if her drunkenness invalidates her consent, then why does it not his as well? Why is he an attacker where she is a victim?” These don’t strike me as easily-answered questions. Nor does the question of what drunken (but apparently clear and unequivocal) consent amounts to. The woman’s evidence in her defence was, in part, that she is “fussy about the men I date. I’m quite a snob.” Ergo she could not nor would not have consented to intercourse with this man. In my home town, it would be called “beer goggles”: finding someone more attractive under the influence of alcohol than you would in the sober light of day. Is beer-goggle-induced consent consent? Does what she “wants” when drunk count as what she wants? Or does the fact that she has said ‘yes’ to someone who she would soberly not have done only show that she was unable to properly consent?

On a slightly related note, Barbara Ellen of the Observer implores us to drop the term ‘date rape’:

‘After all, what other serious crimes are trivialised in such a way? Anyone ever heard of “date murder”, “date fraud”, “date theft”?’

What do you think? (Thanks, Rob, for the link.)

 

55 Responses to “accused rapist aquitted: drunkenness and consent”

  1. Deborah Says:

    There’s a case here in South Australia where the judge has given men who had “consensual sex with a drunk underage girl” reduced sentences because y’know, she consented. Even though South Australia’s rape laws specifically say that “consent” given while a person is heavily intoxicated is no consent.

    That’s a bit different from the case you’re discussing here, where both people are definitely over the age of consent. But if he was sober, or had only had a few drinks, and she was riotously drunk, then it does look like rape to me.

    As for cases where both people are drunk… I dunno. Must head on over to Talking Philosophy.

  2. Butterflywings Says:

    Drunken unequivocal consent is one thing.
    Being too drunk out of your head to say yes or no is another.
    Men can’t physically have sex if they are so drunk as to be incapable of consent.

  3. Tricky Says:

    This is something I don’t get – if a women is really really drunk and doesn’t say NO in a positive and clear way it is assumed that she is available for sex i.e the default is; if she is out in mixed company getting blind drunk she is there for sex unless she states otherwise (hopefully with a witness). The onus is on her to prove she didn’t consent.

    I wonder how this would play out if a guy was out getting legless with his footy mates and in the small hours of the morning one of his mates decided to “have sex” with him – cause he didn’t actually state he didn’t want to …

  4. Carl Says:

    ‘After all, what other serious crimes are trivialised in such a way? Anyone ever heard of “date murder”, “date fraud”, “date theft”?’

    On the one hand, that is a pretty strong point. On the other hand, how bad was what happened to this woman comparatively speaking? Certainly, it was bad. Indeed if he had an STD or got her pregnant or whatever, it would be catastrophic. But if the only consequence of the encounter is something that she can’t remember happening… Well, it’s still bad, and certainly we want to have strong anti-rape laws to prevent people from starting down the slippery slope, but in this case, should the man’s life be wrecked for such a hard-to-pin-down harm to the woman?

    In a way, I wonder if the feminist issue couldn’t be turned in the other direction: in a patriarchal society, (non-domestic) rape is bad, because those men sleep with “our” women and make us cuckolds. But in a society where we don’t fear bastardy or indeed sex itself, how bad is it to have not entirely consensual but neither done at knifepoint (which is really a form of torture as much as it rape) sex?

    So, I think the term date rape is good, because it lets us express the fact that the situation is a little bit grey (at least, compared to the horror of stranger rape), but still really bad.

    Of course, this is a really fraught area, and it’s dangerous for me to talk out of turn if someone who has more experience with the situation has something to add to it.

    —-

    Another question in this case is if the man *purposefully made himself more drunk* just in order to avoid the question of consent. I’m not saying that it happened, but if it did, it would add another wrinkle to the situation.

  5. Brandon Says:

    I take a strongly Mackinnon-like line on this: cases like this one show that consent is not an adequate concept for protecting rights in sexual matters, and in particular it should be regarded as irrelevant to the question of rape. But that’s certainly a controversial view.

  6. Nathaniel Chandler Says:

    I, like Brandon, follow, to some degree, MacKinnon: As I see it, the language of consent is neither necessary nor sufficient for the communication of “real desire for collaboration”–it’s easy to think of situations (either hypothetical or known) both in which there was no consent and yet was this real desire for collaboration and, on the other hand, in which there was consent but where this real desire was absent.

    What is necessary is authentic intersubjectivity, is for a person (me) to actually take in and understand (though not study) the way in which a situation is for the other person as (and to the extent that) they reveal it to the first person (me). Even in such an idyllic situation however, there will always be room for misunderstanding. But perhaps if we are trying to make clear the way in which the situation is (at the moment, non-statically) for us, we can help to reduce miscommunication.

    This specifically doesn’t address the legal issue raised here. But that’s not accidental. I don’t know how to legislate compassion.

