Why consent may not be the most important issue in rape

Many years ago I was part of a team of post-grad criminology students who did a broad study of the crime of rape in Victoria. Among the conclusions of that study was that the prevailing laws relating to rape were inadequate because they treated rape as such an all-or-nothing offence, a simple yes/no issue. And I mean that in the sense of both the issue of consent and defining the act.

The problem is proving, or disproving, whether consent occurred is very complicated. This arises mainly from the fact that sexual intercourse occurs both legally and illegally. Other serious crimes do not have this ambiguity. It is not likely that a person would be acquitted of murder on the grounds that the victim consented to be killed (current debates about assisted suicide, aside). It is equally unlikely that someone might consent to suffer grievous bodily harm or have their house burgled. Those crimes have a prima facie appearance being non-consensual. Sex on the other hand, is generally consensual; non-consensual sex is not as usual, though not as unusual as we would like.

Not only does sexual intercourse have both consensual and non-consensual versions, consent itself can be qualified, diminished or cancelled by the circumstances surrounding its granting. The first recommendation from the report we prepared long ago was that the crime of rape be replaced by a crime which might be called Coercion for the Purpose of Obtaining Sex. This would cover any situation where consent was obtained by fraud, deception, threats, blackmail, administration of a drug or any other behaviour designed to override or distort the free will of the victim. Obviously, physical violence which totally negates the need for consent would sit at the extreme end of that scale.

To a certain extent, this recommendation has now been adopted by the introduction of Sexual Harassment laws which make it an offence to coerce someone to have sex by, for example, threatening to have them fired, or harming their career. The definitions of harassment also include the use of persistence or beleaguerment to "wear down" the victims resistance. Thus we have progressed toward establishing a scale of offences ranging from bullying and blackmail up to such things as drugging and violence to obtain or nullify consent. The term "rape" however is still used to describe the more violent end of coercive continuum as if it were a crime with specific boundaries.

Framing a general law proscribing the use of coercion to obtain sex, however, does not assist in situations where the consent of the alleged victim is compromised by circumstances that are not imposed by the perpetrator. For example, consent can be invalidated when the alleged victim is suffering from a form of mental illness, mental incapacity, sexual ignorance, or the effects of drugs and alcohol. The last two of these are typically self-imposed by the victim.

This is a matter of particular concern. The prevalence of drugs and alcohol in social situations gives rise to a substantial number of cases where consent to intercourse is claimed and then denied, not necessarily in that order. Consider the following scenarios and please note any genders can be substituted. I have used "men" and "women" only because they are the players in the vast majority of these scenarios: 

1.   1. A man and a woman meet at a party. The woman has been drinking heavily. They go to a bedroom. There is a presumption on the man’s part, and it is assumed on the woman’s part, that they are going to have sex but before anything can happen the woman passes out on the bed. The man proceeds to have sex with her anyway.  Rape? Absolutely.

2.   Same as above. The man and woman go to the room. They indulge in foreplay, kissing, undressing, touching but before actual intercourse occurs, the woman passes out. The man has sex with her anyway. Rape? Almost certainly. Why almost? See below.

3.     The couple go to the bedroom and start having sex. During it, the woman passes out. The man continues to complete the act. Rape? Again, possibly but also possibly not.

4.     The man and woman have sex and the woman falls asleep. When she wakes she has no memory of what happened.  She realises someone a man has had sex with her but does not believe that she consented to it. She accuses the man of rape. Rape? Very difficult to establish.

5.     The man and woman have sex. When the woman wakes up the next day she recalls the encounter and recalls that she gave consent however she feels the man “took advantage” of her drunken state in which she consented to something she would not have normally done. Rape? Not according to current laws.

Clearly there are all sorts of variations on these scenarios including the possible inebriation of the man as well.

Of course Number 1 is clearly rape, and so is Number 2, though a court may decide that by participating in foreplay – which might reasonably be seen as demonstrating a desire to have sex – the woman had consented. The question then arises, even if she did consent in the first instance, is that consent invalidated by the woman passing out or falling asleep?

The answer is, yes, the initial consent is invalidated - or is it? A jury could take the view that in consenting to sex in the first place the woman entered into an agreement and falling asleep or passing out did not negate that contract. Now while that seems harsh, this is one derivation of focusing on consent as the critical determinant of rape.

Basing everything on consent willfully given, characterises sex as a kind of contractual arrangement and all contracts place obligations on the parties. The first of those obligations would presumably be that, after the sex has occurred, neither party will accuse each other of rape. The second would be that both parties agree to sex occurring - or perhaps that's the first one. Whatever the priority, there is a possibility that the agreement could be held to be binding even if one of the parties falls asleep or unconscious. 

