An ex cop
An ex druggie
An ex drug dealer
An ex alcoholic
An ex prolific burgler
An ex car their.
An ex fraudster
An ex and the list could go on but one thing you can never be is
An ex sex offender

Says who?

No one needs to allow other people's prejudices define their identity.

My personal view is that the concept of sexual offences is invalid as a part of a criminal law system, so I don't acknowledge that anyone is or has been a so-called sex offender.

Randall, would you expand on this, please?My personal view is that the concept of sexual offences is invalid as a part of a criminal law system,...

I believe that the criminal law should be a system to disincentivise the causing of harm or loss to others. If I attack you and break your thumb, I've caused that much harm. If I steal two pigs and $50 from you, I've caused that much loss. Historically, most European legal systems concentrated on making reparation for the harm or loss. The advantage is that the dispute can be objectively assessed and then objectively fixed.


The other competing concept of a criminal code is that it should reflect or define the moral standard of the jurisdiction. Of course, taking a harm/loss approach is also a moral position because it assumes the badness of causing harm or loss. However, moral standard criminal codes add a layer of wrongness on top of harm and loss. It follows that they concentrate on punishing wrongness, rather than correcting harm or loss. This approach allows the criminalisation of things for being wrong in the abstract, even when they don't cause harm or loss in the physical world. Examples would be prohibiting the possession of illegal cartoon pornography, or blasphemy.


What about causing offence or psychological harm, you ask. Firstly, harm to the psyche is a contradiction in terms because it's not corporeal. Secondly, it can't be objectively assessed in terms of magnitude of effect. Thirdly, it's not possible to establish reliably a causal relationship between an event and subsequent psychological phenomena: some people are invigorated by stressful experiences whereas some develop PTSD and yet others acknowledge the bad event but just move on. So introducing the very variable and unsettled idea of psychological harm as a factor in criminal justice seems out of place with the level of certainty and confidence a legal system requires. Regarding offence, again it's not possible to assess objectively. In a diverse society, there will be many different ideas of what is offensive. If we start banning things that someone takes a dislike to, we'll quickly end up with not much liberty. That leads me to my main objection to the moral standard concept of law: it fails to respect the autonomy of the individual. In a society with a variety of views in it, a single moral code cannot possibly represent the standard for all, hence the squabbles between Christian bakers and gay couples wanting a wedding cake. In fact, rather undemocratically, it imposes, rather than reflects, a moral standard on society. It dictates to individuals what they should find good or bad, without a coherent and consistent rationale.


Back to harm and loss. Consider any so-called sexual offence. None in itself causes tangible harm or loss. Bum pinching, breast groping, looking at illegal pictures... Even rape, if no injury is inflicted. The rationale for banning them then, is either a) it's offensive ie bad or yukky or immoral or degenerate or some other pejorative adjective or b) it causes psychological harm ie it hurts someone's feelings. Offending people or hurting their feelings can't be introduced as factors in an objective system of harm/loss disincentivisation because of the reasons in the paragraph above. Of course, using violence to override someone's consent to sex does cause harm in the form of injury. But applying violence and injuring someone is already prohibited elsewhere in the criminal law, so there's no need for a special extra crime of rape.


In summary, if something doesn't cause tangible harm or loss, I oppose its prohibition. That's because it's consistent with the ideological position I think most conducive to human flourishing (classical liberal, libertarian, J S Mill etc) AND because it's the most rational and coherent way to formulate a criminal justice code (as Jeremy Bentham would tell you).

We might as well go round shouting "go home n*gger" at people then, seen as no actual harm is done.

honey!oh sugar sugar. wrote:
We might as well go round shouting "go home n*gger" at people then, seen as no actual harm is done.

Yes. "Go home nigger" isn't an evil spell that will burn the ears of whoever hears it. Supporting free speech mean that you'll hear stuff you don't like occasionally. In my opinion, the best way to counter what you don't like is to overcome it with better, more persuasive speech. Free speech is also self-regulating. Say something stupid and you look stupid. Say something nasty and you look nasty. Say something clever and you look clever. It carries its own punishments and rewards.

Others disagree and seek to ban and punish things they don't like that do no harm. They try to compel people forcibly to conform to their idea of what is good, instead of the liberal approach to persuade people through rational debate.