  7. jerry Says:

    If you are saying she is not responsible for her actions when drunk and he is responsible for his actions when drunk, then you must agree that women are frail creatures that should not be permitted responsibility in society. They cannot protect themselves, they cannot be responsible for what they drink, and it is a man’s responsibility (her father or husband) to protect her.

    You guys are sexist pigs.

  8. jj Says:

    Jerry, you could do with a good course in logic.

  9. extendedlp Says:

    brandon and nc, mackinnon’s take on the matter certainly does seem useful in this case. i’m not familiar (i know i know, how can i not be!?), so if anyone feels like elaborating on her claim, please do.

    tricky, i don’t think the man (if we believe his story, mind) assumed she was available because she didn’t say ‘no'; i think that’s an unfair oversimplification. surely he thought she was available because–at least apparently–she made a move on him; kissed him back; seemed to be involved with and enjoying the act; etc.

    butterflywings: it’s not clear that she was so out of her head as to not be able to utter the word “no”. one needn’t be that blithering to experience a blackout, esp if one binge drinks often. also if one binge drinks often, one learns to hold it together a bit even when quite intoxicated. (anyone who has an alcoholic in the family will be familiar with this one.) so, even if she was in fact too drunk to _mean_ ‘no’, as it were–that is, too drunk to be able to make a reasonable decision about what she was doing–it’s not guaranteed she was falling down drunk.

    i’m not trying to defend this man. i just want to make the discussion as objective as possible because i think these are tricky issues that need real (non-knee-jerk) answers.

  10. Brandon Says:

    There’s an interview with Mackinnon online in which she summarizes her idea (the interviewer is a complete idiot, but it’s still possible to get the idea). Mackinnon thinks that coercion is really the key idea; consent might be a good way to handle the question of coercion if it had stable meaning (and if it were really pinpointing women’s choices rather than presumptions society makes for them, which she has argued elsewhere is really what consent ends up being in law: not the woman’s own actual consent but a statement of social norms about a woman’s relationships and roles — you can see this very clearly in the case in the post), but it doesn’t and can’t under conditions of systematic inequality.

  11. extendedlp Says:

    thanks for the link, brandon. so, given what you’ve read about this case, what would you suppose mackinnon would have to say about it?

  12. Brandon Says:

    It’s hard to say. I think Mackinnon would say that in a better society than ours, it wouldn’t be a question of whether the woman said Oi, but a question of whether Mr. Bacon took reasonable steps to guarantee that he wasn’t coercing her or harming her. And, of course, since we don’t in general think about rape that way, nobody focuses on the sort of information that would be needed in order to decide that question; thus we lack what we need to decide the matter. Perhaps he was, in fact, as decent about the matter as could be; perhaps she was, in fact, raped; since all we get is information about her consent, we don’t have the right information to say. And, indeed, we don’t even really get much information about her consent, because the question of consent ends up actually being a question of whether she should be presumed by society to have consented, and this is precisely one of the reasons Mackinnon doesn’t like consent in these cases, because it is the language of freedom, but in fact what women consent to is already decided and enshrined in the laws.

  13. extendedlp Says:

    sorry, i feel like i’m badgering now, but can you think of examples of what sort of information would help to decide? (i have just enough time to badger you; not enough to listen to the interview until later in the week. lucky you!) i’m just not getting a sort of concrete understanding of what the position would be. and of course i want to ask, even tho we probably don’t have enough information (eg we don’t know what his level of sobriety was) to answer it: does she need to have taken reasonable steps to make sure she isn’t coercing him, as well? (i can see where the answer would be ‘no’, and that ‘no’ would fall out of facts about societal gender inequality, etc. but i’m still curious to know.)

  14. extendedlp Says:

    btw i forgot to say: thanks to rob for pointing this story out to us!

  15. Brandon Says:

    I can’t presume to speak for Mackinnon on specifics; I don’t know the finer details of what she wants in a rape law, only her general argument about the need for a change. But certain basic questions would probably need to be answered: Did he pressure her? Did he even take the trouble actually to make sure that she wanted it rather than presuming that she did? Did he even make any attempt to determine whether her behavior was due to drunken confusion, which, after all, is a drugged state even if a legal one, and therefore one that facilitates coercion? Was she harmed? If she was harmed, is there reason to think it purely accidental rather than either deliberate or negligent? Things like that.

    As to whether it goes both ways, I think Mackinnon would allow that it could in the abstract. (In this particular case there doesn’t seem any hint on the part of anyone that she might have raped him, so it wouldn’t arise as an issue at all, even as an abstract question.) In the concrete, though, that is, in practice, recognizing social sexual inequality means that the two directions are not in fact the same, and don’t (except, at most, in some extreme and unusual cases) involve the same harms and violations, and so shouldn’t be treated as if they were the same. (That’s one of Mackinnon’s standard criticisms of liberal thought: it’s all well and good in theory, but putting it into practice requires pretending that there are equalities that just don’t exist yet.)

