Why consent may not be the most important issue in rape

Many years ago I was part of a team of post-grad criminology students who did a broad study of the crime of rape in Victoria. Among the conclusions of that study was that the prevailing laws relating to rape were inadequate because they treated rape as such an all-or-nothing offence, a simple yes/no issue. And I mean that in the sense of both the issue of consent and defining the act.

The problem is proving, or disproving, whether consent occurred is very complicated. This arises mainly from the fact that sexual intercourse occurs both legally and illegally. Other serious crimes do not have this ambiguity. It is not likely that a person would be acquitted of murder on the grounds that the victim consented to be killed (current debates about assisted suicide, aside). It is equally unlikely that someone might consent to suffer grievous bodily harm or have their house burgled. Those crimes have a prima facie appearance being non-consensual. Sex on the other hand, is generally consensual; non-consensual sex is not as usual, though not as unusual as we would like.

Not only does sexual intercourse have both consensual and non-consensual versions, consent itself can be qualified, diminished or cancelled by the circumstances surrounding its granting. The first recommendation from the report we prepared long ago was that the crime of rape be replaced by a crime which might be called Coercion for the Purpose of Obtaining Sex. This would cover any situation where consent was obtained by fraud, deception, threats, blackmail, administration of a drug or any other behaviour designed to override or distort the free will of the victim. Obviously, physical violence which totally negates the need for consent would sit at the extreme end of that scale.

To a certain extent, this recommendation has now been adopted by the introduction of Sexual Harassment laws which make it an offence to coerce someone to have sex by, for example, threatening to have them fired, or harming their career. The definitions of harassment also include the use of persistence or beleaguerment to "wear down" the victims resistance. Thus we have progressed toward establishing a scale of offences ranging from bullying and blackmail up to such things as drugging and violence to obtain or nullify consent. The term "rape" however is still used to describe the more violent end of coercive continuum as if it were a crime with specific boundaries.

Framing a general law proscribing the use of coercion to obtain sex, however, does not assist in situations where the consent of the alleged victim is compromised by circumstances that are not imposed by the perpetrator. For example, consent can be invalidated when the alleged victim is suffering from a form of mental illness, mental incapacity, sexual ignorance, or the effects of drugs and alcohol. The last two of these are typically self-imposed by the victim.

This is a matter of particular concern. The prevalence of drugs and alcohol in social situations gives rise to a substantial number of cases where consent to intercourse is claimed and then denied, not necessarily in that order. Consider the following scenarios and please note any genders can be substituted. I have used "men" and "women" only because they are the players in the vast majority of these scenarios: 

1.   1. A man and a woman meet at a party. The woman has been drinking heavily. They go to a bedroom. There is a presumption on the man’s part, and it is assumed on the woman’s part, that they are going to have sex but before anything can happen the woman passes out on the bed. The man proceeds to have sex with her anyway.  Rape? Absolutely.

2.   Same as above. The man and woman go to the room. They indulge in foreplay, kissing, undressing, touching but before actual intercourse occurs, the woman passes out. The man has sex with her anyway. Rape? Almost certainly. Why almost? See below.

3.     The couple go to the bedroom and start having sex. During it, the woman passes out. The man continues to complete the act. Rape? Again, possibly but also possibly not.

4.     The man and woman have sex and the woman falls asleep. When she wakes she has no memory of what happened.  She realises someone a man has had sex with her but does not believe that she consented to it. She accuses the man of rape. Rape? Very difficult to establish.

5.     The man and woman have sex. When the woman wakes up the next day she recalls the encounter and recalls that she gave consent however she feels the man “took advantage” of her drunken state in which she consented to something she would not have normally done. Rape? Not according to current laws.

Clearly there are all sorts of variations on these scenarios including the possible inebriation of the man as well.

Of course Number 1 is clearly rape, and so is Number 2, though a court may decide that by participating in foreplay – which might reasonably be seen as demonstrating a desire to have sex – the woman had consented. The question then arises, even if she did consent in the first instance, is that consent invalidated by the woman passing out or falling asleep?

The answer is, yes, the initial consent is invalidated - or is it? A jury could take the view that in consenting to sex in the first place the woman entered into an agreement and falling asleep or passing out did not negate that contract. Now while that seems harsh, this is one derivation of focusing on consent as the critical determinant of rape.

