Responsibility

There's been a lot of talk in response to both the poll on attitudes to rape, and now the advice of the judge that led to the collapse of a rape case. Mary McFarlane's letter in the Guardian today follows up on an article about unplanned and unprotected sex, and makes the point that matters or "aspects of behaviour - a woman's drinking, her outfit, her manner, how many partners she has had, whether she knows the man in question...should be irrelevant".She goes on to say:

If there is any hope of a reduction in rape, we need to make a firm distinction between sex to which both partners have consented, no matter how ill-advised that consent may seem to us, and sex where one partner has not consented. This distinction is common to all types of rape, and it is imperative that is sharply and clearly maintained.

What's my take on this? Well, clearly attitudes of blame are pretty Neanderthal in tone (and unsurprisingly women are just as, if not more, critical than men on these matters). But what really irks me is the action of the Swansea judge in effectively taking over the role of the jury in deciding the response for them (this ain't Judge John Deed). He focuses on the decision of the girl to drink as a priori excusing evidence that consent cannot be confirmed.

Whether or not the girl could accurately recall giving consent should not allow the judge to take the decision-making process out of the hands of juries. That's why we have jury trial. We may not like what they decide, but it is up to them to evaluate the evidence. The jury could have decided that it was just not clear enough whether consent was given, but could have considered whether it was reasonable to assume that it had been on the part of the alleged rapist. The judge's comments go beyond advice on HOW to evaluate the evidence and come to a decision and effectively makes that decision on their behalf.

Responsibility is clearly a complex issue, and one full of ambiguities in personal relationships. Yes, I would accept we have to take some responsibility for how we behave, the decisions that we take and the actions that result. HOWEVER, and that's a really big capital letters HOWEVER, responsibility cuts two ways. Given that no one could pretend to be ignorant of how alcohol - for example - affects the decision-making process, the ability to give INFORMED consent, surely there is just as much duty of care and responsibility on the other person to assess whether someone can reasonably give consent? It's like checking "beyond reasonable doubt". And power relationships can also affect how reasonable it is to assume that the consent is both reasonably given and that the person is in a position to understand the implications of their consent. It's also (I think this came from Shuggy) that you have to be aware that you have a responsibility to behave appropriately REGARDLESS of the behaviour and actions of the other person: eg you are a teacher, they are a pupil. I've no wish to infantilise over 18s, but there are issues of power and vulnerability where alcohol may be the masking excuse for taking advantage.

Can of worms for the day now open: aren't you glad I came back after my day of enforced absence from the blog world...?!