Randall is such a great deep thinker. I just wish we had a platform for change, but it seems that feminists have had absolute dominance for 40 years and that's not going to change. It's like the world is gridlocked into some insane illiberal "liberal" ideology. Anyone who tries to change it just gets shutdown. They end up wasting a lot of their time to no avail (like me) or end up poor with no job (like Nathan Larson).

In any case honey, people currently do say "go and die paedophile" so I'm not sure the relevance of your point. If you made it legal to say "go home nigger" today then I doubt it would be very prevalent because the culture changed. And anyway it's only a problem when it's everyone doing it, not when it's one idiot. And AFAIK I think it is legal to say that in the USA?

holocaust21 wrote:
Randall is such a great deep thinker. I just wish we had a platform for change, but it seems that feminists have had absolute dominance for 40 years and that's not going to change. It's like the world is gridlocked into some insane illiberal "liberal" ideology. Anyone who tries to change it just gets shutdown. They end up wasting a lot of their time to no avail (like me) or end up poor with no job (like Nathan Larson).

In any case honey, people currently do say "go and die paedophile" so I'm not sure the relevance of your point. If you made it legal to say "go home nigger" today then I doubt it would be very prevalent because the culture changed. And anyway it's only a problem when it's everyone doing it, not when it's one idiot. And AFAIK I think it is legal to say that in the USA?

I think this coming era is far more dangerous.

There are so many exposures of false allegations.. the JK collapsed prosecution is a prime example of a shocking conspiracy to pervert justice..but of course so many others from Cliff Richard, Gambiccini, Ted Heath and so on.

But the False Accusation Industry is now Fighting Back and I believe will become vicious and relentless.

Look at MWT..exposed as a charlatan but determined to retain his status and if that means more innocent suffer..

Thank you, Randall, that's an interesting argument, and one for which I have some sympathy, at least in regard to many of the 'crimes' you mention. But you then say,Even rape, if no injury is inflictedSurely my autonomy requires some say over the uses to which my own body is put?

Am I correct in understanding that you would consider the following to be essentially equal?
1) I pin you down, perhaps causing some bruising.
2) I pin you down, perhaps causing some bruising, and rape you, causing no further injury.

It would make some sense to me if, in the second senario, the rape is considered 'just another piece of violence', i.e. equivalent to some additional violence, and not part of a separate category of offence. But I find it extremely difficult to think that it in no way adds to seriousness of the assault.

Misa wrote:

Am I correct in understanding that you would consider the following to be essentially equal?
1) I pin you down, perhaps causing some bruising.
2) I pin you down, perhaps causing some bruising, and rape you, causing no further injury.

Yes, there's no difference in a legal system that uses as its rationale for prohibitions the causing of tangible harm or loss. It's like punching you in the face vs punching in the face and calling you a nasty name. The punch injures neither more nor less. I set myself a thought experiment about being molested while in a coma. No injury caused and I was oblivious to the molestation. Years later, I discover CCTV footage of the incident. Would I consider myself to have suffered any tangible harm or loss? The answer of course is no, so the groper's actions cannot be penalised in the type of criminal law system I favour. Such behaviour seems better left to professional discipline, which could apply different standards of ethics based on medical principles.

There are of course, other rationales one could adopt for a criminal code. You don't have to lean towards the Utilitarian, as I do. One other option is to set a standard of virtue, and penalise deviations from it. An example can be seen in another thread here, about Brunei whipping adulterers and so on. Any system will struggle to accommodate all extremes of circumstance, as in the coma grope scenario above. So we have a choice. Do we stick to the fundamental rationale, gaining coherence and consistency but struggling to cope with unusual scenarios? Or do we adopt different rationales to justify prohibiting a variety of conduct that wouldn't fit under any one rationale, creating a mutually inconsistent and contradictory hodgepodge of law, but presenting a veneer of legitimacy to cursory scrutiny?


I think the rationales we do adopt have to be carefully thought through. A couple of yours weren't.



Surely my autonomy requires some say over the uses to which my own body is put?

You suggest that restricting your autonomy, as you understand it, is a justification for criminal prohibition and punishment. How do we arrive at a common understanding of what everyone's autonomy is? Is that even possible, because it's somewhat of a contradiction? How do we limit the bounds of each person's autonomy (if not, we would just barge into each other on the street wouldn't we? And then this would be a crime...?) Is the illegality of someone's deeds dependent on how they interact with your expression of your idea of autonomy? How is anyone else to know what you think your autonomy is, or how you intend to exercise it? And therefore, how would anyone know what is illegal or not?