Basing everything on consent willfully given, characterises sex as a kind of contractual arrangement and all contracts place obligations on the parties. The first of those obligations would presumably be that, after the sex has occurred, neither party will accuse each other of rape. The second would be that both parties agree to sex occurring - or perhaps that's the first one. Whatever the priority, there is a possibility that the agreement could be held to be binding even if one of the parties falls asleep or unconscious. 

Of course consent is not usually given in any formal legalistic way. If one party specifically voices the request "Do you want to have sex?" and the answer is "Yes," then you could say an agreement has been entered into. But, in most sexual encounters, agreement is reached by a series of coded invitations and confirmed by actions and responses. However, even in such indirect communications, a contract can be still held to be "implied" and a defense frequently used by men accused of having sex with a woman without consent is that they had an “honest belief’ that she was consenting based on her actions. This has been accepted by courts in many cases.  

As part of the same "honest belief" defense, claims are often made that, while consent was never explicitly given, 'she never told me to stop". This may be taken by a court to sufficient to establish an honest belief. That defense however would not play well in cases where the woman passes out because the prosecution will simply say "Well of course she didn't tell you to stop, she was unconscious." 

But herein lies another fundamental problem. Many people argue that the solution to ambiguity over consent is that consent must be given clearly and unambiguously and that men, as much as for their own protection as anything should make sure that they have clear and informed consent from the woman before having sex. However, what if the woman, for whatever reason, changes her mind? In that case, it must become equally essential for her to state clearly and unambiguously that she is terminating the consent. If a the man continues to have sex with her, after that clear statement of termination, then he has committed rape. But what if she lapses into unconsciousness without formally withdrawing her consent? For the man to continue having sex with her, as in Scenario 3, would clearly by clearly be immoral, distasteful and beastly. But is it technically "rape". Has he had sex with her without consent?

On top of all of these technical considerations is the overarching issue of proof. The critical problem is that, as in Scenario 4, if a woman drinks enough to pass out, then her memories of events immediately prior to that point would be likely to be impaired. If they are not actually impaired, their accuracy would be seriously questioned in court. Since the onus of proof in a criminal trial is on the prosecution, it is up to the alleged victim to prove that she did not give consent but the very fact that she was inebriated to the point of passing out raises doubts as to her capacity to remember the details of the situation and, specifically, whether she gave consent.

Even the Case 1, where she is clearly raped before she could have given any form of consent, becomes a difficult case to prove because the only undisputed facts of the case are that sexual intercourse occurred and, at some point, she passed out. The fact that she does not remember having sex does not mean that she was not conscious, and consenting during it. Even in a scenario where the woman does not actually “pass out” but is just very drunk - confused, perhaps dizzy, unable to stand, not fully aware of what was going on, how can a court reconstruct whether or not there was a moment when she clearly, and with full presence of mind, gave or denied consent?

One way of getting round these problems of defining whether consent was ever given or withdrawn is to virtually ignore the issue and try another approach.

Instead of focusing on whether there some sort of explicit or implied agreement, we could invoke the legal principle o judge the situation in terms of a Duty of Care. We could say that a person who is engaged, or intending to engage, in sex with another person has a duty of care towards them. This would mean that they would not attempt to have sex with them when they were unconscious, semi-conscious, or even just heavily inebriated regardless of any indication, stated or implied, of willingness to participate. In other words, the claim in Scenario 5 that, although the victim gave consent, she had been exploited while under the influence of alcohol, would have legal teeth.

This would mean that the proposed single law, covering Coercion for the Purposes of Obtaining Sex could be accompanied by another law covering acts where sex was obtained, not by coercion but by opportunistic exploitation.

Of course there are problems with imposing a Duty of Care on casual sexual encounters. It would mean requiring individuals to make a judgement about other people’s states of mind which they may not be equipped to make. It would also require them making decisions about other people’s welfare which, again, they might not have sufficient information to make. It is also something that might be unreasonable to expect in the (very likely) situation where both parties are inebriated or drunk affected and not acting responsibly to begin with. And of course, the notion of a men deciding what women "need" could be seen as patronising.

