About a month ago (14 February 2015, p. 4) the
British newspaper The Guardian
published an article in which it was reported that three men had just been jailed
for “raping a woman who admitted to being so drunk she did not know whether she
had consented to sex.” An initial decision by the Crown Court to dismiss the
charges was successfully appealed by the Crown Prosecution Service. Now they
have been sentenced to six years each in prison. The woman whom they are
alleged to have raped - and who in the article is consistently referred to as “the
victim” - declares herself pleased with the decision. A spokesman for the Crown
Prosecution Service praises her for the “tremendous courage” that she has shown
after suffering such a “horrific ordeal”. But it is good to see, he says, that
now finally “justice has been served”. The DI who led the police inquiry,
agrees: “We hope this serves as a warning and reminder to everyone that before
engaging in any kind of sexual activity you must be absolutely sure that the
other person has the capacity to fully consent and does so.”
Now I don’t know anything about this case except
what I have learned from this newspaper article. So perhaps there are aggravating
circumstances that I am not aware of. But let us, for the sake of the argument,
assume that the article relates all the facts of the case that were relevant to
the verdict. In that case, what happened was this: the woman in question went
to a bar, where she consumed “up to 12 shots of vodka”. She met the three men
who were later convicted of raping her, and accompanied them (voluntarily) to a
flat where she drank more vodka and repeatedly had sex with all three men over
a 20-hour period. Her family reported her missing and when the police found her
at the flat the next evening, she couldn’t remember anything. She admits that
the sex she had with those men may have been entirely consensual. However,
because she was drunk at the time, it was ruled that she did not really have
the capacity to consent, from which
it follows that the men had sex with her without
her consent, which fulfils the legal definition of rape. Hence the criminal conviction.
There are various things that puzzle me about this
case. The first is that the woman seems to be absolved of any blame or even responsibility for what happened in that flat. The
three men alone are seen to be responsible. The woman is simply a “victim” of a
crime. She didn’t do things; things
were done to her. The director of
public prosecutions commented: “It is not a crime to drink.” Well, no, it isn’t,
but that doesn’t mean that you are not responsible for what you do after you’ve
gotten yourself drunk. If I get drunk and then drive home in my car and cause
an accident, then it is unlikely that I will be exonerated on the grounds that
I was so severely drunk that I didn’t really know what I was doing and thus
incapable of consenting to driving a car. And that is because it was my
decision to get so terribly drunk in the first place. I should have known
better.
It may of course be argued that the case in question
is different because other agents are involved and those agents committed a
crime. If I get drunk and you relieve me of my wallet, and that is only
possible because I’m so drunk that I don’t really know what is happening to me,
then this is still a crime and you should rightly be convicted of theft. True,
but in the rape case things are different. Here the crime does not simply
remain unaffected by the victim’s
drunkenness (as in the theft case). Rather, it is the victim’s drunkenness that
turns the deed into a crime. Had the
victim been sober, then she wouldn’t have been a victim and no crime would have
taken place. Now imagine that you had not simply taken my wallet from me, but
that I had insisted, in my drunken state, that you take all the money in my
wallet. If you then did what I asked you to, you would of course still have
taken advantage of me. It was certainly not a very nice thing to do because you
could and should have guessed that if I had been sober I wouldn’t have offered
you my money. And if later, after sobering up, I asked you to return my money,
then I think you should return it, and perhaps even be legally obliged to do
so. But I don’t think that you should be sentenced to prison for theft. One may
disagree with this, of course, and insist that what happened did amount to theft, but my guess is that
this would be mostly because you clearly inflicted harm on me, and that harm exists independently of my inability to
consent to your actions. But in the rape case there is no harm other than the
harm that consists in, or results from, the woman’s inability to consent. I’m
of course not talking about rape in general, but only about this particular
case where, it appears, there was no violence and no coercion. No physical or
other direct harm was inflicted on the woman. Nonetheless what happened to her
was regarded as a “horrific ordeal”, apparently not because she suffered in any
way or even minded much at the time, but solely because she was not capable of
consenting to it. The odd thing about this view is that it seems to suggest
that the sexual act is intrinsically harmful unless it is consensual.
Imagine that the three men didn’t have sex with her,
but instead played tic tac toe with her all night because that is what they are
into. The next day she cannot remember anything, and it emerges that she was
too drunk at the time to be able to consent to playing tic tac toe. If she had
been sober, she would never have agreed to play that particular game with those
particular men. Clearly, the men took advantage of her. Yet it would probably
not occur to us to demand that those men be imprisoned for what they did to
her. Seizing the opportunity to play tic tac toe with somebody because they are
too drunk to refuse would not be considered particularly blameworthy. Yet
seizing the opportunity to have sex with someone because they are too drunk to
refuse is considered to be a heinous crime, punishable by six years of imprisonment.
I wonder why exactly that is.
It is not only that I find it a bit worrying to be
officially reminded and warned that “before engaging in any kind of sexual
activity you must be absolutely sure that the other person has the capacity to
fully consent and does so”, because this makes sex an awfully complicated and
serious affair, full of legal pitfalls. This does not only rule out any drunken
sex, but also any light-hearted sex, any sex that is not self-conscious and
wary, stifled by the fear that one may have to pay for a misinterpretation of the
signs with serious jail time. It’s going to be hard to actually live by that
rule and still enjoy sexual encounters with people one hasn’t known for a long
time. And even then we will not always have the required certainty. Do we ever
have the capacity to fully consent to sex? What exactly does that mean? And can
we ever be absolutely sure that the
other has that capacity? How exactly do we become sure of that? Simply by
asking? Are you sure you want this? Are
you really sure? Are you sure you’re sure? But the most interesting
question is why the absolute certainty of full consent is deemed so terribly
important when it comes to sex, and to sex only. What is it about sex that
makes it so special, so unlike all other activities that we cannot do it with
another human being unless we are absolutely
sure that they really want it?
One more thing: the unacknowledged gender aspect of
the whole case. Imagine everything had happened the exact same way, but with the
victim being a man and the perpetrators being women. After 12 pints in a pub
the man is taken to their flat by three women who take advantage of his intoxicated
state and repeatedly have sex with him. The next morning he finds he cannot
remember anything, but, reasoning that he had clearly been too drunk to give
his consent, he sues the three women for rape and they all get convicted and sentenced
to six years of prison. The public and the media applaud the decision, and
everyone, including the man himself, is very pleased that justice has been
served. How likely is that scenario? Not very, I should think. And that is not
because men are any less likely to suffer and be traumatized when they are
subjected to sexual violence. I think it’s rather because we find it very
difficult to see the violence in this particular case when the main protagonist
is a man. In fact, I don’t think we would accept that the man has been harmed at all by the sex he engaged in,
despite his alleged inability to consent, and we would most certainly not think
that he went through a “horrific ordeal”. But why would that be? Assuming I’m
right about this, what makes the two cases
so different that they are evaluated so differently morally?
At the moment I can only guess that it has something
to do with the way we view human male and female sexuality. Despite the fact
that women want and enjoy sex just as much as men, we are for some reason
assuming that for women the sexual act is intrinsically harmful, so that they should only be subjected to it if
they explicitly consent to it, while for men the sexual act is intrinsically not
harmful, but on the contrary pleasurable, so that, since pleasure is good,
explicit consent to the sexual act is not morally required.