  16. Matt Says:

    “Men can’t physically have sex if they are so drunk as to be incapable of consent.”

    Unless you think that one must be on the edge of being unconscious to be unable to give consent, this is not so. Also, it’s perfectly possible to be drunk enough to not remember what happened the next day and still do all sorts of physical things, like drive home. (Real drunks do this all the time, unfortunately.) It’s hard to know from the available facts how relevant this is to the case, as we don’t know well what she said or did, or what he said or did. But it’s perfectly possible for a man to be drunk enough that it’s unreasonable to attribute the normal mens rea for rape to them and yet for them to be able to have sex. This might lead us to think that rape should be a strict liability crime or something like it. That seems wrong to me, too, but it’s a possible position. It needs to be clearly argued for, though.

  17. hippocampa Says:

    Thanks for the link to that interview, Brandon. Read it all, then came across “Story of O“, which I read years ago (the link is to the wiki article on it, not the story itself), and then hopped on to Andrea Dworkin‘s say on that story.
    Fascinating. Off topic though.
    Although, maybe not. O does consent, but it’s still rape in my view. Both MacKinnon and Dworkin have a good point, I think.

  18. Monkey Says:

    Really interesting discussion. Thanks for the links and comments, Brandon and Hippocampa.

  19. hippocampa Says:

    Something has been nagging me for the past few hours, namely, that I do think that O, whilst consenting, got raped, and my intuitions about the case of the lawyer and chef (and har har having a chef with the name of bacon) actually say that this woman did not get raped.
    I have been trying to put my finger on that. MacKinnon has an excellent case about consenting (see the interview that Brandon posted, and yes, the interviewer is an idiot).
    However, in this particuluar case we seem to have two people on rather equal footing: they are both drunk and I am assuming neither was attracted to the other very much when sober, so both looked through “beer goggles” (love the term) and so they ended up having sex and, on waking up, not being so wild about that.
    Why is it that the guy is wrong in here?
    It seems to be that it is just because we think the penetration of the body is invasive, I think it is, but we have determined that this invading is a hostile act.
    It so happens with human beings (mammals in general, some birds, though not all, and quite some insects, etc.) that it is biologically so arranged that the sexual act entails that the male sticks his organ into the female.
    It seems a bit unfair that ceteris paribus in this case, the guy is the perpetrator and the girl the victim, just because biologically, things work that way.
    IF it had been the case that because of this act of intercourse, the reputation of the woman had been shot, her chances in life diminished etc etc as happens in conservative communities, things would have been different, but then you don’t have ceteris paribus, since in such communities, guys don’t suffer from those repercussions.
    Fascinating.
    Meanwhile, this young man Bacon’s name has been slandered and the lusty lawyer remains anonymous.
    Frankly, I rather incline to thinking she’s been taking advantage of him rather than vice versa; not so much with the sex as well as in dragging this out in the open and making a case of it. It seems a nasty case of bullying to me.

  20. Jean K. Says:

    Thinking aloud, and not having read MacKinnon, and not being an expert on rape law….

    However you define what rape is, it seems axiomatic (so to speak) that two people can’t rape each other. So rape can’t just involve failure to obtain consent, or failure to establish intersubjectivity, or whatever. If two people fall into bed totally drunk, neither does that, but it seems bizarre to think they raped each other.

    So some sort of asymmetry seems to be involved. When there’s rape, there’s an initiator, and the initiator has a special burden to ascertain permission. Maybe this is what makes alcohol count differently for rapist and victim. (That asymmetry is what continues to bug me here…)

    An initiator has an extra burden, and isn’t excused from it because he/she is drunk. There’s no burden like that on the other party. So accountability will fall on a drunk initiator, but not on an equally drunk non-initiator. The drink doesn’t stop it from being the initiator’s fault, but it was never remotely the other’s fault to begin with.

    This only seems sexist because men more often than women play the role of the drunk initiator, but if it makes good conceptual/moral sense, then it isn’t!

  21. jerry Says:

    You have no idea what happened in this case. The woman admits she frequently gets drunk, she admits she has no memory of what occurred, and she wants you to believe that because she wouldn’t go to bed with this person sober, she wouldn’t if she was drunk and hence she was raped.

    And on that, you folks spin your theories of how the guy was a rapist or probably a rapist and all the things he should have done.

    This is not a question of philosophy, this is a question of sexism, and sexist justifications to abuse and oppress another sex.

  22. jj Says:

    Jerry, you are reading your negative fantasies re feminists into this discussion.