The Law has never generally regarded acts committed when drunk as different from acts committed sober. Being drunk is no defense (or should not be) to assault or murder. This is because the state of being drunk or drug-affected is held to be something the the person in question has willfully imposed on themselves and therefore they are responsible for any act they commit while in that state.  Traditionally, that has been extended to things such as an inebriated woman or man consenting to sex when they might not have done it while sober. The only time when consent is considered to be voided due to the effects of a drug is when the drug was administered by someone else, without the victim’s knowledge.   

However, the Duty of Care principle does not seek to overturn the "right" to consent. It does not concern itself with whether drunken consent is the same as sober consent and does not seek to decide whether a woman is responsible for the consent she gives while inebriated. It makes no judgement on the woman's actions nor her rights or autonomy. It applies entirely to the actions of the other party and how they affect the alcohol or drug-affected individual.

In this sense a law against Sexual Exploitation would in effect mirror the laws against Sexual Harassment which already include a duty of care component. Sexual Harassment does not necessarily require that the offender deliberately exploit their position to obtain sexual favours. It accepts that power does not have to be explicitly wielded as a weapon; the mere fact of someone being in a position to control someone else’s life, career, relationships, etc, can act as a form of coercion towards allowing intimacies even when no implicit or explicit threats are applied. It states that freely-given consent is not necessarily free when it is occurs on an unlevel playing field. People in positions of power or influence therefore have a duty of care not to exploit their position to gain sexual or other favours even inadvertently.

Similarly, a law of Sexual Exploitation would serve as a warning that even in a casual, non-institutional, non-hierarchical environment, any situation where there is a power imbalance - such as a relatively sober man and a woman who is clearly seriously inebriated  - there is a duty of care, irrespective of the matter of consent, not to not take advantage of the situation. The advantage of such a change in the law would mean that it was no longer necessary for a woman to prove that she did not consent, or that she consented initially but changed her mind, or wanted to change her mind but was unable to do so. It would not be necessary to prove what state of consciousness she was in at the time. It would only be necessary to show that the respondent in the matter failed to act in her best interests.

 

 

 

 

 

 

 

 

  

  

Was Hollywood a factor in the storming of the Capitol?

Looking at Facebook I came across a very serious fan discussion about Zac Snyder’s latest film with all sorts of comments evaluating his productions comparing Man of Steel with Sucker Punch etc etc.

I’m not sure how to react to people discussing films that are outright fantasies with such earnestness and commitment. I mean, to be seriously comparing movies that are so fantastical as to be downright silly, how can you even begin to discuss these except in terms of perhaps cinematography, special effects and stunts, for that’s all they really have.

To begin with, let’s clarify the difference between fiction and fantasy. It’s not a hard edged distinction but, in general terms, fiction means a narrative with imaginary versions of real people. The characters are fictitious but the types of people they represent do exist. Hence, the staple characters of Hollywood movies, cowboys, detectives, gangsters, soldiers, bank robbers, aspiring singers, doctors and so on are types of people who actually exist. Similarly the worlds in which they exist are comparable to ones that do exist, or have existed, in reality. That is not so say that those worlds are represented with documentary accuracy but that the general intention is to portray a modern city, the African jungle, or ancient Rome as, to the best of our knowledge, we imagine them in real life.

Fantasy, on the other hand, invokes elements that do not exist nor have ever existed. There appear to be two main fantasy modes. One is where fantasy characters inhabit realistic environments such as wizards living in modern London, superheroes flying around Los Angeles or zombies stalking small towns. Those fantasy characters also include bizarre villains such as deformed criminal masterminds with exotic names. The second is where realistic people are placed in fantasy environments e.g. astronauts exploring other planets or children passing through a wardrobe to find themselves in a mythical land.

Of course, there are fantasies where the both the characters and the environment are imaginary such as Star Wars and Lord of the Rings. In these, the authors have created an entire imaginary universe.

Sometimes these fantasies are called ‘science fiction’ but this is incorrect. Real science fiction speculates on the implications of actual scientific discoveries. The great science fiction writers imagined and often correctly predicted, future technologies such as space flight, submarines and so on. Often, as with the Invisible Man, or Forbidden Planet, they considered the social and moral implications of advanced technology.

