27 May 2013

Contributory Negligence — Not.

Nick Ross got into more than a spot of bother because of an extract of his forthcoming book in the Mail on Sunday on 26 May was interpreted as rape apology. His publishers posted the full chapter on-line, and you can read it here.

He sort of compares rape* with a couple of other scenarios. In one, he leaves his laptop in the car, and when it gets stolen, feels that he has contributed to the theft. Indeed, many people would say that he brought it upon himself — and this is the same logic that is applied to “victims” of rape — through their dress, or by getting drunk, they have only themselves to blame for what happens to them.

However, this thinking isn’t correct. Certainly, there is a concept of “contributory negligence” in common law; but it is usually applied to civil actions for damages rather than in criminal cases. To use the laptop example, were Nick Ross to try to get compensation from his insurers, they would be likely to reduce or deny his claim because of his negligence.

But, if the laptop thief were to be caught, Ross’s negligence wouldn’t stop a prosecution for theft, a conviction for theft and subsequent punishment. A theft is a theft; yet somehow, a rape isn’t always a rape. What’s the difference?

And that’s the problem with arguments about whether rape is rape, and whether all rapes are equally serious. You might well think that the woman was somehow responsible for getting raped, but this is a moral judgement, not a legal one. Either a crime has been committed or it hasn’t.

There are other difficulties with convictions for rape; the woman is simultaneously the accuser and the primary witness, and her testimony does have to be legally tested through cross-examination. This is often harrowing — and until recently the alleged rapist, defending himself, could be quite brutal in his questioning. And, her previous sexual history can be explored — certainly this was the case until recently, I don’t know if this has changed. Quite how this previous history was supposed to directly help convict an accused isn’t obvious; the accused is the one charged, he doesn’t have to relate his history of previous  accusations or convictions, but, in a sense, the woman does — seemingly to prove just what a “slut” she is, someone whose word cannot be trusted in any way because she is a “slut”. Being a “slut” is another moral, not legal, argument. And, during directions to the jury, judges have, in the past, made some very crass statements — “no” can mean “yes” and the like. (I read an account of a rape trial where the accuser, whose occupation was withheld by express direction of the judge, seemed to have been designated a “slut” because of a tattoo on her abdomen. The accused was found not guilty; but the expressions on the faces of the jury changed when it was revealed that she was a barrister.)

Accusations of rape are sometimes made after some time has elapsed, with the accuser relying on her memory. This is tricky — not just for rape — because what we think we remember of an event is largely fictive. It’s a combination of bits that are accurately remembered, and bits that have been invented, with the whole presented more as the way we wish to remember things, rather than a literal transcript. Identification parades can be quite unreliable.

Politicians haven’t help to clarify the problems around rape and securing convictions. Recently, in the US, one talked of “legitimate rape” as being one where the body “shuts down” and pregnancy becomes impossible, claiming that he’d been told this by physicians. Today, we think of this as utter rubbish. But, in the time of Henry VIII, it was believed that, for a woman to become pregnant, she had to have an orgasm. If she complained that she had been raped, but was found to be pregnant, it was “obvious” that she had enjoyed the experience, and therefore couldn’t have been raped. Incidentally, the necessity for an orgasm to precede pregnancy was said, at the time, to be the reason why Henry had such difficulty in getting his wives to conceive.

A couple of years ago, a Canadian cop gave a talk to a group of young women, advising them not to dress as “sluts”. The response was immediate; “slut walks” were organised in many cities worldwide, women protesting to be allowed to dress as they choose. The cop was well intentioned; but before you foam at the mouth with rage at the insensitivity of his remarks, remember that in the UK you can get the Crime Prevention Officer to inspect your home, and advise on security measures. Again, what’s the difference?

*For simplicity, I’m only considering men raping women; I do know that things are much more complicated.

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