On rape, George Galloway has a point

First and foremost, I would like to make clear that this is not an article about that delusional weirdo currently squatting in the Ecuadorian embassy in London. Who wouldn’t be bored and annoyed by the ongoing nonsense that this annoying prat has given rise to? It really is hard to bear. Rather, it is an article about the remarks made by the slightly – and it really is a close call – less annoying George Galloway, who has caused a stir by referring to what is alleged against Assange as ‘poor sexual etiquette’, rather than what it is known as under English law: rape.

Galloway, the Respect Party MP for Bradford West, who is more famous for acting like a cat on television than his views on sexual politics, set tongues wagging when he described the allegations made by two Swedish interns against Julian Assange in terms not fitting with our contemporary hysterical attitude to rape. He said that having sex with someone while they were asleep and without a condom, which is part of what is alleged against Assange, ‘did not constitute rape’. Arguing that it does, he continued, bankrupted the term rape ‘of all its meaning’.

Ever since Galloway made the remarks in the course of a truly weird video podcast on Monday, he has been accused of rape denial, condemned by the leader of his own party, and heavily criticised by rape-awareness charities. He follows in a line – albeit a short one – of prominent middle-aged men who have come under fire for discussing rape. Last year, the justice secretary, Ken Clarke, came under fire for claiming that some rapes were more serious than others. This prompted some to argue that middle-aged men ‘must not pontificate about rape’ – even talking about the ‘r’ word should be off limits to such people.

The hysterical reaction to what Galloway said is telling. It’s telling because he has a point. Since the 1970s, society has experienced a significant expansion of our understanding of what constitutes rape. This has, in some ways, been a positive and important development. In 1992, the House of Lords ruled that sex between a husband and wife was capable of being ‘unlawful’ sex for the purposes of the Sexual Offences Act, meaning that a husband could be deemed to have raped his wife. The inclusion of anal penetration in the wording of the offence by section 142 of the Criminal Justice and Public Order Act 1994 meant that gay rape could be punished. These are positive developments.

But there have been significant negative effects, too. There has been an enormous increase in the number of rape complaints being made over the past 20 years, with no concurrent rise in convictions. This means that many complaints are being made which are without merit and, consequently, many more innocent people are being accused of a very serious crime without evidence. In 2010, two 10-year-old boys became the youngest people ever to be convicted of rape following what many described as a ‘game that went too far’. In a society where the label ‘rape’ can be applied to anything from children playing doctors and nurses, to a man having sex with his lover while she sleeps, to a man pulling a woman from the street and into a bush and forcing her to have sex, Galloway poses a question that many rape campaigners simply do not want to answer: what does ‘rape’ mean today and why is it such a serious crime?

We have become far more aware of rape over the past 40 years. The 1970s saw the establishment of rape crisis centres across the UK and America to facilitate women talking about experiences of sexual aggression. In the 1980s, many scientific studies purported to demonstrate that rape was endemic. One such survey across 32 American campuses concluded that one in four women had been the victim of rape or attempted rape. Another study at St Cloud State University concluded that 29 per cent of women surveyed reported being physically or psychologically forced to have sexual intercourse.

The Department of Justice (DoJ) in the United States even compiled ‘victimisation surveys’ in which representatives of the DoJ would interview a random sample of women in their homes to see if they had been the victim of rape. In accordance with their university counterparts, the American government found rape to be endemic: in 1983 these surveys reported that one in every 600 woman had been raped.

Feminist writers used this newly discovered prevalence of rape to rebrand it from a crime of violence into a crime of ‘power’. According to some, the emergence of endemic rape showed that rape was an extension of the patriarchal power exercised by men throughout society. Writing in 1988, Robin Warshaw summed up the feeling of many feminists at the time: ‘Men are socialised to be sexually aggressive… women are socialised to submit to men’s wills’. Not only was rape now everywhere, but it was caused and propagated by the patriarchy in wider society.

But the drive to expand society’s understanding of rape was dependent on a legalistic understanding of what constituted rape. It required women to view themselves as victims of rape in virtue of the fact that they had experienced penetration by a penis without consenting, and nothing more. This was, in part, an understandable reaction against the prejudices about rape complainants.

But as women were encouraged more and more to measure their sexual encounters against the legal definition of rape, the space for judgement and common sense began to diminish. If women who had been penetrated without consent refused to acknowledge themselves as rape victims they were ‘in denial’. If men questioned whether every instance of non-consensual penetration was rape, they became rape ‘apologists’. Consequently, the drive to bring rape into popular consciousness had a significant side effect: it encouraged us to define our sexual encounters strictly in reference to the law rather than our own judgement.

In fact, this legalistic approach to what constitutes rape has significantly negative effects for our discussion of what ‘rape’ means. Perhaps, most obviously, it encourages the idea that rape is a simple crime, one which is wholly divorceable from any human context. In the language of many rape-awareness campaigners, ‘rape is rape’. George Galloway is wrong to say that this conception robs rape of all meaning – after all, there is no coherent idea of what ‘rape’ means today. But it certainly does rob the term of its social seriousness. While some rape campaigners – and perhaps some pedantic lawyers as well – may seriously argue that a man and a woman in a loving relationship falling into sex while asleep is akin to all other kinds of rape, everyone else in the real world recognises this is nonsense.

But perhaps more importantly, a purely legalistic conception of what rape means is simply a way of shutting down discussion. It is an abdication of our responsibility to define for ourselves what constitutes legitimate sexual behaviour. For as long as we continue placidly to insist that all non-consensual penetration with a penis is rape, we avoid the more difficult question of what kinds of behaviour are and are not worthy of punishment. Human society, and the complex and often ambiguous relationships that constitute it, can never be properly reduced to a handful of words on the statute book. We do victims of rape a disservice by pretending that it can.

So Galloway was right when he said that we need a serious discussion on what ‘rape’ means. While Assange’s lawyers, his supporters and his detractors have spent the week pointlessly arguing about whether the allegations constitute rape under English law, the rest of us should move the discussion on. The allegations against Assange do amount to rape under English law. The more difficult question, one to which neither the Sexual Offences Act nor the Supreme Court can supply the answer, is whether they should.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.