It is easy to think that England is not so bad — we are basically free, even if we pay too much in tax. The counter-examples normally raised in libertarian circles usually include the way children can be taken away on a whim. Yet the real relationship of the state to the individual is much worse than this.
We are sliding into a full-scale overturning of the Common Law, which the Queen swore to uphold, as did each judge in his judicial oath of office. Today we read that new guidance will require a man to prove in court that a woman said “yes” to sexual intercourse.
This entirely overturns the legal basis of crime, which is that you are innocent until proven guilty. It is for the woman claiming rape to prove that she said “no”. No fatuous law should claim that a verbal “yes” or “no” is required either, as the very nature of sex is that urges take over and the whole sticky business proceeds in a hormonal way. What if there is no verbal indication either way?
Note that no statute is required to effect this major change: this is just “guidance” that will be issued to prosecutors and police forces. It seems guidelines issued by the Director of Public Prosecutions are now able to produce huge constitutional changes with no discussion in parliament.
To be honest, a woman who gets “legless” in a public place is opening herself to the possibility of being taken advantage of, but the solution is for such women not get so drunk they are unable to say no. In my view the type of women who get legless are likely to be “well up for it” anyway. It should certainly not be a crime for a man to seek to have sex with a drunk woman. This sort of guideline would be unworkable in real life. In some venues, there are no non-legless women to target.
These guidelines will also cover people who are reluctant to object to sex because the “perpetrator” is an employer (or teacher or fellow gang member). But relations of power over other people are part of any structured society where the rich and powerful will always have their way with underlings.
What about saying that those who object to being the object of sexual attention by employers and others should say “no” loudly and clearly if they expect to halt the act? Relationships characterised by financial dependence are also to be covered by the guidelines, but this could describe nearly every marriage.
The criminal justice system should not be “hacked” in order to increase convictions. If surveys — and we are only talking about survey evidence — show that 85,000 women are raped each year, with 90% knowing the attacker, but fewer than 3,000 cases go to court and only 1,000 convictions are handed down, then that shows that the very nature of the crime means it will only be possible to convict in rare circumstances. Incidentally, the fact that 90% of the women know their attackers illustrates the fact that most claimed rapes are simply not the result of unknown assailants jumping out of bushes. It is more the case that many women acquiesce in sex with people they don’t really want to have sex with owing to power relationships, but short of building a Marxist classless society, this will always be the case. I would argue the 10% of cases where the women don’t know the attackers are the real rapes.
In fact, only 15,000 claims of rape are reported to the police a year — much below the 85,000 figure — and these will include many false claims — and so it is not clear what problem the criminal justice system needs to be reformed in order to solve. If women don’t get drunk in public, that will be a very good start to protecting themselves.