It would make some sense to me if, in the second senario, the rape is considered 'just another piece of violence', i.e. equivalent to some additional violence, and not part of a separate category of offence. But I find it extremely difficult to think that it in no way adds to seriousness of the assault.

Now you suggest seriousness as a criterion for criminal prohibition. And we run into the same problem of arriving at a definition of what that means, holding the definition in common and how anyone can know how "seriously" their actions will be received. The first half of the quote seems to hint at having current so-called sexual offences as aggravating factors in crimes that cause actual harm. Although at first glance it seems to be an attractive compromise, my caution, as with all aggravating factors affecting sentencing, is that they punish something that isn't actually against the law. It's pretty hard to see much of a difference between a sober punch-up and a drunken punch-up in terms of injuries. Why then, should drunken punch-ups be punished more harshly when being drunk, in itself, causes no harm to others? And so too with assault vs rape-assault as in your question above.

Randall, thank you for your detailed answer. Your thought experiment makes perfect sense to me, and I'm in complete agreement with your conclusion. However, my enquiry was specifically about your comment on rape – a crime, which I consider quite different from molestation by a groper. I appreciate that some would lump these acts together, or see them as being on a 'spectrum' of behaviour – indeed that seems to be the effect of using the category of 'sexual offences' – but I think this is unhelpful.

According to my (limited) understanding, rape is a crime with a long history in English law. Perhaps, it was always a crime that caused particular difficulty for our courts, and perhaps the precise definition has changed significantly, but it has long been a crime, has it not?

If, in the past, a husband, or father, considered his wife, or unmarried daughter, to be his property, then it would appear that her removal from him would have created an obvious loss. If, the family was the basic unit upon which society was built, then it seems reasonable that 'rape' (in this archaic sense) ought to have been a crime. This would seem to be entirely in keeping with the kind of legal system you describe (which is, of course, not to insinuate that you believe a woman should be a man's property).

From here, it seems to me only a small (but, perhaps, quite significant) step for society to acknowledge that a man similarly suffers a loss where his wife, or unmarried daughter, is forced by another to have sexual intercourse against her will. (Though I suppose 'her will', here, might be a bone of contention.) What is the nature of the harm or loss suffered by the man? Perhaps, in the unmarried daughter's case, her potential value as a bride is lost. In the case of a wife, perhaps it is less clear, but the prospect of an unwanted pregnancy – the chance of raising someone else's child – at the least may cause an interruption in the normal process of baby making.

Now, if we consider that a woman is a legal being in her own right, it would seem again reasonable (but perhaps this is where I'm going wrong) to consider that she herself suffers harm or loss in much the same sense. If her value as a bride or ability to reproduce with the partner of her choice is adversely affected, then she herself suffers.

This is still quite a long way short of the modern definition of 'rape'; indeed it's quite a long way short of the modern definition of 'woman', but does it not suggest that a crime of rape may well be acknowledged "in a legal system that uses as its rationale for prohibitions the causing of tangible harm or loss"?

I did not suggest that 'seriousness is a criterion for criminal prohibition'. I am, however, suggesting that rape is different from groping, unwanted kissing, wolf-whistling, or whatever else falls under the unhelpful category of sexual offences. And I'm suggesting that it is quite reasonable for rape itself to be a crime, above and beyond any incidental injuries caused in its commission.

Misa wrote:
Randall, thank you for your detailed answer. Your thought experiment makes perfect sense to me, and I'm in complete agreement with your conclusion. However, my enquiry was specifically about your comment on rape – a crime, which I consider quite different from molestation by a groper. I appreciate that some would lump these acts together, or see them as being on a 'spectrum' of behaviour – indeed that seems to be the effect of using the category of 'sexual offences' – but I think this is unhelpful.

According to my (limited) understanding, rape is a crime with a long history in English law. Perhaps, it was always a crime that caused particular difficulty for our courts, and perhaps the precise definition has changed significantly, but it has long been a crime, has it not?

If, in the past, a husband, or father, considered his wife, or unmarried daughter, to be his property, then it would appear that her removal from him would have created an obvious loss. If, the family was the basic unit upon which society was built, then it seems reasonable that 'rape' (in this archaic sense) ought to have been a crime. This would seem to be entirely in keeping with the kind of legal system you describe (which is, of course, not to insinuate that you believe a woman should be a man's property).

