Today, it is not uncommon for rape charges to be brought in respect of foolish or stupid sexual encounters. After presiding over back-to-back trials where a female complainant had been so drunk she could not remember what had happened and, therefore, whether she had consented to sex, Judge Mary Jane Mowat observed that “the rape conviction statistics will not improve until women stop getting so drunk”.
It was significant that Judge Mowat prefaced her comments by noting she would “be pilloried for saying” them. She may have had in mind the treatment of Ken Clarke MP, who, in 2011, referred to “serious rape”. This prompted Labour leader Ed Miliband to call for Clarke’s resignation on the grounds he was suggesting “there are other categories of rape”. Clarke spent the rest of the day saying he “always believed that all rape is extremely serious” and he was “sorry” if his comments had given any other impression.
Despite the censorious you-can’t-say-that attitude of some feminists, there is an urgent need, not to debate the seriousness of rape, but to debate what rape is. Rape, properly defined, is serious. But by redefining rape to encompass drunken or foolish sexual activity, which a man believes the woman is consenting to, the crime of rape is, in these instances, being stripped of its criminal culpability.
“Impossible”, claim rape campaigners with a glib understanding of how rape is now defined. Labour MP Harriet Harman responded to Sarah Vine’s column with an all-too-familiar analogy: “If I leave a window open an inch and someone breaks in, steals everything I own and ransacks my house, no one would say it wasn’t a crime or that the offender had ‘made a mistake’.”
Yet there is no parallel between a burglar who trespasses into a house and steals, and a man who believes a woman is consenting to sex. Trespass followed by theft is inherently unlawful. Sex, though, is inherently lawful, which is why it requires a carefully drawn law before it is criminalised. Traditionally, a conviction for rape could only be secured if the prosecution proved beyond reasonable doubt that the man either knew the woman was not consenting to sex or he could not care less whether she was consenting (Morgan, 1975). It was this mental element of the offence (mens rea, as lawyers call it) that ensured that only defendants with an appropriately guilty mind could be convicted of rape.
Jon Holbrook, “New rape laws: turning sex into a crime”, spiked!, 2015-02-12.
September 12, 2016
QotD: Turning regrets into “rape”
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