Science fantasy, on the other hand, simply uses scientific concepts to justify what are really just magical events. In these stories, the characters have access to an array of “black box” implements like the famous “flux capacitor” (an intentional satire) in Back to the Future. The underlying technology of these things is never explained but they are required to make the story work. Hence astronauts are able to fly faster than light by flicking a switch to ‘hyperdrive’, or travel to another galaxy in minutes by going through a “wormhole” and, in Independence Day a scientist disables a massive alien spaceship by uploading a virus from his laptop. In other words, the “science” in these stories is not futuristic speculation, it is just a modern version of the deus ex machina.

But, getting back to Zac Snyder, the troubling thing about Hollywood is that over the last 25 years, the top-end output of the American film industry – which is to say, the so called “tent-pole” big budget, big audience movies - has been completely dominated by fantasy.

Some of those fantasies have been franchises built, parasitically, on successful originals such as Alien and Star Wars. Others have been derived from British works such as Lord of the Rings, The Hobbit and Harry Potter. So successful have these productions been that studios have rushed to adapt other fantasy authors’ works but not all of these worked: The Golden Compass, and Mortal Engines were flops.

The richest source of fantasy has been, however, comic books. Faced with a shortage of literate fantasy in America, the studios turned to illiterate fantasy – wildly fantastic stories illustrated in pictorial form for Americans who struggle with print. The Marvel Universe and the DC franchises have driven theatrical releases for almost twenty years now. So dependent are the studios on comic books that they have remade superhero movies that were less than ten years old to make them seem new. And like the comic themselves, they have sought to prolong the life of character franchises by combining then into ensemble movies with multiple superheroes.

Comic book fantasies however are significantly different from other fantasies. Firstly the characters were all originally designed, and continue to be designed in the movie versions, to cater to male fantasies and male feelings of inadequacy. Their original target audience was, and remains, male adolescents. (bear in mind that adolescence can now extend into the 30s) Even the female superheroes, with their exaggerated builds and tight costumes are male fantasies. The movie makers attempt to disguise the fact the women characters are just centrefolds in Spandex by endowing them some sort of feminist qualities, but this is just cynical appropriation. Has anyone noticed how similar Wonder Woman’s costume is to the Playboy Bunny’s outfit?

The other issue with these fantasies is that the universes they inhabit are incoherent. Unlike the fantasy worlds of Lord of the Rings, Narnia and Star Wars, where the writers have constructed a universe with its own rules, history, geography, races, politics and culture, the Marvel Universe was cobbled together to bring a series of characters that were originally living in separate worlds, into a shared world. As a result, nothing in this “universe” makes sense. Thor, a character from Nordic mythology who lives in Valhalla, somehow co-exists with mutated humans such as The Hulk, technologized humans (Iron Man), vampires (Blade) and psychics (Black Widow). As more and more characters from the vast range of Marvel comics are included, the MCU (Marvel Cinematic Universe) makes less and less sense to the degree that they now have no choice but to call it a “multiverse” containing a set of subsidiary “universes” which in turn contain the multiplicity of competing “teams” such as Avengers, X-Men, Fantastic Four, and Agents of SHIELD.

There is no overall structure to this multiverse nor in any of the sub-universes it comprises. There are no common rules, laws or culture, no explanation of their origins other than the fact that the company came up with all these different but, somehow, similar superhero creations.

There is no sense of actual community amongst the characters in these comic book tales, only a kind of tense camaraderie and sometimes a common origin like being raised together. Whatever their common experience however, the uniqueness of their superpowers, keeps them apart. The whole comic book cosmos is made up of individuals who socially alienated. They are either outcasts, such as mutants rejected by society or people with special powers who must keep their hero identities secret. Others are powerful but disaffected loners like Tony Stark and Bruce Wayne who reinvent themselves as vigilantes battling against an evil world. This population of alienated, angry and differently-abled individuals come together in loose, leaderless, coalitions to vent their anger and defend the world, through violence, from the evildoers which threaten it,

Now, does that not remind you of the mob that attacked the Capital Building on January 6th?

But wait, you say, are you saying that watching Marvel movies turned these people into violent protestors?

