Can consent ever be seen as a 'grey area'? John Humphrys gives his view on this week's big issue
As President Obama faces a tight election in November, and as the British Government presides over a diplomatic stalemate in the streets of Kensington, a highly contentious issue most improbably links the two: rape. On both sides of the Atlantic the question of what constitutes the crime of rape is proving highly controversial. Why?
In America the issue of rape has blown up into a major campaign controversy because of the remarks of Todd Akin, the recently chosen Republican candidate for the key Senate election in the state of Missouri in November. Mr Akin, a strong opponent of abortion, explained in a TV interview last weekend that he did not believe an exception should be made to allow legal abortion for women who became pregnant after having been raped because he claimed that it was very rare for a raped woman to become pregnant. He said: “If it’s a legitimate rape, the female body has ways to try to shut the whole thing down.”
It was not so much the bizarre biology behind his remarks that caused the balloon to go up, but rather his use of the phrase ‘legitimate rape’. He has been disowned by almost everyone in his party. Mitt Romney, the Republican Party’s presumed presidential candidate, called on him to resign his candidature and the remarks have been a godsend to Barack Obama, providing him with evidence to back his claim that his opponents are ideologically extreme and hostile to women. The President said: “Rape is rape. And the idea that we should be parsing and qualifying and slicing what types of rape we’re talking about doesn’t make sense to the American people and certainly doesn’t make sense to me.”
Mr Akin has apologised for his use of language, reaffirmed his view that rape is “an evil act” and is hanging on to his position as Republican candidate by his fingertips. But his casual reference to “legitimate rape” (as though there were some ‘rapes’ that weren’t really rapes at all) exposes the fact that not everyone regards rape as a black-and-white issue. And that’s what has caused the renewed controversy not just in America but here too.
In Britain, the argument has blown up round the figure of Julian Assange, the founder of the WikiLeaks website that published enormous quantities of classified American government documents, many to do with its conduct of the Iraq war.
Mr Assange has been accused by two Swedish women of rape and sexual misconduct and the Swedish government successfully sought his extradition from Britain earlier this year in order to ask him questions in Sweden about these accusations. Mr Assange admits having sexual relations with the two women but denies their accusations. His supporters believe, however, that if he were to go to Sweden, the American government would immediately seek his extradition to the United States to face charges relating not to the sexual accusations but to his WikiLeaks activities. So they are anxious that he should be kept out of Sweden.
When Mr Assange’s legal attempts to avoid extradition to Sweden failed, he sought refuge in the Ecuadorean Embassy in London and last week Ecuador granted him political asylum. But the British Government refuses to allow him free passage to Ecuador, arguing that its prime obligation is to assist his extradition to Sweden. Hence the diplomatic stalemate.
Whatever the pros and cons of Mr Assange’s political activities through WikiLeaks, many people believe that the accusations of sexual misconduct and rape made against him cannot simply be brushed aside.
However, George Galloway, the Respect MP, has fuelled the controversy by claiming that the complaints made against Mr Assange by the two women, even if “100% true … don’t constitute rape. At least not rape as anyone with any sense can possibly recognise it.”
He said in a video podcast: “Some people believe that when you go to bed with somebody, take off your clothes, and have sex with them and then fall asleep, you’re already in the sex game with them. It might be really bad manners not to have tapped her on the shoulder and said: ‘Do you mind if I do it again?’ It might be really sordid and bad sexual etiquette, but whatever else it is, it is not rape, or you bankrupt the term rape of all meaning.”
To many people such a remark will appear no different to Todd Akin’s talking about ‘legitimate rape’ as distinct from sexual intercourse that falls short of rape. Salma Yaqoob, the leader of Mr Galloway’s own party, described his remarks as “deeply disappointing and wrong”.
What the controversy on both sides of the Atlantic amounts to is not a disagreement about whether or not rape is a violent and deeply odious crime, but rather what counts as non-consensual sex (and therefore rape).
The problem may partly arise because of how people tend to imagine rape: as a violent act against an innocent stranger. But such a notion excludes the possibility of rape between people who know each other well, maybe are even married or have had consensual sex beforehand. To exclude such cases, campaigners argue, is to overlook a large part of how rape is actually experienced by many women. To people who argue that rape must be seen in this much broader way (and of course they include not only women), there should be no controversy about the crime of rape because there is only one criterion that matters: consent. To them, consent is consent is consent and without it, sexual intercourse is rape.
But to others (and not just men) it is not as simple as that. Of course, in theory consent is everything but in practice it may be more difficult to determine, they suggest. It’s not as if signing a legal document with witnesses is part of foreplay. Rather, the issue of consent is something that is often understood only implicitly, it’s argued: two people try to read each other rather than break off what they are doing in order to ask the explicit question. And so, inevitably, they can sometimes get it wrong. Subsequently to accuse a man of rape who got it wrong in such circumstances is unjust, it’s argued.
But such a nuanced approach is simply a licence to rape, according to those who believe that for too long women have been the unrecorded victims of men’s sexual appetites. If consent has to be explicit, then so be it: men should no longer be able to get away with the defence that they merely thought the woman had agreed.
To many older people the whole controversy may seem particularly strange and difficult. For the world they see their grandchildren inhabiting is very different from the one they knew when they were young. Now casual consensual sex is much more the norm. The young drink more and they take drugs; they put themselves in circumstances where the expectation that they will end up in bed with each other is much greater; they seem less in control of themselves. Is it any wonder, the grandparents ask, that the issue of consent has become much more difficult to determine? And if that is the case, how are young women to be protected from being raped?
What’s your view?
- Do you think Todd Akin’s talk of ‘legitimate rape’ was legitimate or not?
- Do you think Julian Assange should be deported to Sweden or not?
- What do you make of George Galloway’s remarks?
- Do you have experience yourself of occasions when the issue of consent was not wholly clear?
- Do you think the ‘grey’ area of consent is leading to too few men being charged with rape, or too many?
- To what extent do you think the permissive nature of youth culture is increasing the incidence of rape?
- And what measures would you propose to reduce the chances that women will be raped?
Let us know your views.
