"Rape is Rape" - Judge Mary Mowat

When reading an article in the Spectator this week, I came across this case.  With my current reading material including 'Everyday Sexism' by Laura Bates, and 'Eve Was Framed' by Helena Kennedy, it all seemed incredibly relevant and completely built on what I have been seeing more and more: there needs to be more clarity in the law regarding rape and sexual assault.

The main vein of the article revolved around the fact that implying that all rape is the same cheapens the incredibly violent or degrading experiences of some women, when comparing with other situations where perhaps the woman consented - but only after consuming a large amount of alcohol. This seems to make sense: not only might it help for courts to take some rape cases more seriously, but it would allow even women who are in the situation of having been plied with alcohol know where their case stands in the eyes of the law.

Basically, the issue of alcohol and consent is always going to plague us.  Alcohol is a drug that lowers inhibitions, and we have to decide whether or not that should act as a mark against the victim (for making themselves vulnerable) or whether it should be a mark against the perpetrator (for taking advantage).  Personally, I'm in the camp that 'no' means 'no', and that it's frankly a little insulting to men in general to argue that men can't help themselves if a woman is looking particularly attractive.  If a woman is drinking (of her own volition) and then says 'yes' - then any later regrets are her fault, not the man's.  If a woman says that she's not interested, but then the man hangs around until she is drunk and then propositions her again, then maybe it's a bit more murky. For me, it hinges on whether the man knows that if she was in her right mind, she would have said no.

There's a reason that such a small proportion of rapes are taken to court, and it's not just because the subject - to many - is taboo.  The system needs clarifying for women to be fully protected by the law - any ambiguity leaves wiggle room for guilty people to be released on a loophole.  For me, I think this could be done to some extent through case law - if a few standout cases are looked at, where the case is a clear example of a scenario, then this could be used as something to gauge the guilt of people in similar situations.  Difficulty arises when different judges have such polarised views - and ideally, I would argue that perhaps a panel of judges might be appropriate - but I don't really know whether that would be feasible.

What is Consent?

Definition Round Three!  So, consent, Google dictionary says "Permission for something to happen or agreement to do something."

 Unfortunately, it's not that simple.  There are a whole plethora of complications when it comes to the application of consent, and sometimes although you "actually" consent, you "legally" do not.  The example I'm going to use for this is the example that was used at the Cambridge Open Day in the Law sample lecture.

I have £1, and you need to borrow it from me.  I know that you always play the lottery on a Friday (and in this hypothetical situation, it is Friday) and I also know that you left your wallet at home.  I can gather that you're ashamed that you're playing the lottery with my money, so I'm still happy to give you my pound coin even though you told me that you needed to buy a birthday card for your mum.  I feel that I'm consenting to you using my money to buy the lottery ticket, even though you're currently lying to me.  In fact, by giving you the £1 despite knowing that you're lying, I'm making you a thief - as there was an attempt to mislead me, and I was "cheated" out of my money.

In fact, I'd be doing you more of a favour if I randomly gifted you my money.  The premise of borrowing makes matters even worse.  It would be seen as stealing if you didn't give me that exact pound coin back, as the law doesn't allow for  exchange of similar or equivalent property.  The intrinsic value of the money is superfluous, as I had specific ownership over that exact £1, and the law would expect for me to receive it back. 

This makes sense, if you think about it.  If you were to lend me your car, and I brought back a different car of the same value, you wouldn't be too happy, would you?  (Let's presume this is a particularly unattractive car).  So, for the law to protect your rights over your property, it has to count for the small things as well as the big things.

And even then, when does consent count in the first place?  You might consent to me chopping your arm off for no reason, but that doesn't mean that I'm not going to be prosecuted for it.  There is some area where the law protects us from things that we may have given consent to.  This idea is about a paternalistic government is condemned by those of a liberalist standpoint, as the restriction of freedom should be avoided in all circumstances.  This would mean then, that the condemnation of sado-masochistic activities would be seen as wrong, although by mainly liberalists.

Despite this, consent is still questioned or challenged in court every day.  Yes, the old man with dementia did give "consent" to the blonde money-grabber to empty his bank account - but should that have been allowed to happen?  Consent only matters if it was informed and non-destructive, I can gather - but should the government ever have a right to interfere in your choices, or claim that you were incapable of making them?

Your thoughts please :)