Well…. yes! But not just Marvel movies. When you look at the whole range of Hollywood movies on offer at the cinema, on Netflix, Amazon etc. the prevalence of fantasy, and in particular, violent fantasy is overwhelming. Hollywood movies are dominated by a set of genres characterised by pessimism, violence and irrationality. There is a massive number of movies set in an apocalyptic future where either the world is dying, or has died, and people are either surviving in the ruins or trying to escape on spaceships. Note this bears no relation to the kind of space exploration series like Star Trek which belongs in an optimistic future. This genre includes movies where the world as been taken over by zombies, vampires and other aliens. They are basically end of the world fantasies and the underlying theme is survival.

There is another vast genre which can be described as Revenge Fantasies. In this, a father or husband has to rescue his daughter or wife from criminals, terrorists or some other bunch of bad guys. (It’s more exciting if he has to fight a whole gang.) Luckily, the father or husband always turns out to be a cop or ex-CIA assassin. (Boy did they tangle with the wrong guy. Ladies, if you want to feel safe, marry a former professional killer.) There is also a female equivalent – again masquerading under some sort of feminist banner – where a woman is assaulted and takes her revenge with a 9mm automatic. What all these stories have in common is a private citizen dispensing rough justice because the authorities won’t or can’t act against the villains.

A third genre takes this further. In it, the villains are the government. Typically, a mysterious death leads to a massive conspiracy at the top levels of the government, the military-industrial complex, the oil industry or energy companies - almost any corporate body will do. Hollywood has been portraying big business as intrinsically evil for decades.

So, right there we have a series of themes that fuel feelings of paranoia and mistrust. The world is in trouble; we’re heading for destruction; the whole administration in Washington is corrupt and is not only not tacking the problems, it’s causing them; we cannot trust or rely on the police or even the army as they are all controlled by the government, the mob or the CIA which has conspiratorial sub-groups in it – CIAs inside the CIA. The salvation of the world lies with us citizens, brave individuals who will take up arms and stand up to the conspirators and criminals. Otherwise we will not survive.

Again you say, but these are just movies. People know they are just movies. No one takes them seriously.

But they do. And that takes me back to how seriously people discuss movies by fantasists like Tarantino, Snyder and Marvel.

It is apparent from reading fan comments that although these movies which are simply just dumb, formulaic, action packed macho fantasies, that many Americans think they deal with serious themes. And when you look at the violent Trump supporters, the correlation between their beliefs – the world is in danger, the government is evil, there is a conspiracy to enslave and the answer is guns or other weapons  – and the texts of Hollywood movies is to strong to be mere coincidence.

The question is whether Hollywood is the cause, or just a reflection of these mind-sets.

The answer is that it is a cycle. There is a feedback loop between Hollywood and audiences, a feedback loop that operates through both ticket sales and direct research. The studios make a picture that people go to so they make another one just like it. But they push it a bit further. If the audience likes a hero with a big gun, maybe they’ll like a hero with a bigger gun. If they like a movie where the villain is the town mayor, maybe we should try one where he’s a governor. What if he’s a Senator? Or how about the President himself? Sometimes they go too far and have to pull back but, if so, it’s only temporary. When Texas Chainsaw Massacre was released in 1974, it was banned in Australia and many other places. Today it is regarded as a mild splatter movie and we in Australia make movies just as violent. The first revenge movie was probably Death Wish (also 1974) with Charles Bronson. It was also too violent for many people. Today, Revenge is a whole genre led mostly by Liam Neeson.

The escalation and acceptance of violence in movies (to the point where a movie about a psychopath who skins women and another psychopath who eats people won an Academy Award) can only be explained by a reciprocal change in audience’s reactions and tastes. It is not just a matter of desensitization as some people describe it, but a gradual increase in the excitement at seeing violent situations and the desire to see even more action and more violence. Even children’s cartoons, formerly harmless and conflict free, were taken over by violent Japanese cartoons about superheroes and villains in the Eighties

The books people read, the songs they listen to and movies they watch are pretty good indicators of the psychological state of the population. Different countries produce different types of movies which is one of the ways we know there are different cultures across the world. Only perhaps China, with its graphic historical epics and kung fu films, has produced movies as violent as America

The other important thing about the love and acceptance of fantasy films is the issue of logic.

