Now we're getting somewhere. Well done, Misa.

It seems were agreed that prohibiting rape because of its consequences is unsound. That's because the consequences we can list don't cover all rape scenarios we want to prohibit. And also because some consequences don't necessarily arise from the act of rape, such as pregnancy, injury, disease etc. If anyone disagrees, speak up.

Instead, you propose to locate the wrongness in the act itself.

Misa wrote:

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.

Why?

You're talking about some kind of right to bodily integrity that arises necessarily from our human condition. How do you answer your own questions about why the right exists and whether it should?

And another pair of questions from me: why should we punish the violation of a concept/idea/right if no tangible harm is done by it? How would we assess the magnitude of the violation?

Randall wrote:
Now we're getting somewhere. Well done, Misa.

It seems were agreed that prohibiting rape because of its consequences is unsound. That's because the consequences we can list don't cover all rape scenarios we want to prohibit. And also because some consequences don't necessarily arise from the act of rape, such as pregnancy, injury, disease etc. If anyone disagrees, speak up.

Instead, you propose to locate the wrongness in the act itself.

Misa wrote:

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.

Why?

You're talking about some kind of right to bodily integrity that arises necessarily from our human condition. How do you answer your own questions about why the right exists and whether it should?

And another pair of questions from me: why should we punish the violation of a concept/idea/right if no tangible harm is done by it? How would we assess the magnitude of the violation?

We dont need to assess the magnitude of the violation.
It IS a violation. That is enough.

Is it seriously being claimed here that rape isn't a serious crime? If it wasn't, it wouldn't be used as a weapon of war.

Is it seriously being claimed here that rape isn't a serious crime? If it wasn't, it wouldn't be used as a weapon of war.

I've only really heard that claim in feminist rags though (e.g. Guardian), so I'm not sure it's accurate. Probably more likely it's just used as a reward, a general will say to his soldiers "if you do a good job, and kill our enemies then you can rape their women!".

So it's less of a weapon and more of a carrot.

Randall, we may be getting somewhere but, wherever that is, I can’t help but feel I’m doing most of the legwork.

At times it seems that your objection is to criminal law as a whole, rather than to the category of sexual offences, or to the specific crime of rape. My analogy with false imprisonment takes us halfway, or thereabouts, to the ultimate crime – murder. I wonder whether we might build from there.

If you, with malice aforethought, take my life, it seems pretty obvious that you are doing harm. But who is harmed? If I’m dead, I can no longer suffer (indeed, you might administer a lethal injection whilst I sleep, such that I never experience any pain or awareness of your act). Nor can I enjoy any reparations offered. My family may suffer, and so may be compensated for their loss…though, of course, I’m irreplaceable. But, then, I may be a useless layabout, who spends far too much time arguing with people who are wrong on the internet. I may be a burden on my family, and they may genuinely wish they could get rid of me. If we take, again, the example of a down and out, and we assume here that he has no family, no-one who cares for – or depends upon – him, then do we have a situation in which there is no real harm or loss?

Perhaps you could help me out here. Do you believe it should be a crime deliberately to take the life of another person, irrespective of their status? And, if so, on what basis?

If we can find common ground here then, perhaps, we can at least begin to understand each other’s views on other crimes.

Misa wrote:

At times it seems that your objection is to criminal law as a whole, rather than to the category of sexual offences, or to the specific crime of rape.


I do indeed have a general objection to the state of English criminal law. Like Bentham, I think it's an incoherent muddle of harm/loss reasoning, old customs of questionable relevance shoehorned into today's context, and principles - however worthy - that have been adopted along the way sometimes clashing with other bits of law. I'd like there to be ONE consistent criterion across the entire criminal code for determining what we prohibit. If something doesn't satisfy the criterion, we are free to do it, if we're to claim our society is a free one. I acknowledge it's difficult to formulate a criterion that covers everything we want to prohibit because we don't like it.

The simple answer to your lethal injection given to a sleeping man idea, is that it causes not harm but loss. The loss is his future earnings, opportunities and potential flourishing in the rest of his life. It's akin to your previous scenario of a falsely imprisoned man who is well-treated. The loss in both cases is time.

My suggested criterion for a criminal code was causing tangible harm or loss. This has a number of implications people might find odd. Attempted versions of crime are all out. Watching snuff movies or child pornography can no longer be illegal (assuming the viewer didn't commission them to be made). Imposing speed limits and certain other road rules becomes difficult.

Likewise, there are rape scenarios that are currently illegal that would NOT fall under my criterion. I'll give you three examples.

