Sex, crime and seduction

The new Sexual Offences Bill currently going through the British Parliament follows a major review of sexual offences law by the Home Office in April 2000, published as Setting the Boundaries. Reading through the latest bill – 98 pages of sexual offences – you cannot help but question the assumptions underpinning it.

Setting the Boundaries was a well-meaning but deeply flawed attempt to reconcile law with a culture of victimhood. Its logo – a shattered pane of glass – suggested a society both brittle and fragmented.

Its goal was to deliver effective protection to all (1). Nobody disputes that vulnerable groups, for example, children and the mentally disabled, deserve proper protection from sexual abuse and exploitation. But as Philip Jenkins pointed out in his 1998 book Moral Panic, protection is a double-edged sword, suggesting that people are endangered and need more than the usual safeguards. To protect is also to control and to regulate (2). While paying lip service to the concept of adult autonomy, Setting the Boundaries and the new bill expand the concepts of harm from which we must all be protected.

Frottage in the Underground is one of many menaces raised; another is the danger of being coerced into sex by a threat of killing the family pet (3).

Setting the Boundaries is riddled with clichés and tendentious statements. Rape is called (without irony) a ‘fate worse than death’. It is assumed that sexual assault involves lasting ‘trauma’; even being flashed at is viewed as a traumatic event. It constantly refers to ‘victims/survivors’ – the rhetoric of rape-crisis feminism. The notion of consent is criticised because it implies an imbalance of power and connotes agreement by a subordinate; instead, Setting the Boundaries calls for ‘a negotiation between equal partners’ (4). This is a sanitised view of sex.

The new bill expands the concept of rape, to become any penile penetration of the mouth, anus or vagina. And there is a new offence of ‘assault by penetration’, where a person intentionally sexually penetrates another’s vagina or anus with a part of his body, or any other thing.

A striking feature of the proposed new legislation is its reliance on the concept of ‘a reasonable person’. According to clause 80:

‘penetration, touching or any other activity is sexual if:

a) from its nature, a reasonable person would consider that it may (at least) be sexual, and

b) a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.’

The reasonable person pops up again, in the definition of consent to sexual intercourse or other sexual touching. An accused person (‘A’) will now be guilty of rape or sexual assault on another person (‘B’), where:

‘(a) a reasonable person would in all the circumstances doubt whether B consents, and

(b) A does not act in a way that a reasonable person would consider sufficient in all the circumstances to resolve such doubt.’ (5)

Is the reasonable person a man or a woman? What intelligence and experience does the reasonable person have? And what is ‘reasonable’ when you’re having sex? In the bill, the reasonable person sounds like a fictive sexual chaperone. The shift away from an accused’s subjective intent to some third-party definition of criminal intent is ominous.

Setting the Boundaries offers the following justification: ‘By allowing the belief of the accused to be paramount, the law risks saying to a victim/survivor who feels violated and betrayed that they were not really the victim of crime, and that what they thought, said or did was immaterial.’ (6)

But if someone is accused of a criminal offence, it is his state of mind that is subject to legal enquiry, and his liberty that is at stake.

Normally, in criminal trials, the prosecution has to prove two elements of an offence: the criminal act, and the criminal intent. What if someone makes an honest mistake? The law sees him as morally innocent. So under existing law, an accused has a defence if he honestly, but mistakenly, believes that a woman consented to have sex with him.

The House of Lords laid down the present test in 1974 (7). The facts of the case were shocking: a man called Morgan told some mates of his to come round and have sex with his wife. He claimed she was ‘kinky’ and that any resistance on her part could be ignored. Mrs Morgan struggled, and screamed to her son to call the police, but was gagged and overpowered.

The jury convicted. But the Lords was asked to clarify whether, in principle, a man should have a defence to rape based on an honest but mistaken belief in the woman’s consent. The Lords ruled that if a man does make an honest mistake, he cannot have the necessary criminal intention to commit rape. Obviously, the jury has to decide whether it thinks the man is honest, or just blagging.

In a scenario like Morgan, a jury needs little persuading that the woman is a victim of an exceptionally brutal assault. But critics of the Morgan principle say that it lets rapists off the hook, arguing that it encourages ‘myths’ about sexual behaviour and ‘undermines sexual autonomy’. Therefore, men should be required to show that they took reasonable steps to see if the woman was consenting. This approach, which features in Canada’s 1985 Criminal Code, is just as stereotypical: it assumes that women are frail creatures, who must be protected from sex and can’t be trusted to make their own wishes clear (8).

What about when a man meets a woman in a nightclub, they both have had some drinks, she accepts an invitation back to his place, and they start making out? According to purists, the man still has to ‘take care’ that his partner is consenting: he ‘only has to ask’ (9). Perhaps he should give the woman a breathalyser test as well (just in case).

But this effectively downgrades rape to negligence, a failure to ‘take care’. In which case, what is it doing in the criminal courts at all?