  23. Nathaniel Chandler Says:

    Jean K, while I agree with you in the cases that you discuss (where one party is clearly _the_ initiator), I think that situations like this are not the most common. Rather, I think that, more commonly, initiation is a mutual process. Even when one party is significantly more intoxicated than the other, I don’t think that it is common for only one person to be the unique initiator. I’m not suggesting that the initation is commonly exactly symmetric when both parties are intoxicated (or when one party is more intoxicated than the other), but I don’t think that that’s the case all that frequently when both parties are sober.

  24. Nathaniel Chandler Says:

    Actually, it is quite possible that I am mistaken about what is common. But I think the more interesting and difficult questions arise in cases where initiation is not totally one-sided. (The answer to the question “what is the right thing to do?” in those other cases is quite clear, it seems.)

  25. jerry Says:

    Here is the story of a drunk woman who was killed when she held a gun to her head and pulled the trigger.

    http://blogs.thenewstribune.com/crime/2009/03/31/tacoma_woman_playing_with_gun_kills_hers

    My question for you feminist philosophers, who should be charged with her murder?

  26. jj Says:

    Jerry, given your description, the woman was not murdered, so the question “who murdered her?” does not apply.

    At this blog we encourage cooperative discussions, and we discourage people who stir up disagreement for the sake of it. Please read “Our policies” before you post again.

  27. x. trapnel Says:

    (X-commented from bamber-dot-blogspot):

    I don’t have a serious problem with ‘having sex with a drunk person’ being a strict liability thing – so long as only the people involved are able to initiate a prosecution (this missing element is part of what’s so wrong with those ridiculous prosecutions of teens for sending naked pics of themselves). I think Ian Ayres had some similar suggestion about this once. IIRC, the Dutch had a similar policy for 12-16 y.o. sex – illegal, but only if the adolescent wants to prosecute. A decent compromise. I do feel that much of the both-people-drunk (& even some one-person-drunk) sex that happens makes the world better rather than worse, but then, in those cases there’s no incentive to press charges. What’s at issue is when things go bad; that’s when legal rights matter.

    The bottom line is that – even moreso than most laws – the optimal rape law, whatever it happens to be, is going to have to strike a tough balance between false positives and false negatives, due to a combination of epistemic limitations (esp. w.r.t. personal testimony) and our deeply misogynist culture. We need to acknowledge up front that there’s going to be a big gap between the institutional design answer and the question of responsibility/culpability in each particular case; heck, we might not even want the institutional process to even *consider* the variables we think actually determine the ethical answer, because of evidential / procedural considerations.

    Anyway: just because a given not-so-morally-culpable act might be classified as rape under a given legal definition doesn’t mean that definition is unacceptable–it depends both on how it sorts out in practice and on what the feasible alternatives are. And guys who are worried that women they sleep with will wake up wanting to press charges against them–will want them *locked away in prison*–should perhaps rethink their ways, *regardless* of what the law says. I mean, come on.

  28. jerry Says:

    Hi jj, thank you for pointing me to “Our Policies”. In the spirit of our policies, let me ask you why you were so presumptuous, and nasty to me earlier, telling me about the contents of my head re my “negative fantasies re feminists.” I would imagine as a philosopher you would understand the danger of your placing your own thoughts inside MY head. In point of fact, for 35 years now, I have considered myself a feminist.

    I am trying to approach this empirically. In other accounts the woman involved admits to not remembering anything that happened. Even in the account you linked, the headline is that she didn’t remember what happened.

    She said it was rape because she would not have willingly had sex with him-but she cannot remember any of it.

    My question for you all is that given she cannot remember anything that happened, how can you even begin to contemplate that the man who claims to remember and claims there was consent didn’t do enough?

    This is why I said earlier, that your claims seem to be that women are frail and unable to be responsible for their actions when drunk and need men to protect them. Hardly a feminist stance.

    The point regarding the woman who accidentally killed herself is relevant. That’s an account of a woman who was so drunk that she held a gun, shot herself, found the gun unloaded, loaded it, and then shot herself for real.

    How is *that* account any different from what the woman here did? Why aren’t the others at the home being charged with murder?

    If the woman here was not responsible for her actions while drunk, and if the Peter Bacon was responsible for determining just how drunk she was, why aren’t the others at that home responsible for the death of the woman who shot herself? If they aren’t responsible, how can you claim Peter Bacon was responsible?

  29. George Says:

    “But in a society where we don’t fear bastardy or indeed sex itself, how bad is it to have not entirely consensual but neither done at knifepoint (which is really a form of torture as much as it rape) sex? [...] So, I think the term date rape is good, because it lets us express the fact that the situation is a little bit grey (at least, compared to the horror of stranger rape), but still really bad.”

    Carl – what do you mean by “not entirely consensual”? If it’s ‘just’ all rape that occurs without the explicit threat of violence, then you are treading on very dangerous ground.

