“Let me tell you, I think that Julian Assange’s personal sexual behaviour is something sordid, disgusting, and I condemn it. But even taken at its worst, the allegations made against him by the two women…were true…they don’t constitute rape. At least not rape as anyone with any sense can possibly recognise it…Let’s take woman A. Woman A met Julian Assange, invited him back to her flat, gave him dinner, went to bed with him, had consensual sex with him. Claims that she woke up to him having sex with her again. This is something which can happen, you know. I mean not everybody needs to be asked prior to each insertion. Some people believe that when you to 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 tapper 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…’ (see here for video)
These are the words that will be associated with George Galloway MP for the rest of his life.
Prior to a few weeks ago, Mr. Galloway resembled something of a political ironman – having weathered, at various points, controversy, embarrassment and scandal, he won an unexpected landslide result at the Bradford West by-election of March 2012.In fact, in Bradford West, he annihilated the incumbent Labour Party, registering a massive 36% swing.
Today, he is a political nomad. The leader of his party (Respect), Salma Yaqoob, rebuked him in a visible and public manner, the magazine Holyrood terminated its relationship with him, while a raft of journalists and a mob of correspondents on Twitter have denounced him as a misogynistic – and ignorant – dinosaur. The Respect Party candidate for the Manchester Central by-election has even stood down, in protest. In these circumstances, it is difficult to envisage the party retaining Bradford West in 2015.
The whole affair astounds me. Mr. Galloway is an elected Member of Parliament, who discussed an area of legislation that governs the United Kingdom. He was – essentially – exercising his democratic right to speak freely, about a topic that he clearly feels passionate about. Indeed, we should be glad not only that he is eager to broadcast his views on a public forum, but that legislative issues of this nature arouse a sense of enthusiasm within him – the political landscape is more attractive when it contains individuals who hold, and disseminate, their convictions.
The problem for Mr. Galloway was that his dialogue concerned the topic of rape. Rape now occupies a curious, and distinct, position in our public psyche, whereby all but the mainstream dogma is furiously chastised. In fact, I doubt whether it would be possible to have a rigorous or indiscriminate public debate on what constitutes rape, in the current climate. One must conform to the accepted tenets or – like Galloway – face denunciation.
That this state of affairs exists is entirely understandable. I suspect that it is due to the fact that rape victimisation is an exclusively feminist province – whether or not it is true, the overwhelming public perception is that women are far more likely to be the victim of rape than men. Furthermore, the act of rape is associated with other intimidating concepts such as violation and helplessness. As such, women display an emotional attachment to the issue that men will struggle to understand. And, in this way, a gender imbalance will always stifle free and open debate on the issue.
This is a real shame – in the Mill-ian sense, our public discourse is weakened by the existence of taboo subjects that remain impervious to argument. Not only does debate expose incorrect and pernicious ideas (such as, arguably, Galloway’s), but it allow us to reinforce, and re-affirm, the principles and ideas that we possess and cherish. One might comfortably assume that the blueprint of human progress lies in our history of engagement in the rigorous, hegelian, trade of ideas.
In this instance, for reasons set out below, Mr. Galloway’s opinion was inconsistent with the law on rape. However, his views were no more legally incoherent than those who sought to denounce him. Much has been written on the issue of consent – as referenced above, Ms. Yaqoob stated that “rape occurs when a woman has not consented to sex”; a spokesman for Rape Crisis said that “Sex without consent is rape”; while Louise Mensch wrote that “rape is when a woman does not consent”.
These definitions are inaccurate. Pursuant to Section 1 the Sexual Offences Act 2003,
“(1) A person (A) commits an offence [of rape] if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.”
In this way, the definitions reproduced above comfortably delineate the actus reus of the offence (the penile penetration by the defendant of the vagina, anus or mouth of another person, who at the time does not consent to the penetration) but fail to take into account the mens rea of the offence (an absence of reasonable belief in consent).
This is more than a legalistic technicality – the offence of rape is not one of strict liability. The offender must satisfy both the actus reus and mens rea, of the offence, which means that consideration has to be given to the defendant’s mind. And, to his credit, Mr. Galloway’s analysis did focus on the defendant’s (in this case, Mr. Assange’s) mind. Whether intentionally or not, the entire thrust of his commentary dealt with the topic of mens rea.
Of course, as stated above, his appraisal on mens rea was, in fact, unconvincing. Per Section 1(2) SOA 2003, “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents”. Without mentioning the case involving Mr. Assange (the case has, of course, not been to trial and the evidence is not in the public domain), it would be difficult to argue that Mr. Galloway’s contention that an unconscious sexual partner need not be asked prior to each “insertion” can be reconciled with this provision of the 2003 Act.
We have also been told by various commentators in recent weeks that “rape is rape is rape”– in essence, that there is an absolutism to rape. Last year, when the (now former) Lord Chancellor Ken Clarke challenged this mantra, and distinguished between “serious” rape and, on that occasion, “date rape”, he was roundly castigated. He was described as “odious”, while the Labour leader Ed Miliband called for him to be sacked. However, it is neither denigrating to victims, nor dilatory to the concept of rape to suggest that some types of offence are more heinous than others. This is especially relevant in sentencing policy, where – as is consistent with other offences – the Sentencing Guidelines require consideration of, inter alia, harm caused, the offender’s culpability, the nature of the activity and any aggravating or mitigating factors.
The political wound that Mr. Clarke suffered was not as serious as Mr. Galloway’s, but their injuries stemmed from the same source – a rigid, and unquestionable, perception of rape that has permeated the zeitgeist. There is no doubt that the offence itself represents a malicious blight on society; but, that does not mean we should not be able to discuss it.