From here, it seems to me only a small (but, perhaps, quite significant) step for society to acknowledge that a man similarly suffers a loss where his wife, or unmarried daughter, is forced by another to have sexual intercourse against her will. (Though I suppose 'her will', here, might be a bone of contention.) What is the nature of the harm or loss suffered by the man? Perhaps, in the unmarried daughter's case, her potential value as a bride is lost. In the case of a wife, perhaps it is less clear, but the prospect of an unwanted pregnancy – the chance of raising someone else's child – at the least may cause an interruption in the normal process of baby making.

Now, if we consider that a woman is a legal being in her own right, it would seem again reasonable (but perhaps this is where I'm going wrong) to consider that she herself suffers harm or loss in much the same sense. If her value as a bride or ability to reproduce with the partner of her choice is adversely affected, then she herself suffers.

This is still quite a long way short of the modern definition of 'rape'; indeed it's quite a long way short of the modern definition of 'woman', but does it not suggest that a crime of rape may well be acknowledged "in a legal system that uses as its rationale for prohibitions the causing of tangible harm or loss"?

I did not suggest that 'seriousness is a criterion for criminal prohibition'. I am, however, suggesting that rape is different from groping, unwanted kissing, wolf-whistling, or whatever else falls under the unhelpful category of sexual offences. And I'm suggesting that it is quite reasonable for rape itself to be a crime, above and beyond any incidental injuries caused in its commission.

Goodness Misa don't spend so long being reasonable to rape defenders...it is as obnoxious as it seems on first glance...

Misa wrote:
...it is quite reasonable for rape itself to be a crime...

What are your reasons, then?

A simple summary, if I may, of the reasons you've given so far are:

1) damage to social value as a spouse
2) loss of time while gestating

The first would only hold true in a society that values virgin brides. It's also not an argument for prohibiting the rape of someone who's already married. Rape victims have lifelong anonymity, so no future husband would ever need know.

In the second, the prohibition depends on a negative assessment of the consequences of getting pregnant by rape. Consequences are hard to foresee and weigh up. Raising a child may positively outweigh the rape incident itself. The child might go on to be a Nobel prize winning discoverer of a cure for cancer - or the next Stalin. In addition, the argument loses weight when we consider the availability of effective post-sex contraception. It also doesn't justify prohibiting rape with a condom, the rape of anyone who is infertile or rape by anyone who is infertile, or male rape.

It seems to me that arguing for the prohibition of rape based on the consequences of the act is weak. That's because the consequences of rape can very well be the consequences of consensual sex too. Or, negative consequences don't occur at all, as in rape of a drunken person who can't remember it at all, suffers no injury and doesn't get pregnant by it.

It follows that the rationale for prohibiting rape must be located in the act itself. But like all deontological imperatives, it must be very carefully derived otherwise it's just another demand for a "right" that doesn't necessarily arise from a sound basis. Would you like to have first go?



Wyot wrote:
Goodness Misa don't spend so long being reasonable to rape defenders...it is as obnoxious as it seems on first glance...

Take some time to read my posts slowly and you'll see that I'm challenging the assumption that rape should be a crime, not arguing for the merit of the act. There are many things that I think are bad, including rape, but I don't think they should be crimes. Racism, recreational drug use, communism... the list goes on and on. But I think that if we're going to ban something, especially with a lifelong prison sentence attached to it, we should be able to state very good reasons for it. I find it equally obnoxious that you wouldn't think that.

Randall there are many various obvious reasons why rape is a crime already...

To compare it to holding a political ideology or choosing to take a drug is a fatuous non-sequiter.

While I may not agree with all views expressed here about "false allegations" I find them interesting and clearly with merit.

I'm glad to see that your views defending rape - and taking it out of criminal justice is offering it legitimacy - do not seem to have much traction here...

wyot wrote:
Randall there are many various obvious reasons why rape is a crime already...



Yet you didn't list any...

Randall wrote:
wyot wrote:
Randall there are many various obvious reasons why rape is a crime already...



Yet you didn't list any...

Why bother? They are so obvious that if you don't know what some of them are then I fear your lack of empathetic ability will prove prohibitive towards your education in this area....

Randall wrote:
wyot wrote:
Randall there are many various obvious reasons why rape is a crime already...



