Saturday, 28 March 2009

Sex and consent

Chef Peter Bacon of the United Kingdom has recently been acquitted of the charge he raped a lawyer. The outcome of the trial raises some interesting questions. Bacon's name was not suppressed at the time of accusation. So even though he has not been found guilty of a crime, he does not retain anonymity. He may therefore possibly be judged by many who reject the court's verdict. Interestingly the plaintiff has name suppression despite the outcome implying she falsely accused Bacon.
In addition, he questioned why his alleged ‘victim’ received automatic lifelong anonymity, while he was named as an accused rapist.

In a statement read by his solicitor, he said: ‘This case seriously calls into question the lack of anonymity for people like Peter who have been wrongfully accused of rape, and who are ultimately acquitted.’
Having a claim not upheld in court does not necessarily imply lying, it may be the case that one's claim is true but not criminal, or one's claim lacks evidence to attribute guilt. These possibilities seem less applicable in this case as the activity is not disputed, rather the motive.

Personally I think that all cases should have name suppression until a verdict is reached. Innocent defendants should retain anonymity indefinitely. This may be impossible in cases of public figures. I also think that video and audio streams from courts should probably not be allowed, nor reporting on cases prior to a verdict. Though these are topics for another time.

What I want to discuss is the issue of consent as it relates to sexual behaviour. Bacon and the lawyer agreed that sex took place, the lawyer on the testimony of Bacon as she herself denies recollection of the event.
The woman’s claims that she could remember nothing of her alleged rape also raised questions about why the Crown Prosecution Service decided to continue with the case, at an estimated cost of £90,000 to the taxpayer.

A jury of seven women and four men took just 45 minutes to find Mr Bacon not guilty, after hearing three days of evidence.

They had heard his accuser, a 45-year-old woman, claim that she must have been raped because she was too drunk to have consented to sex.

The woman, a lawyer who described herself in court as a ‘recreational binge drinker’, said she found Mr Bacon lying in her bed one morning with no memory of what had happened.
Her claim of rape is based on her claim of inability to consent. There appears to be legal precedent for this in UK law.
She immediately accused the university student of taking advantage of her, shouting that the law had been changed because of ‘f*****s like you’.

In 2007 the Appeal Court ruled that a woman who is drunk may not be capable of giving her consent to sex, even if she is still conscious.

But juries are still asked to make their own decisions about whether they believe a woman was sober enough to consent, and whether a man could ‘reasonably believe’ that she had consented.
Consent is a complex topic. The issue is not helped by ambiguous use of the term "rape." The use of the term "statutory rape" is most unfortunate; as if the inappropriate petting of 2 teenagers is morally equivalent to abuse by a stranger breaking into one's home.

There are several possibilities I see for consent; listed below with examples.
  1. Ability to consent and consent given
    • Within a marriage
  2. Consent refused
    • An unknown aggressor
  3. Consent unable to be given
    • When someone is unconscious or severely intoxicated with alcohol or drugs
  4. Consent given but unreliable
    • A person significantly under the influence of alcohol or drugs
    • A person who is incapable of understanding consent
      • Intellectual impairment
      • Severe dementia
  5. Consent given but illegal
    • People are below a legally defined age
    • In jurisdictions where sex outside of marriage is illegal
There is minimal issue with item 1. One could ask whether or not marriage allows for someone to refuse consent under usual circumstances (1 Corinthians 7:1-7). Even if refusal is not generally allowed that does not confer a right on the aggrieved party to enforce otherwise.

Item 2 is acknowledged as rape within Western government. Ancient cultures may have thought otherwise at times. A distinction would have been made as to whether the woman was betrothed/ married or a virgin. In ancient Israel for a man to have sex with an otherwise married woman was condemned regardless of consent (Deuteronomy 22).

Items 3 and 4 depend on the actions leading up to such a state. In a similar UK case where conviction was overturned on appeal one of the judges said that
sex amounts to rape if the woman is incapable of giving consent.

But he added: ‘Where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.’
Intention always needs to be assessed. One cannot compare situations is isolation from their relevant history. If a person voluntarily consumes alcohol to such a state where their judgment is impaired, the prior choice to consume alcohol or drugs is such that a person retains responsibility for their actions, even foolish ones they would be less likely to make when sober. One cannot choose to partake in activities with known consequences and refuse culpability for such consequences. One cannot choose to chemically alter one's state of mind and deny culpability for actions taken during such states.

This contrasts with people who are drugged without their knowledge. Because the altered state of mind that one struggles to control is due to the action of another, culpability is partially and possibly completely removed from the drugged person. This situation is somewhat similar morally to when people are unable to understand consent by their intrinsic nature, though there may be caveats.

The last situation should not be considered an issue of consent and should not be labelled rape or statutory rape. By conflating this with item 2 one minimises the seriousness of the usual understanding of rape. The government may still wish to have such laws and I will not argue here for or against such laws. But the crime is best labelled something like "illegal sexual activity" and prosecuted under separate laws.

Questions were also raised as to why Brown was prosecuted. It was defended by the prosecution.
A Crown Prosecution Service spokesman defended the decision to take the case to court.

She said: ‘The Crown Prosecution Service takes allegations of rape very seriously and after receiving a file relating to Peter Bacon from Kent Constabulary, two CPS rape specialists carefully reviewed the evidence.

‘They decided that there was sufficient evidence for a realistic prospect of conviction and therefore decided that Peter Bacon should be charged with rape.

‘The ability of the complainant to consent was clearly an issue in this case.
Rape is a serious crime. However rape allegation is not rape. Rape allegations are serious if they are true, and serious if they are false; but in the case of false allegations it is a serious crime against the defendant. One should take it seriously, but with a view to all parties.

There is another very important issue here that has not been addressed but needs to be by those who would call such behaviour rape. I don't agree that voluntarily entering a mind altering state removes responsibility, but if we concede this point we are left with the possibility that both people may be in a situation where they are unable to make good judgments.

What of the case when both people are intoxicated? The person who may otherwise decline sex is deemed unable to give consent, but the person who desires sex may be deemed unable to assess consent. If someone is intoxicated enough that they consent to sex but their consent is invalid and they are not culpable for their decisions in such a state of mind, then why is the intoxicated person who accepts such consents culpable? Surely if her blood alcohol level means she is not responsible for her "yes," then his blood alcohol level means he is not responsible for his "okay."
Wine is a mocker and beer a brawler; whoever is led astray by them is not wise. (Proverbs 20 NIV)

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