Of course consent is not usually given in any formal legalistic way. If one party specifically voices the request "Do you want to have sex?" and the answer is "Yes," then you could say an agreement has been entered into. But, in most sexual encounters, agreement is reached by a series of coded invitations and confirmed by actions and responses. However, even in such indirect communications, a contract can be still held to be "implied" and a defense frequently used by men accused of having sex with a woman without consent is that they had an “honest belief’ that she was consenting based on her actions. This has been accepted by courts in many cases.  

As part of the same "honest belief" defense, claims are often made that, while consent was never explicitly given, 'she never told me to stop". This may be taken by a court to sufficient to establish an honest belief. That defense however would not play well in cases where the woman passes out because the prosecution will simply say "Well of course she didn't tell you to stop, she was unconscious." 

But herein lies another fundamental problem. Many people argue that the solution to ambiguity over consent is that consent must be given clearly and unambiguously and that men, as much as for their own protection as anything should make sure that they have clear and informed consent from the woman before having sex. However, what if the woman, for whatever reason, changes her mind? In that case, it must become equally essential for her to state clearly and unambiguously that she is terminating the consent. If a the man continues to have sex with her, after that clear statement of termination, then he has committed rape. But what if she lapses into unconsciousness without formally withdrawing her consent? For the man to continue having sex with her, as in Scenario 3, would clearly by clearly be immoral, distasteful and beastly. But is it technically "rape". Has he had sex with her without consent?

On top of all of these technical considerations is the overarching issue of proof. The critical problem is that, as in Scenario 4, if a woman drinks enough to pass out, then her memories of events immediately prior to that point would be likely to be impaired. If they are not actually impaired, their accuracy would be seriously questioned in court. Since the onus of proof in a criminal trial is on the prosecution, it is up to the alleged victim to prove that she did not give consent but the very fact that she was inebriated to the point of passing out raises doubts as to her capacity to remember the details of the situation and, specifically, whether she gave consent.

Even the Case 1, where she is clearly raped before she could have given any form of consent, becomes a difficult case to prove because the only undisputed facts of the case are that sexual intercourse occurred and, at some point, she passed out. The fact that she does not remember having sex does not mean that she was not conscious, and consenting during it. Even in a scenario where the woman does not actually “pass out” but is just very drunk - confused, perhaps dizzy, unable to stand, not fully aware of what was going on, how can a court reconstruct whether or not there was a moment when she clearly, and with full presence of mind, gave or denied consent?

One way of getting round these problems of defining whether consent was ever given or withdrawn is to virtually ignore the issue and try another approach.

Instead of focusing on whether there some sort of explicit or implied agreement, we could invoke the legal principle o judge the situation in terms of a Duty of Care. We could say that a person who is engaged, or intending to engage, in sex with another person has a duty of care towards them. This would mean that they would not attempt to have sex with them when they were unconscious, semi-conscious, or even just heavily inebriated regardless of any indication, stated or implied, of willingness to participate. In other words, the claim in Scenario 5 that, although the victim gave consent, she had been exploited while under the influence of alcohol, would have legal teeth.

This would mean that the proposed single law, covering Coercion for the Purposes of Obtaining Sex could be accompanied by another law covering acts where sex was obtained, not by coercion but by opportunistic exploitation.

Of course there are problems with imposing a Duty of Care on casual sexual encounters. It would mean requiring individuals to make a judgement about other people’s states of mind which they may not be equipped to make. It would also require them making decisions about other people’s welfare which, again, they might not have sufficient information to make. It is also something that might be unreasonable to expect in the (very likely) situation where both parties are inebriated or drunk affected and not acting responsibly to begin with. And of course, the notion of a men deciding what women "need" could be seen as patronising.

The Law has never generally regarded acts committed when drunk as different from acts committed sober. Being drunk is no defense (or should not be) to assault or murder. This is because the state of being drunk or drug-affected is held to be something the the person in question has willfully imposed on themselves and therefore they are responsible for any act they commit while in that state.  Traditionally, that has been extended to things such as an inebriated woman or man consenting to sex when they might not have done it while sober. The only time when consent is considered to be voided due to the effects of a drug is when the drug was administered by someone else, without the victim’s knowledge.   

However, the Duty of Care principle does not seek to overturn the "right" to consent. It does not concern itself with whether drunken consent is the same as sober consent and does not seek to decide whether a woman is responsible for the consent she gives while inebriated. It makes no judgement on the woman's actions nor her rights or autonomy. It applies entirely to the actions of the other party and how they affect the alcohol or drug-affected individual.