    Moreover, there is a political motive for moving away from the idea that there is a ‘grey area’ of rape. This is because marital rape, ‘date’ rape, rape without physical violence, rape after previous sexual activity etc etc are all taken as something akin to victims “making a fuss”. Therefore, anything that encourages this view is extremely detrimental to the project of reducing sexual violence.

  30. jj Says:

    Jerry, people are discussing a set of issues and trying to figure out what’s the best way to think about this all. You are attributing to them a set of problems and conclusions that are negative. But your interpretation is incorrect; it is coming from you, not from the discussion. That strongly suggests to me you are reading into the discussion your own expectations.

    Note, then, that you ask how I can claim Bacon was responsible. But I haven’t done any such thing.

    You are acting like someone who has come here with very strong preconception and is addressing them rather than what is really going on. Since the assumptions are negative, your behavior is really trollish, in my opinion. You may not have intended that, but you are not now constructively addressing the issues being discussed.

  31. Jean K. Says:

    Responding to Nathaniel (way up)–yes, initiation can go back and form, but when it’s truly balanced, it doesn’t seem like there’s rape. I am suggesting that where there is rape there is asymmetry, and there is a different burden on one, the initiator, to establish “permission.” Even if they’re both drunk, it’s the initiator who is accountable for what happens. I have no opinion about the case at hand, by the way, or about whether Bacon was the initiator.

  32. Matt Says:

    X- one problem with the strict liability approach is that rape is very much unlike the crimes we normally allow strict liability for, and the penalty is also completely different in kind from the penalty for most strict liability crimes. Almost all strict liability crimes are “regulatory” in nature, and are ones where we think having the right mens rea isn’t an issue. That’s not like rape at all. And, the penalties are almost always fines and there is rarely any significant stigma attached to being convicted of a strict liability crime. Again, this is quite unlike rape. When we consider that a rape conviction leads to years in jail (that will often include rape, too!), serious social stigma, and, at least in many US states now, mandatory registration as a sex offender for life (a status that will likely destroy one’s life in many ways), strict liability seems like an implausible reply. Now, if we had only money damages of some sort things might be different. But, like a lot of Ian Ayer’s work, this seemed to me to be something that seemed clever at first but was half-baked when looked at a bit more. Unless we very significantly change the penalty and the stigma involved, and even how we think of it, I don’t see that rape is a plausible candidate to be thought of as a strict liability crime.

  33. x. trapnel Says:

    Matt – true enough. I was thinking more in terms of the degrees of homicide – where sex-with-a-drunk-person is like driving a truck with hazardous chemicals that exposes you to strict liability if it explodes and kill somebody (right?). And yes, it wouldn’t make sense for this category to carry the same penalties and stigma, I agree.

    I don’t really see this as so half-baked – the current system seems pretty flawed, partly -because- there’s no intermediate category, which makes it hard to get convictions, and results in a further divorce from the law on the books and the law in action.

  34. Jean K. Says:

    x. trapnel, I don’t get it. If you had “strict liability” then if two drunk people have sex with each other, would they each have the right to charge the other with rape? Would it make sense to have them both convicted?

  35. Matt Says:

    There’s no strict liability for homicide. For any degree of it you need to show the proper mens rea- gross negligence, at least, though even that isn’t usually enough. A strict liability offense is one where the mental state of the person is of no importance at all, so, in your example, it would be one where the person in question followed all the rules, did everything she should have, and by some freak accident there was an explosion killing people, and we charged her with something (manslaughter) anyway. There’s no such criminal law in any system, nor is there likely to be. Note that things are different in tort suits for money damages, and probably should be. Maybe something like that is what’s needed, but the criminal law uses strict liability only extremely rarely and for fairly minor things because moral culpability and control are built into the criminal law and strict liability ignores that. If you want to argue that tort actions should be easier that might be something. (Note that they are already possible, though most defendants don’t have enough money to make it worth while, which is why you usually only see them in the case of famous people- Kobe Bryant and the like.)

  36. Brandon Says:

    Matt can correct me if I’m wrong about this, but we only ever introduce strict liability to bring massive systemic problems under control by forcing people to take extraordinary precautions; as I understand it, that’s why strict liability was introduced in the first place: it became clear that something had to be done to protect worker safety, but it was very hard to do anything about it because it was very hard to prove that employers were seriously negligent or malicious (sometimes because they really weren’t either). So certain things were made matters of strict liability so that employers would not merely take ordinary steps to protect worker, but go to greater and more systematic lengths to guarantee that workers were safe.

    But even though strict liability may not be the way to go, x.trapnel is certainly right that it does raise the question whether then, as now, we should consider whether our legal concepts need reworking — i.e., perhaps we need a new set of legal concepts in order to do justice in matters of rape. Of course, then we have the difficult problem of what those new legal concepts would be. What sort of ‘intermediate category’ would capture what we’d need.