1) Jane agrees to have sex with Freddy using a condom. Unbeknown to Jane, Freddy slips it in bareback. Freddy has no STDs and Jane is on the contraceptive pill. Jane finds out and claims that an act occurred to which she did not give consent.
2) Rod, Jane and Freddy come back home after a night out. Rod, who is Jane's boyfriend, falls asleep on the sofa. Freddy is convinced that Jane has been flirting with him all evening and creeps into her room. He begins to have sex with her. Jane, thinking it's Rod, enthusiastically reciprocates. In the morning, she wakes up next to Freddy and realises it was him. She objects because she didn't knowingly consent to sex specifically with Freddy.
3) Rod and Jane hook up at a bar and go home and have drunken sex. At the time, both are enthusiastic participants. Next morning, Jane has very little memory of what happened and decides she must have been too drunk to consent to sex.

I'd like to see scenarios like these removed from the definition of rape. A very heavy penalty is attached to frivolous misadventures where no tangible harm is done. If we get rid of these, we're left with rapes where violent coercion or surreptitious drugging is used. Violent coercion and drugging is already prohibited elsewhere in the law. This makes a separate crime of rape superfluous.

I can quite understand if you want a criminal code that reflects an idea of preserving one's physical integrity - or something along those lines. But then you have to justify punishing people for not complying with an idea. There's also difficulties deciding on degree of the violation. Is it by depth of penetration? Duration? And if the mere violation of the principle is what makes it punishable, is there simply the same penalty for all convictions?

Randall wrote:
Like Bentham, I think it's an incoherent muddle of harm/loss reasoning, old customs of questionable relevance shoehorned into today's context, and principles - however worthy - that have been adopted along the way sometimes clashing with other bits of law. I'd like there to be ONE consistent criterion across the entire criminal code for determining what we prohibit.
I can understand the desire for consistency and parsimony, but I suspect that the apparent muddle is, in some ways a strength, rather than a weakness. If our laws were formed through custom and practice, introduced only when necessary, and tested through repeated application, then it seems to me that they might be both human and humane. That process may well give rise to quirks and anomalies, but it is the desire to ‘legislate for everything’ which I think we should most fear. Would it be fair of me to say that you, too, object to this desire or tendency?

My impression is that, from the late 20th century, in particular, the introduction of new legislation gathered pace, the passing of laws became a full-time job for parliament, and attempts to plug gaps or iron out inconsistencies perhaps led us toward outlawing everything of which we disapprove.

Focussing on harm or loss might work for a system of torts, but the criminal law, I think, requires something more. My example of the murder, by lethal injection, of a sleeping down and out, you address only in respect of *his* loss. Yet, if he has lost anything (you suggest ‘time’, others might call this ‘life’), he is no longer present to experience the loss. For this to be a crime based only on ‘loss’, then surely someone (or something) must have incurred the loss. Is this one of God’s children being taken from him? Is this one of Her Majesty’s subjects taken from her? Does society, or the state, lose something? If what is lost is ‘time’, then I can only assume that you view this man’s life only in terms of productive capacity – the potential to do work for the state. This also raises the question of whether it is a bigger crime to kill a younger person (taking more ‘time’) and, of course, whether it is worse to take the life of a talented figure than it is to take the life of a hopeless down and out.

I do not want to see a ‘heavy penalty attached to frivolous misadventures’ and, by and large, I’m sympathetic to your three examples. But it seems to me that your logical exclusion of the crime of rape, and your concern about things like ‘degree of violation’, likely stem from your desire for ‘ONE consistent criterion’ and, perhaps, if that criterion is to be loss, the failure to identify by whom (or what) the loss is incurred.

I would think those who were horrified by your suggestion that rape, itself, should not be a crime now, perhaps, better understand your thinking. I certainly appreciate your explanation. I would think, if you want to take the discussion further, we need a reasonably clear idea of who it is that incurs a loss when a ‘crime’ is committed.

Yes it seems to me a similar discussion that I keep having with Vegans and Vegetarians - those who say the diet is better for you, I reply that individual diets are essential - some things are better and worse for some individuals so a diet that says NUTS are a crucial element is dangerous to those with an allergic reaction; ditto lactic intolerance etc. When they quote moral reasons I say - how dare you rate a carrot's life as less valuable than a chicken's? But I never get anywhere because programming and a desire for simple points of moral (and legal) reference are vital to many who simply cannot cope with complexity. Thus "rape is wrong". Or "murder is bad". Yet things like shooting someone who is about to kill your child or defining a word like "rape" are far too complex for most, increasingly, simple minds.