In this sense a law against Sexual Exploitation would in effect mirror the laws against Sexual Harassment which already include a duty of care component. Sexual Harassment does not necessarily require that the offender deliberately exploit their position to obtain sexual favours. It accepts that power does not have to be explicitly wielded as a weapon; the mere fact of someone being in a position to control someone else’s life, career, relationships, etc, can act as a form of coercion towards allowing intimacies even when no implicit or explicit threats are applied. It states that freely-given consent is not necessarily free when it is occurs on an unlevel playing field. People in positions of power or influence therefore have a duty of care not to exploit their position to gain sexual or other favours even inadvertently.

Similarly, a law of Sexual Exploitation would serve as a warning that even in a casual, non-institutional, non-hierarchical environment, any situation where there is a power imbalance - such as a relatively sober man and a woman who is clearly seriously inebriated  - there is a duty of care, irrespective of the matter of consent, not to not take advantage of the situation. The advantage of such a change in the law would mean that it was no longer necessary for a woman to prove that she did not consent, or that she consented initially but changed her mind, or wanted to change her mind but was unable to do so. It would not be necessary to prove what state of consciousness she was in at the time. It would only be necessary to show that the respondent in the matter failed to act in her best interests.

 

 

 

 

 

 

 

 

  

  

Was Hollywood a factor in the storming of the Capitol?

Looking at Facebook I came across a very serious fan discussion about Zac Snyder’s latest film with all sorts of comments evaluating his productions comparing Man of Steel with Sucker Punch etc etc.

I’m not sure how to react to people discussing films that are outright fantasies with such earnestness and commitment. I mean, to be seriously comparing movies that are so fantastical as to be downright silly, how can you even begin to discuss these except in terms of perhaps cinematography, special effects and stunts, for that’s all they really have.

To begin with, let’s clarify the difference between fiction and fantasy. It’s not a hard edged distinction but, in general terms, fiction means a narrative with imaginary versions of real people. The characters are fictitious but the types of people they represent do exist. Hence, the staple characters of Hollywood movies, cowboys, detectives, gangsters, soldiers, bank robbers, aspiring singers, doctors and so on are types of people who actually exist. Similarly the worlds in which they exist are comparable to ones that do exist, or have existed, in reality. That is not so say that those worlds are represented with documentary accuracy but that the general intention is to portray a modern city, the African jungle, or ancient Rome as, to the best of our knowledge, we imagine them in real life.

Fantasy, on the other hand, invokes elements that do not exist nor have ever existed. There appear to be two main fantasy modes. One is where fantasy characters inhabit realistic environments such as wizards living in modern London, superheroes flying around Los Angeles or zombies stalking small towns. Those fantasy characters also include bizarre villains such as deformed criminal masterminds with exotic names. The second is where realistic people are placed in fantasy environments e.g. astronauts exploring other planets or children passing through a wardrobe to find themselves in a mythical land.

Of course, there are fantasies where the both the characters and the environment are imaginary such as Star Wars and Lord of the Rings. In these, the authors have created an entire imaginary universe.

Sometimes these fantasies are called ‘science fiction’ but this is incorrect. Real science fiction speculates on the implications of actual scientific discoveries. The great science fiction writers imagined and often correctly predicted, future technologies such as space flight, submarines and so on. Often, as with the Invisible Man, or Forbidden Planet, they considered the social and moral implications of advanced technology.

Science fantasy, on the other hand, simply uses scientific concepts to justify what are really just magical events. In these stories, the characters have access to an array of “black box” implements like the famous “flux capacitor” (an intentional satire) in Back to the Future. The underlying technology of these things is never explained but they are required to make the story work. Hence astronauts are able to fly faster than light by flicking a switch to ‘hyperdrive’, or travel to another galaxy in minutes by going through a “wormhole” and, in Independence Day a scientist disables a massive alien spaceship by uploading a virus from his laptop. In other words, the “science” in these stories is not futuristic speculation, it is just a modern version of the deus ex machina.

But, getting back to Zac Snyder, the troubling thing about Hollywood is that over the last 25 years, the top-end output of the American film industry – which is to say, the so called “tent-pole” big budget, big audience movies - has been completely dominated by fantasy.

Some of those fantasies have been franchises built, parasitically, on successful originals such as Alien and Star Wars. Others have been derived from British works such as Lord of the Rings, The Hobbit and Harry Potter. So successful have these productions been that studios have rushed to adapt other fantasy authors’ works but not all of these worked: The Golden Compass, and Mortal Engines were flops.