    On Carl’s point about the value of shades of gray in matters of rape, I’m not sure which is the best way to go; but one argument, running counter to George’s, that I have come across for keeping categories like ‘date rape’ is that these gray categories make it easier for more rape to at least be brought to some sort of justice. If we only have rape, simpliciter, (so the argument goes) then we are guaranteeing that a great deal won’t — the result won’t be that people will just start treating date rape, etc., as rape, but that they will again recede from doing so: rape is a very bad thing, so everything that people are inclined to regard as in the slightest bit gray they will be tempted to move out of the rape category if there is no qualified rape category. It is certainly true that, rightly or wrongly, people do tend to see a lot of shades of gray when it comes to rape, and it doesn’t take long for people to start waffling on the question of whether this or that is rape, simply speaking, in ways they wouldn’t if you talk about date rape, or marital rape. And arguably this is inevitable if our big concern is consent — there are gray areas with consent, whatever the area of consent.

  37. Matt Says:

    Brandon- I agree that we should be willing to re-think our legal concepts (we’ve done a fair amount of that on Rape already, and probably should do more). I do think it’s important, though, to consider that strict liability is almost entirely used in tort, not criminal, law, and why this is so. Maybe the answer is to make a strict liability tort (though I’m still a bit skeptical this is right), but it seems a complete non-starter to me for criminal considerations.

  38. jj Says:

    I’ve been wondering about background models or analogies that are getting used in this discussion. It seems to me that if we were talking about using someone’s car, we might be saying one kind of thing. But if we were talking about taking a pint of their blood or a kidney then the picture might look quite different. Perhaps there are shades of grey in consent, but somehow it doesn’t seem to me we’d even talk about that if we were dealing with the case of a very drunk person agreeing to sell a kidney. (OF course, I could be wrong.)

    So I’m wondering if we’re thinking at least sometimes that having sex with someone is more like borrowing their car than taking a pint of blood or taking a kidney. Now, taking a kidney might be an extreme analogy, but taking a pint of blood doesn’t seem to me so extreme. But the idea of solving a blood shortage problem by picking up pretty drunk people late at night doesn’t strike me as the sort of thing we’d condone. (“People are so fussy and reluctant, but after 5 whiskies they really like selling blood.”) So why is picking up pretty drunk people for sex all that different?

  39. Brandon Says:

    I suspect that most people have different presumptions in the case of sex: sex is a common and often desired thing, whereas having one’s kidney or blood taken is not. But it’s an interesting question; I’m not convinced myself that people are right to let the presumptions diverge quite as far as they actually do between sex and cases of that sort.

    I always have a class on feminist discussions of rape and rape law when I teach intro phil (one reason I’ve been so interested in this thread); and I find that a common worry raised by students, both male and female, is that any change to try to bring more rapists to justice would also have the effect of making sex a more complicated and difficult thing for everybody, by increasing the list of regulations and rules that have to be followed — that is, they think any increase in the list of things to worry about, beyond the current one of age and reasonably clear refusal, would result in an excessive involvement of the law in sexual matters. This is a very big worry for many of them. I think this is probably also connected to the divergence of presumptions, but I’m not sure.

  40. Bakka Says:

    Brandon, I think it is interesting that students are worried about making sex more complicated. I wonder why we don’t include these complications in sex ed. When I got sex ed (which was a while ago, so things may have changed), we were taught very basic biology and birth control. We were not taught, however, how to recognize consent, or how to negotiate sexual relations. I remember thinking that these sorts of things were what seemed important (and confusing) to me at the time. In high school (and after) you need to figure these things out, but there was no guidance on that. Wouldn’t it be great if the kinds of concerns you say MacKinnon might be interested in knowing were included in sex ed? For example, we could talk about pressure: when has asking shaded into pressuring? We could talk about how to sort out social pressures to be sexual or remain chaste, and how these affect our perceptions of our own desire and the desire of others. We could talk about not presuming the other wants sex (or doesn’t want sex) for both men and women.

    I think it might actually make things less complicated if sex ed included a module on sexual negotiations. It might also help keep the law OUT of sexual matters, since people would have some idea what they were doing in responding to one another sexually.

    In my sex ed class all we got was “women have a right to say no, and men have to listen when women say no.” That was it. We did not hear that women can say yes, or that men could say no. We did not talk about pressure, coercion, or any of that. So we were left pretty much in the dark unless we were following the gender script of saying no when female and yes when male.