Antioch College in Ohio, USA takes this idea of PC sex to its logical extreme. Its sexual offences code says:

‘In order for “consent” to be valid, all parties must have unimpaired judgement and a shared understanding of the nature of the act to which they are consenting, including safer sex practices. The person who initiates sexual conduct is responsible for verbally asking for the “consent” of the individual(s) involved. “Consent” must be obtained with each new level of sexual conduct. The person with whom sexual conduct is initiated must verbally express “consent” or lack of “consent”. Silence conveys a lack of consent. If at any time consent is withdrawn, the conduct must stop immediately.’ (10)

This is where we are headed. The Canadian Supreme Court has also ruled in R v Ewanchuk that no one has the right to sexually touch another unless that person clearly communicates consent. The case involved a woman who agreed to give (and to receive) a massage, but objected to things going further. The Court decided that no man is allowed to ‘test the waters’, once a woman demurs. A woman judge said: ‘One “no” will do to put the other person on notice that there is then a problem with consent. Once a woman says “no” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “yes” before he again touches her in a sexual manner’. Such a view of sexual encounters is simplistic and legalistic.

But the Court refused to treat mutual massage as having any sexual connotation, saying it was time to debunk ‘inappropriate myths and stereotypes’ about women and rape. Though this was not a rape case, it suggested that half of Canadian women experienced physical or sexual violence – as if such an improbable statistic justified riding roughshod over men’s rights. Consent, it said, must be affirmatively established: silence, inaction or ambiguous conduct are not consent. The Court stated that this was necessary to safeguard everyone’s personal autonomy and bodily integrity (11).

It comes as no surprise that one of the authors cited to the Canadian Supreme Court was US law professor Catherine A MacKinnon (12), who has famously remarked: ‘Politically, I call it rape whenever a woman has sex and feels violated.’ (13)
But autonomy means that each of us has the right to decide what happens to our own body. It shouldn’t depend on other people having to ‘take care’ of us. If someone has to take care of you, you aren’t autonomous.

Camille Paglia calls MacKinnon a totalitarian who wants a risk-free, state-controlled world. ‘There is such a thing as seduction, and it needs encouragement rather than discouragement in our puritanical Anglo-American world’, says Paglia. ‘The fantastic fetishism of rape by mainstream and anti-porn feminists has in the end trivialised rape, impugned women’s credibility, and reduced the sympathy we should feel for legitimate victims of violent sexual assault.’ (14) Yet it’s disturbing just how influential MacKinnon’s dystopian notions have been among victims’ groups, academics, judges and policymakers (15).

The modern approach to sex offences has little to do with human rights. It is really concerned with patrolling sexual behaviour, and protecting spiritual women from animalistic men (a stereotype also invoked by nineteenth-century ‘social purity’ campaigners) (16).
There is no point in such a radical change to our criminal law, as a symbolic gesture to people who ‘feel violated’. The significant fall in convictions in rape cases is unlikely to be affected by it. If you are a rapist, you’ll say that you checked and she said ‘yes’. But it will encourage unrealistic complaints of rape and hopeless prosecutions. And it will have a chilling effect on human relationships.

Barbara Hewson is a barrister at Hardwicke Civil

(1) Home Office, Setting the Boundaries: Reforming the Law on Sexual Offences (2000) Vol 1, para. 0.6, 0.24

(2) Philip Jenkins, Moral Panic, Yale University Press, 1998, p225

(3) Setting the Boundaries op cit. paras 2.14.1, 2.14.4, 2.10.9

(4) Setting the Boundaries op cit. paras 2.10.8, 2.10.1-2, 2.4.3, 2.8.2, 2.8.7, 2.4.2

(5) Sexual Offences Bill, cl. 1(3), 3(3), 5(3)

(6) Setting the Boundaries op cit. para 2.13.2; and see para. 2.7.5

(7) DPP v Morgan [1976] AC 182

(8) Katie Roiphe, The Morning After: Sex, Fear and Feminism, Hamish Hamilton, 1994, pp 62

(9) Setting the Boundaries op cit. paras 2.13.7, 2.13.10-11

(10) Antioch College Survival Guide 2002-2003, ‘Sexual Offence Prevention Policy (SOPP)’, 23 April 2002

(11) R v Ewanchuk [1999] 1 SCR 330, paras 49, 51-2, 64-6, 68-75, 82, 86-7, 90, 93-7, 99, 103

(12) MacKinnon’s Towards a Feminist Theory of the State (Harvard, 1989) cited by L’Heureux-Dubé J. at para 82. The Women’s Legal Education and Action Fund (LEAF), which has worked closely with MacKinnon on a number of cases involving gender equality, was an intervener in this case.

(13) Catharine A MacKinnon ‘A Rally against Rape’ in Feminism Unmodified: Discourses on Life and Law (Harvard, 1987), p82. MacKinnon dedicates this book to Andrea Dworkin.

(14) Camille Paglia, ‘No Law in the Arena’ in Vamps & Tramps (Penguin, 1995) p25

(15) On the construction and institutionalisation of claims and victims, see Joel Best, ‘Beyond Instances’, ‘The New Victims’ and ‘The Victim Industry’ in Random Violence (California, 1999). And see Joel Best, Threatened Children (Chicago, 1992); Frank Furedi, Culture of Fear (Continuum, 2000) chs. 3-4

(16) See Judith R Walkowitz, Prostitution and Victorian Society (Cambridge, 1980) p256