The richest source of fantasy has been, however, comic books. Faced with a shortage of literate fantasy in America, the studios turned to illiterate fantasy – wildly fantastic stories illustrated in pictorial form for Americans who struggle with print. The Marvel Universe and the DC franchises have driven theatrical releases for almost twenty years now. So dependent are the studios on comic books that they have remade superhero movies that were less than ten years old to make them seem new. And like the comic themselves, they have sought to prolong the life of character franchises by combining then into ensemble movies with multiple superheroes.

Comic book fantasies however are significantly different from other fantasies. Firstly the characters were all originally designed, and continue to be designed in the movie versions, to cater to male fantasies and male feelings of inadequacy. Their original target audience was, and remains, male adolescents. (bear in mind that adolescence can now extend into the 30s) Even the female superheroes, with their exaggerated builds and tight costumes are male fantasies. The movie makers attempt to disguise the fact the women characters are just centrefolds in Spandex by endowing them some sort of feminist qualities, but this is just cynical appropriation. Has anyone noticed how similar Wonder Woman’s costume is to the Playboy Bunny’s outfit?

The other issue with these fantasies is that the universes they inhabit are incoherent. Unlike the fantasy worlds of Lord of the Rings, Narnia and Star Wars, where the writers have constructed a universe with its own rules, history, geography, races, politics and culture, the Marvel Universe was cobbled together to bring a series of characters that were originally living in separate worlds, into a shared world. As a result, nothing in this “universe” makes sense. Thor, a character from Nordic mythology who lives in Valhalla, somehow co-exists with mutated humans such as The Hulk, technologized humans (Iron Man), vampires (Blade) and psychics (Black Widow). As more and more characters from the vast range of Marvel comics are included, the MCU (Marvel Cinematic Universe) makes less and less sense to the degree that they now have no choice but to call it a “multiverse” containing a set of subsidiary “universes” which in turn contain the multiplicity of competing “teams” such as Avengers, X-Men, Fantastic Four, and Agents of SHIELD.

There is no overall structure to this multiverse nor in any of the sub-universes it comprises. There are no common rules, laws or culture, no explanation of their origins other than the fact that the company came up with all these different but, somehow, similar superhero creations.

There is no sense of actual community amongst the characters in these comic book tales, only a kind of tense camaraderie and sometimes a common origin like being raised together. Whatever their common experience however, the uniqueness of their superpowers, keeps them apart. The whole comic book cosmos is made up of individuals who socially alienated. They are either outcasts, such as mutants rejected by society or people with special powers who must keep their hero identities secret. Others are powerful but disaffected loners like Tony Stark and Bruce Wayne who reinvent themselves as vigilantes battling against an evil world. This population of alienated, angry and differently-abled individuals come together in loose, leaderless, coalitions to vent their anger and defend the world, through violence, from the evildoers which threaten it,

Now, does that not remind you of the mob that attacked the Capital Building on January 6th?

But wait, you say, are you saying that watching Marvel movies turned these people into violent protestors?

Well…. yes! But not just Marvel movies. When you look at the whole range of Hollywood movies on offer at the cinema, on Netflix, Amazon etc. the prevalence of fantasy, and in particular, violent fantasy is overwhelming. Hollywood movies are dominated by a set of genres characterised by pessimism, violence and irrationality. There is a massive number of movies set in an apocalyptic future where either the world is dying, or has died, and people are either surviving in the ruins or trying to escape on spaceships. Note this bears no relation to the kind of space exploration series like Star Trek which belongs in an optimistic future. This genre includes movies where the world as been taken over by zombies, vampires and other aliens. They are basically end of the world fantasies and the underlying theme is survival.

There is another vast genre which can be described as Revenge Fantasies. In this, a father or husband has to rescue his daughter or wife from criminals, terrorists or some other bunch of bad guys. (It’s more exciting if he has to fight a whole gang.) Luckily, the father or husband always turns out to be a cop or ex-CIA assassin. (Boy did they tangle with the wrong guy. Ladies, if you want to feel safe, marry a former professional killer.) There is also a female equivalent – again masquerading under some sort of feminist banner – where a woman is assaulted and takes her revenge with a 9mm automatic. What all these stories have in common is a private citizen dispensing rough justice because the authorities won’t or can’t act against the villains.

A third genre takes this further. In it, the villains are the government. Typically, a mysterious death leads to a massive conspiracy at the top levels of the government, the military-industrial complex, the oil industry or energy companies - almost any corporate body will do. Hollywood has been portraying big business as intrinsically evil for decades.