    When I was in high school, I was asked to help redesign the sex ed program for the city. We had a meeting, and I raised this issue. I was saying that I thought it would be good if we could hear that women can say yes, and men can say no (at the time I did not really have the conceptual tools to talk about coercion, or sexual negotiations, since everything I was hearing was in terms of saying “yes” and “no” full stop). What I found really interesting at the meeting was that the adults (who were the ones that would actually develop the new sex ed program) kept saying back to me, “so you think we should include that women can say no and men have to listen.” This went back and forth for a while, until I gave up.

    I think as a teen it was really hard to figure out desire, and to figure out consent (in fact it still is). Especially given the background gender norms. I think having this discussion as part of sex ed would have been helpful.

  41. Jender Says:

    Bakka, that seems absolutely right. All of the emphasis on women *consent* can serve to prop up the view that sex is something men want and women don’t, and that the best a man can hope for is a reluctant “ok, if you really want to”. The idea that *both* partner should genuinely want sex is curiously lacking. This can obviously lead to cases of coercion, but it also leads to a lot of bad sex that’s not coercive. If a woman’s never going to really *want* sex or *enjoy* it, why bother spending a lot of time trying to figure out how to please her? In addition, it can make men feel like they always have to want sex and there’s something wrong with them if they don’t. But all this reforming sex ed sometimes feels like a pipe dream. Even in the UK, which hasn’t got the abstinence only thing going, hardly any of my students have even had the basics of contraception taught to them. The only one who had learned it at a Jewish religious school, and in a separate religion class was told that contraception was wrong.

  42. Jender Says:

    I think some of the thoughts above are also discussed in the recent much-discussed _Yes Means Yes_ book.

  43. Bakka Says:

    Jender, I think you are absolutely right about the lack of discussion of female desire leading to bad sex, even if it is non-coerced. It can also lead to situations in which women unwittingly coerce men. Further, men may be coerced into sex not just by women (assuming heterosexual encounters, which we shouldn’t), but also by social pressures. These issues are almost never discussed as a possibilities.

    Our sex ed program (in a large Canadian city) was actually pretty progressive, I think (despite the yes-no issue). It began in grade 1, with a discussion of how non-human animals become pregnant, and a movie of animal births. By the time we were in high school we had lots of information about sex, biologically. In high school, we were even taught how to put condoms on with our mouths (and this was taught in mixed company to both boys and girls!!!) in order to make safe sex “sexy.” I was a peer sexual health educator for my district and I received a crate of condoms each month to hand out to my class mates for free. Overall, I think the sex ed program was pretty good, which makes the absence of a discussion on sexual negotiation even more mysterious. Even in the face of an extremely progressive sex ed program, those who designed it were not able to hear my questions about sexual negotiation.

  44. Bakka Says:

    I just thought of something else that is potentially interesting. The unit that we had on “making safe sex sexy” was partially about avoiding sexual negotiations. So one of the things we were told as we were learning how to put condoms on with our mouths was that we could use this technique if we were uncomfortable talking to our partners about safe sex/condom use. The idea was that no man would complain if you just slipped the condom on in the course of performing oral sex…

  45. jj Says:

    Let me just query Brandon’s “sex is a common and often desired thing, whereas having one’s kidney or blood taken is not,” and perhaps pick up on Bakka’s and Jender’s discussion.

    One point: I’m not sure that rape is all that different from having blood taken, so I’m struggling a bit to locate the remark.

    It can seem right to think that sex is often desired, as is food. However, much as I might desire ice cream, I certainly don’t want to be force fed it. There’s something to be understood here, and we generally get it with food. We don’t generally warn people preparing parties that they need to be sure people consent to eat. But we don’t see the language of consent as foreign to sex.

    I am not sure this is just because one gender is thought to be more agressive about, and interested in, sex. Rather, that gender’s want is not framed as a want for sex with a fully participating party. Maybe a bit like parents who do come close to force feeding. The desire to do X to y becomes divorced from any thought of doing X in partnership with Y.

    I don’t want to suggest we stop talking about consent, but it may have replaced or subverted another understanding. As McKinnon has perhaps been saying.

  46. Brandon Says:

    It would be nice to have a sex ed course that actually did handle these matters well, and if you could do it then that would certianly provide a way to get around the complexity issue. But I confess that I’m pretty skeptical of the idea of reforming sex ed, especially in a place like here in the U.S. where sex ed is tricky to do even in watered-down forms. I had a (for the U.S.) fairly progressive and involved sex ed in school, and it was pretty thoroughly bungled anyway. Sex ed has all the problems of physical education (a good idea in theory, but it’s difficult and resource-intensive to do it in a way that makes it an actual education of any sort rather than just filler) and all the problems of an ethics class (everybody wants you to teach their ethical viewpoint) and all the problems of a course specifically on a controversial subject (either it becomes thin and watery in order to please as many people as possible or there’s always someone trying to shut it down).

    Perhaps this is another reason why (in the U.S., at least) there should be specifically feminist private schools to allow such curricula time actually to develop and show their worth; otherwise, I don’t see much prospect for it.