Yet you didn't list any...

It goes without saying, Randall.

This thread is following a familiar trajectory.

Someone posts something thought-provoking. I open up an examination of the assumptions in the original idea. The usual suspects join in to reassert conventionally held beliefs, by just insisting that that's how it is (ipse dixit). At least Misa had a go, but when I dismantled his/her reasoning, people get upset at being on the losing end of better argument. Cue resorting to ad hominem (rape defender, pedo apologist, ignorant and lacking empathy etc).

Let's remember M's original point that some people are stigmatised forever for a conviction for one type of crime, whereas others aren't. You folks are apparently willing to go along with that, for reasons (however obvious or sound) that you won't or can't articulate.

wyot, thanks for your concern. I'd like to say I know what I'm doing, but that wouldn't be entirely true.

Randall, your summaries of my position are not especially generous; perhaps you should take a little more care in reading what I've written, or in writing what you do.

That 'rape' should have been a crime in a society which valued marriage and the family, and for which reproduction was of great importance, seems entirely reasonable. Clearly, this crime was recognised by the law long before up-skirting, bottom slapping, and viewing cartoon pornography came under the broad category of sexual offences (if, indeed, they do). And clearly rape is different from most of the acts in this category because of the consequences.

As a society comes to treat women as equal to men, comes to accept other kinds of sexual relationship, and comes to view marriage and reproduction as less of a priority than it did, then I suppose it is understandable that there may be some change in the law. I'm not at all sure that I agree with some of the directions in which the law has moved, and there may well be an interesting discussion to be had there. The manner in which our courts deal with rape, and the difficulty of presenting evidence, also raises a number of questions.

But it seems to me that the historical context matters. Rape has long been treated as quite a serious crime, and it seems reasonably clear why this should have been so. Times change, and the law perhaps changes slowly. But the basis of our crime of rape is not some newly fashioned product of modern sensibilities.

Your argument for doing away with the crime of rape seems to be that it is an act without consequence, yet you appear to accept now that there are consequences (though the seriousness of those consequences may be debatable). I wonder whether an analogy may be helpful…

If I imprison you, I may treat you really badly, beat and starve you, and leave you to sleep in unsanitary conditions, causing you injury and illness. Your period of imprisonment may cause you to lose your business, and even cause a breakdown in your family relationships. Presumably, we could assess this and the law could ensure that you are appropriately compensated. Of course, the law would probably seek also to punish me for the crime of imprisoning you. Now I may cause you no physical injury in the process of imprisoning you; I may feed and clothe you to a standard well above that to which you are accustomed; you may be a down and out and my imprisonment of you might spare you from danger and disease; and, of course, if you were a down and out, I could hardly cause damage to your business or family relationships. I'm not sure how we may assess the extent to which you ought to be compensated under such circumstances. Yet I would still have unlawfully imprisoned you and, presumably, the basic crime would be the same.

It seems reasonable to me that the law (in my limited understanding) treats imprisonment as a crime. You may choose to lock yourself in a room or building (indeed you probably do this every night), but that is not the same as my locking you in such a place.

I think you should, by and large, be free to go wherever you want, whenever you want, and associate with whomever you want. My preventing that, without lawful reason, would seem to be wholly unacceptable, irrespective of any physical injury or loss you may incur. Why should that be so? Should this ‘right’ really exist? Is it sensible that our society places such value on individual liberty? I think it is. I also think it sensible that society places some value on a woman’s right to chose when, where, and with whom she has sexual intercourse, and takes action against those who violate this.

Randall wrote:
This thread is following a familiar trajectory.

Someone posts something thought-provoking. I open up an examination of the assumptions in the original idea. The usual suspects join in to reassert conventionally held beliefs, by just insisting that that's how it is (ipse dixit). At least Misa had a go, but when I dismantled his/her reasoning, people get upset at being on the losing end of better argument. Cue resorting to ad hominem (rape defender, pedo apologist, ignorant and lacking empathy etc).

Let's remember M's original point that some people are stigmatised forever for a conviction for one type of crime, whereas others aren't. You folks are apparently willing to go along with that, for reasons (however obvious or sound) that you won't or can't articulate.

Randall I don't believe in stigmatising anyone that is a different question. The act of rape I find abhorent but I believe all human beings capable of change, and that an individual is not defined by even the worst things they may have done...