Consent, Rape and Nick Ross

Consent and choice are really tricky concepts. In an earlier post I asked how free a Muslim woman really is to not wear a burqa if that means she may be ridiculed or even hit. If a Muslim woman goes to work and a colleague asks “did you choose to wear a burqa?”, how meaningful is the answer “Yes, I chose to wear it so that my brother doesn’t hit me”.  I admit now that this type of environment is not common place, but it is common enough for me to have seen it before. But the important thing to notice is that the woman believes she has consented to wearing a burqa, even though she clearly hasn’t. Consent isn’t a binary issue; we recognise that with “peer pressure”.

The issue would look very different if someone held her at knife point every morning and demanded that she wear a burqa. But how different it is, fundamentally? Although all the risks and consequences are the same, the woman probably would not get to work believing that she had chosen to wear the burqa in this situation.

I believe that consent should be recognised as a hierarchical concept: free consent; pressured consent; violently pressured consent; denied consent.

This difference extends to all manner of liberties, rights and consent based issues. But, as my goal here is to defend Nick Ross, I’m going to have to talk about rape. So I need to make a single point clear, because I don’t want it to be over looked: all rape is destructive; no rape is okay; all rapists should be punished and treated with contempt and never, ever, excused! It is emotionally insidious and physically violating and it’s horrific. Even though I am about to argue that there are gradations of rape, even at the bottom of the gradation this is still true. To be clear here, I think “freedom” is the right criteria for emotionally healthy sex. Anything short of “free consent” is rape; limiting another person’s options diminishes the very concept of consent. Consent under any level of emotional or physical duress looks like consent, and we need to be sympathetic to the victims on that point, but it is not really consent.

We all seem to know that most rapes go unreported. I’m not sure how we know that, because they’re not reported. But it certainly seems to be true, crime shows can often find a victim that hasn’t reported the crime and when a celebrity is revealed as a sex offender enough other victims come forward to suggest the celebrity is a serial sex offender. To me, this suggests that the main reason people don’t come forward is because they worry about the security of that process.

But of everyone I know who has been a victim of rape, according to the legal definition (that was horrific to write: “of everyone I know…”) most of them think it wasn’t rape. They are all victims of their boyfriends or playful acquaintances. And because there was no punching and no weaponry involved, and they weren’t kidnapped, and these were people they’d had sex with before, they didn’t consider it rape. But the guy did scare them and he limited their options very quickly. The fear of reprisal quickly diminished their options and made the concept of “consent” nonsensical (or “pressured consent”, as my hierarchy of consent goes).

Because in the eyes of the law rape is rape and there is no gradation, this low-grade (but still destructive and insidious) rape isn’t recognised by the victims. And that is who needs to recognise it! Because calling what happened to them rape means grouping it with the kind of rape that includes women being beaten up, kidnapped, hospitalised and terrorised at gun point, they refuse to call what happened to them rape. And that is as good as permitting it! And that is not what the victims or the police or the public want. In fact, the only person who wants that is the rapist.

My hierarchy of consent falls apart where drugs and alcohol are concerned. A sober person can give consent, or give consent under duress, or deny consent (and thus be physically forced). But an intoxicated person can fail to give any acknowledgement of consent. No acknowledgement or consent is definitely “no consent”, but it is not the same as the violent example I give above. It is definitely rape. But again, using the perspective of the victims as my defining point here, many of them would not consider that rape. Again, this is probably true because it means grouping that with the violent rape. So, again, it becomes permissible because the victims themselves don’t recognise it as rape, when it clearly is.

Nick Ross, in his new book Crime talks about sexual crime, and the Daily Mail (I think) has released an extract. In it he says “rape isn’t always rape”. That quote sounds horrific, but in context it means exactly what I am arguing here: some victims excuse things that definitely are rape, because it seems less serious than other things they’ve heard of that are also rape. Nick Ross is arguing that the sample you would receive if you only looked at reported rapes is actually much narrower than the rape that actually happens. And it is “rape is rape” that is stopping some victims coming forward. If there was a recognised gradation, people who were raped by their partners or by a man they led on or while they were drunk would come forward. And that is what we want. We want them to come forward. We want to stop this level of the crime. We want the victims to not excuse their attacker by blaming themselves.

There is a level of victim-blaming by Nick Ross (I’ve lost track now of whether the article is a standalone article or if it’s an extract from his book, but it is here). And I find victim blaming in rape cases disgusting. But victim blaming, by the way, is normal. I had my bike stolen once when it wasn’t locked up. Imagine how we would react to a man who was “mugged” after we discovered that he was carrying his money in his hand at arm’s length. How does an insurance company react to a claim of burglary when the front door to the house wasn’t locked? I should be allowed to leave my bike unlocked. I should be able to leave my phone and wallet unattended on a table. But I can’t, and if I did I would be told that I was inviting the crime that followed.

I would still be a victim of crime, and there would still be a perpetrator of crime, but I would be seen as having invited it. I never really invited it; I never told a person they could take my stuff. It was a passive and careless invite made only to the badly behaved section of society, not an intentional one. And the bike theft of taking of my wallet is still a crime. But people will see me as partly to blame. Recognising “aggravated assault” (as opposed to just assault) is a legally recognised type of victim blaming.

I think I have figured out an explanation of why victim blaming is inappropriate. Victim blaming is seen as a way of taking some of the moral blame away from the perpetrator and placing it on the victim; partially excusing the attacker. But that isn’t, or at least shouldn’t be the case. A person can behave in a way that statistically exaggerates their vulnerability to a crime. But that is statistical behaviour, and not moral behaviour. How drunk a person gets and what they wear (the oft-cited instigators of rape) cannot be considered a moral action, and therefore no moral blame can be placed on them. All of the moral culpability, blame and deserved scorn rest entirely with the attacker. The attacker made all the moral (and reprehensible) actions. The victim is morally blame free.

“Don’t tell me how not to get raped; tell them not to rape”.

This post ended up being longer than I intended, but here are my key points again:

• Consent is not a simple yes/no issue.
• Because consent is not simple, neither is the concept of rape.
• Failure to recognise complexity in rape means some victims don’t see what happened to them as rape, even when it is. As such, it is not reported, but as a caring population we should want it reported.
• To get most rapes appropriately reported, the definition of both consent and rape should be gradated. “Rape is rape” is a barrier to people coming forward.
• This is probably what Nick Ross meant, the media is intentionally misrepresenting him.
• Nick Ross did make comments that come down to victim blaming, and statistically he is right. But morally he is wrong.