    I hadn’t really thought of the possibility that possibly the real problem with consent in this context is in some sense that it is (explicitly) an issue at all — of course, it should be there in a sort of general and obvious way, as with the food example, but I think jj’s right that we should be asking questions about what underlying assumptions are forcing it to be so ostentatiously central to the way we talk about sex, and whether the fact that it is forced to be so is introduce its own set of distortions. That’s a question I hadn’t thought of before, and I’m not even sure what the general shape of the answer would be.

  47. Monkey Says:

    JJ – I took Brandon’s remark about taking a kidney to be something along the lines of the following. Since most people don’t want their kidneys removed, the removal of a kidney is evidence for a crime having been committed. Since people often want sex, sex being had is not on its own evidence for a crime being committed. The problem then is how to show that a crime has been committed, given that people often want sex. I don’t think he was suggesting that because people often want sex, any old sex (such as forced sex) will do.

  48. Jender Says:

    Really interesting point, JJ, about the problem with emphasising women’s consent: it shores up the view that sex is something men want and women grudgingly agree to. Of course, historically one can understand how this came about: caring about consent is a lot better than not caring about it. But maybe it’s time for another leap forward.

    Monkey– I don’t think JJ took that to be Brandon’s view either: I think she just wanted some further clarification.

  49. Monkey Says:

    Ooops – sorry. Misunderstood the source of confusion.

  50. Monkey Says:

    That’ll teach me to read the discussion more carefully.

  51. jj Says:

    Thanks, Jender. I thought i was coming at McKinnon’s point, though maybe from a slightly different perspective.

    I liked Monkey’s reading syntactically, though it seems to me still to have the problem that what’s said isn’t true.

    Did we do a piece on some recent research that indicated that a lot of women in hetero relationships are having pretty boring sex? The idea was that too many guys are totally clueless. So there’s the closely related problem that a lot of men seem to find sex pretty OK even if their partner doesn’t. Perhaps part of the problem lies not in the fact that guys want it more, but rather that it is hard for sex to occur if they don’t want it, while the opposite is not true.

    Now in my experience…opps! better not go there!

  52. jj Says:

    Let just also mention that Hume’s writing on chastity is interesting for many reasons, but one particularly is that he assumes women are lusty and want sex. Society then has a problem controlling that lust, because men won’t nurture children unless they are sure they’re the parents.

    We might today find we have quite screwed up (sic) women’s sexuality and stupidly assume that because most men desire most of the sex they have, while the reverse is not true, that men desire sex more. Rather, it might just be that sex doesn’t happen much if the guy doesn’t want it.

  53. Jender Says:

    There may also be plenty of guys having sex they don’t want all that much, and unwilling to admit they don’t want it.

  54. jj Says:

    Yes, of course. I think I had been assuming that there’s some group brandon’s reported assumption applies to.

    AND, perhaps I should add, it is not just men who include the clueless.

  55. Steve Jones Says:

    There seem to be an awful lot of concepts being talked about here which are almost impossible to put into practice. However, let’s take one principle. If you knowingly drink or take drugs to the point where your judgment is impaired, then that would not be accepted as a defense should you commit a crime such as getting into a fight, having a car accident or committing a murder. The law, rightly, takes the view that responsibility is carried over, and your conscious decision to impair your own judgment is your responsibility (note that is wholly different to having a drink spiked – that was not an issue in this case).

    Of course this still leaves the problem of whether somebody was in such a position that they are actually incapable of making even a drunken decision. Clearly being unconscious would make that impossible. But, as anybody who has dealt with drunks will know, it is perfectly possible for people to function in that state, yet not recall much, if anything, about what did happen. There is, of course, the problem that we only have the word of one person who remembers the events, but it seems to me, that unless the prosecution can prove that not even a drunken consent was given to a “beyond reasonable doubt” level, then no conviction could be sustained. The “strict liability” stuff appears to be akin to saying that one party has a duty of care to the other subject to some pretty draconian punishments. It’s particularly harsh if it applies to just one party when both have been drinking.

    Now clearly there are some things that could be undone where decisions are made when one of the parties has his or her judgment impaired. For instance, signing an as yet unfulfilled contract. However, consent and what follows is not one of them. Rape is a particularly difficult crime to prove because it covers an event that is normal in other circumstances. Most other serious crimes, like murder or robbery do not have this ambiguity.

    The current UK law was reworded in such a way as to increase the doubt over what consent actually is. However, it is quite beyond the capabilities of the drafters of the law to explicitly state what that means in the event of self-induced impairment of judgment. The interpretation is wholly down to courts, and in reality, the intention (which was avowedly to increase conviction rates) is likely to be wholly ineffective. In fact cases like this could well damage the overall cause.


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