So, right there we have a series of themes that fuel feelings of paranoia and mistrust. The world is in trouble; we’re heading for destruction; the whole administration in Washington is corrupt and is not only not tacking the problems, it’s causing them; we cannot trust or rely on the police or even the army as they are all controlled by the government, the mob or the CIA which has conspiratorial sub-groups in it – CIAs inside the CIA. The salvation of the world lies with us citizens, brave individuals who will take up arms and stand up to the conspirators and criminals. Otherwise we will not survive.

Again you say, but these are just movies. People know they are just movies. No one takes them seriously.

But they do. And that takes me back to how seriously people discuss movies by fantasists like Tarantino, Snyder and Marvel.

It is apparent from reading fan comments that although these movies which are simply just dumb, formulaic, action packed macho fantasies, that many Americans think they deal with serious themes. And when you look at the violent Trump supporters, the correlation between their beliefs – the world is in danger, the government is evil, there is a conspiracy to enslave and the answer is guns or other weapons  – and the texts of Hollywood movies is to strong to be mere coincidence.

The question is whether Hollywood is the cause, or just a reflection of these mind-sets.

The answer is that it is a cycle. There is a feedback loop between Hollywood and audiences, a feedback loop that operates through both ticket sales and direct research. The studios make a picture that people go to so they make another one just like it. But they push it a bit further. If the audience likes a hero with a big gun, maybe they’ll like a hero with a bigger gun. If they like a movie where the villain is the town mayor, maybe we should try one where he’s a governor. What if he’s a Senator? Or how about the President himself? Sometimes they go too far and have to pull back but, if so, it’s only temporary. When Texas Chainsaw Massacre was released in 1974, it was banned in Australia and many other places. Today it is regarded as a mild splatter movie and we in Australia make movies just as violent. The first revenge movie was probably Death Wish (also 1974) with Charles Bronson. It was also too violent for many people. Today, Revenge is a whole genre led mostly by Liam Neeson.

The escalation and acceptance of violence in movies (to the point where a movie about a psychopath who skins women and another psychopath who eats people won an Academy Award) can only be explained by a reciprocal change in audience’s reactions and tastes. It is not just a matter of desensitization as some people describe it, but a gradual increase in the excitement at seeing violent situations and the desire to see even more action and more violence. Even children’s cartoons, formerly harmless and conflict free, were taken over by violent Japanese cartoons about superheroes and villains in the Eighties

The books people read, the songs they listen to and movies they watch are pretty good indicators of the psychological state of the population. Different countries produce different types of movies which is one of the ways we know there are different cultures across the world. Only perhaps China, with its graphic historical epics and kung fu films, has produced movies as violent as America

The other important thing about the love and acceptance of fantasy films is the issue of logic.

To have an intelligent population, people have not only to be educated, they have to be able to think logically. They have to not only understand logic but respect logic, to know how important logic is to a functioning society. One of the results of the scientific revolution of the 1800s was the advent of the detective novel. The detective genre was unknown before the late 19^th century but was established by the appearance of characters such as Sherlock Holmes who used logic and science to solve crimes. That genre has continued for over a hundred years in the books of Agatha Christie and other detective stories. Many people watch detective books and TV show because they like trying to work out the solution. They also like doing cryptic crosswords and Sudoku puzzles. And this is a good thing: the more interested people are in logic, the less likely they are to believe absurd theories and rumours.

So it is not a bad thing for people to get annoyed when movies are illogical. (I'm defending myself here, as a chronic mistake pointer-outer) We all know that we are supposed to suspend disbelief when we watch fictional creations but with many American movies, belief is not being suspended, it is being hung, drawn and quartered. If the job of the movie maker is to tell a story, it is not only justifiable, but a responsibility to point out when the story doesn’t make sense. Yet, a lot of movie goers seem to accept glaring anomalies in stories. Why is this? I believe the reason many movie goers overlook glaring logical problems in movies today is not because they are suspending disbelief, but because they simply don’t see the logical errors. That is a completely different situation.

All this dovetails with the reality of millions of Americans sincerely believing the 2020 election was rigged, and that vaccines are designed for mind control, that 5G phone tours cause Covid and other beliefs too irrational to even describe.

Can movies that extol the value of intelligence ever overcome the attraction of the mindless movies of Marvel and Christopher Nolan? Probably not. Firstly, because movies about smart people – Imitation Game, Hidden Figures and so on – depict intelligence as belonging only to a people with rare freakish, savant, abilities. Intelligence is not a quality you expect to find in the average citizen. Looks are far more important. Also, because intelligence leads to questioning and analysis, then doubt, and possibly denunciation, derision and denial, it is not something that advertisers, merchandisers, political parties, religious groups, conspiracy theorists, doomsday cults and the entertainment industry want to encourage. It could put them out of business.