realitycheck(dot)ie

Irish doctor with too many thoughts, too little time and a blog that's supposed to check in on reality.

Wednesday, September 13, 2006

Common Sense about Rape

Fatmammycat.com a blog I read a lot and should link to more has a very interesting piece on date rape , slutty behaviour and that red-light trigger word "deserve".

Drinking until they pass out, acting with sexual aggression, celebrity pole notching, kiss and tells, dressing like porn stars and taking more and more risks.
It is an unpopular thing for a woman to say-I know I always get slated by my female friends whenever I say it- and sister of my friend gets particularly angry about it, but while yes, every woman has the right to be safe and not assualted or raped, those rights must go hand in hand with good sense.
If you are a young woman, staggering down a dark street, blind drunk, with hardly any clothes on, in the middle of the night, it does not mean you 'deserve'(I am really starting to hate that word) to get raped, far from it. But if you do get raped following the above scenario, you do need to ask yourself, did I practice good judgment? I don't deserve this, but was there anything I could have done to minimise the danger I put myself in.
At the end of the day rapists doesn't give a fiddler's fuck about rights, girl power, deserve, Sun campaigns, bloggers or consent. What the rapist is looking for is vulnerability. And that is something where we women can hold the upper hand.


Camille Paglia's opinions on date rape have had a similar ring of common sense about them -
"...feminism, which has waged a crusade for rape to be taken more seriously, has put young women in danger by hiding the truth about sex from them.
"In dramatizing the pervasiveness of rape, radical feminists have told young women that before they have sex with a man, they must give consent as explicit as a legal contract's. In this way, young women have been convinced that they have been the victims of rape."


(happily culled from Wendy Elroy's site - tried finding a different quote from Sex, Art and American Culture but my paperback version doesn't have a search function)

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10 Comments:

Blogger Fence said...

I think the problem here might be language. You have to take responsibility for your actions, but that doesn't mean that if you are stupid you are to blame for anything happening. It is a subtle difference, but, I think, an important one.

September 14, 2006 10:20 a.m.  
Anonymous NineMoons said...

Taking steps to protect yourself from rape or prevent harm from coming to you is a good idea. Failing to do this might be contributory negligence, if you were suing your rapist in tort! But rape is a criminal offence. Doing it, intending to do it - it's the rapist's fault you were raped. Not yours. You might be stupid, you might be careless, you might do everything one would imagine might very well lead to being raped but as Fence says, you're not to BLAME. You could do everything right and be as careful as possible and still be targetted because you have blonde hair or for some other arbitrary reason.

September 14, 2006 10:38 a.m.  
Anonymous Noz said...

First, I can't agree with ninemoons that failing to take precautions could amount to contributory negligence in tort. An assault is not negligent, it is intentional. You can't 'contribute' to the intention. That's called consent. And then the issue of assault doesn't arise.
Second, while the quote from fatmammycat.com makes a lot of sense, I can't say that i'm equally as comfortable agreeing with the quote from Camille Paglia. The result of agreeing with statements like her second paragraph is that we get rape laws like we have at the moment, whereby an unreasonably mistake by the man as to consent by the woman is deemed a valid defence. It also leads to laws like the new one from your beau, Auds, Michael McDowell, where an 'honest' mistake as to the girl's age is enough of a defence. Again, this doesn't seem to require that it be reasonable. Essentially THAT is why the focus on explicit consent is important in my view. It's not necessarily a feminist-only viewpoint. I think explicit consent makes more sense than the current law.
Sorry, really long comment, but this topic interests me!

September 14, 2006 12:22 p.m.  
Anonymous NineMoons said...

But in the tort of trespass to the person (which covers assault and battery), the standard is one of intention or negligence, if harm is the result of a direct impact. I could be mixing it up though - I'm not overly familiar with cases involving suing over sexual assault, other than suing for vicarious liability. Plus, criminal's my area, not tort! I know gross negligent rape is a category that has been introduced in some criminal codes - not in Ireland though.

I don't know what other term to use to describe it though.

Also, the honest mistake as to a girl's age in statutory rape does have to be reasonable - court has to have regard to "the presence or absence of reasonable grounds" for his belief.

September 14, 2006 1:39 p.m.  
Anonymous Noz said...

Re assaults: are you sure negligence is enough to make out the claim? If so, I guess a negligence standard re consent could give rise to an idea of contributory negligence. But if the standard is 'intentional', then I don't think it would be possible to introduce a contrib. negl. idea - probably why there's no term for it? But you could be right! So I won't argue it! :o)

Re: new statutory rape legislation - is that not exactly the same idea as is in current rape legislation i.e. jury may have regard to reasonable grounds for (mistaken) belief? I.e. the exact same as the R. v. Morgan case from the House of Lords, which essentially means that an 'unreasonable' story (ie not what the 'reasonable man' ought to have done), if believed by the jury, is enough to succeed in rebutting presumed intention? Therefore it doesn't have to be reasonable, though one would hope that a jury would see through an unreasonable story, as in Morgan case above. (However, I don't think that is secure enough standard of protection and would prefer to see a simple 'reasonable belief' test introduced into this area of the law.)

September 14, 2006 2:25 p.m.  
Anonymous NineMoons said...

No, I'm not sure, which is why I said I could be mixing it up.

I believe that it is a Morgan test alright. I prefer a mixed subjective-objective test myself, given the subject area, but each to their own.

September 14, 2006 3:10 p.m.  
Anonymous Noz said...

The reason that I don't like the mixed test, and also that I objected to Auds' quote from Camille Paglia, is that I think such tests are really a figment of the imaginations of law professors and academic textbook writers, as the purpose of a legal standard/test like that for consent is that it is the purpose of the law and not the fact-finder to determine legal standards. It is the purpose of the law to decide what the standards of behaviour in society ought to be; that's not a task to be left to the whim of a fact finder. In the light of the subject area here, i think it's more important than ever that standards be set clearly. Which is probably also why i agreed with Auds' first quote above, from fatmammycat.com.
As I said, the area interests me, hence the drawn-out discussion! :)

September 14, 2006 4:32 p.m.  
Anonymous NineMoons said...

I just think completely objective tests, particularly in the case of acquaintance rape/'date rape', can ignore the human reality of the situation. Irish law in general tends towards mixing a dash of subjectivity in there. Which I've always been keen on - even wrote a paper entitled "Let the reasonable man be impotent." Heh.

September 14, 2006 7:46 p.m.  
Anonymous Noz said...

That sounds really interesting. Usually i'm in favour of the irish subjective leaning. I suppose my issue is that i think in these circumstances, i want a law that sets the standards of what the human situation should be. I think there's too little respect generally and one of the few ways of changing that is to up the standards demanded of people. Maybe you feel the criminal law is not the right vehicle for this. But i think it is, as the last bastion of acceptable standards in society... If that makes any sense!! :)

September 15, 2006 3:12 p.m.  
Anonymous NineMoons said...

I would agree with that - to a certain extent. Criminal law can be a certain, fixed moral standard, showing what our society SHOULD be like. It should not reflect society, but rather show society how to be (like that line out of Angel "we live as though the world is as it should be, to show it what it can be.")
But then when I studied criminology, I learned more about sociology and came to the depressing realisation that that view of criminal law isn't really of all that much practical use!

September 18, 2006 1:40 p.m.  

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