To have an intelligent population, people have not only to be educated, they have to be able to think logically. They have to not only understand logic but respect logic, to know how important logic is to a functioning society. One of the results of the scientific revolution of the 1800s was the advent of the detective novel. The detective genre was unknown before the late 19^th century but was established by the appearance of characters such as Sherlock Holmes who used logic and science to solve crimes. That genre has continued for over a hundred years in the books of Agatha Christie and other detective stories. Many people watch detective books and TV show because they like trying to work out the solution. They also like doing cryptic crosswords and Sudoku puzzles. And this is a good thing: the more interested people are in logic, the less likely they are to believe absurd theories and rumours.

So it is not a bad thing for people to get annoyed when movies are illogical. (I'm defending myself here, as a chronic mistake pointer-outer) We all know that we are supposed to suspend disbelief when we watch fictional creations but with many American movies, belief is not being suspended, it is being hung, drawn and quartered. If the job of the movie maker is to tell a story, it is not only justifiable, but a responsibility to point out when the story doesn’t make sense. Yet, a lot of movie goers seem to accept glaring anomalies in stories. Why is this? I believe the reason many movie goers overlook glaring logical problems in movies today is not because they are suspending disbelief, but because they simply don’t see the logical errors. That is a completely different situation.

All this dovetails with the reality of millions of Americans sincerely believing the 2020 election was rigged, and that vaccines are designed for mind control, that 5G phone tours cause Covid and other beliefs too irrational to even describe.

Can movies that extol the value of intelligence ever overcome the attraction of the mindless movies of Marvel and Christopher Nolan? Probably not. Firstly, because movies about smart people – Imitation Game, Hidden Figures and so on – depict intelligence as belonging only to a people with rare freakish, savant, abilities. Intelligence is not a quality you expect to find in the average citizen. Looks are far more important. Also, because intelligence leads to questioning and analysis, then doubt, and possibly denunciation, derision and denial, it is not something that advertisers, merchandisers, political parties, religious groups, conspiracy theorists, doomsday cults and the entertainment industry want to encourage. It could put them out of business.

 

Dark World: The Rise of the Millennials

It has come as a shock that, even as the COVID 19 epidemic is still in progress, demonstrations and riots about issues unrelated to the epidemic itself would break out all over the world. At a time when individuals are still being urged to isolate themselves, there have been waves of demonstrations, riots, protests, assaults and destruction of property. The trigger for these events was, in the first instance, the killing of an unarmed man by Minneapolis police but the protests have gone far beyond the issue of police brutality and racism to matters such as indigenous rights, historical racism, colonialism and imperialism. The marches and demonstrations have also been infiltrated and to a great extent captured by opportunistic Marxists and anarchists which has escalated what were intended to be peaceful protests into violent clashes.

Racism has been, and continues to be, a problem in the United States and the radical political groups who have exploited the death of Floyd, have been around for decades but what accounts for such a massive conflation of issues, and the level of anger and violence in these protests during an unrelated national emergency? And why have these events spread to other countries such as France, Britain and Australia?

In answering this question we must first recall that, even before the COVID epidemic, there were rolling demonstrations regarding climate change and other issues on an almost daily basis in Australian cities. Additional outrage over the George Floyd homicide – so graphically recorded on video - plus the social disruption of the epidemic, provide part of the explanation for this explosion of anger. But there’s something else.

What we have just seen is the first mass manifestation of attitudes, beliefs and possibly the power, of the Millennial Generation.

There are very few times in history when a specific group of young people can be defined as a “generation”. Generations were always something that were counted within families, not right across societies. Perhaps the first named generation was the Lost Generation, referring to the people who went through the First World War. Most famous is the generation called the “Baby Boomers” who were the children born in the years after World War 2. There have been attempts to define subsequent generations such as Gen X and Gen Y but these categories are unconvincing because they do not demonstrate a clear commonality in either time of birth or culture. The Millennials, however, people who have grown up in the 21^st century, do constitute a definable generation because what creates a generation is not just being born around the same time but the kind of world that they grow up in.

The Baby Boomers were a distinct group because they grew up in a world that was culturally and technologically very different from that of their parents. They were the first generation that grew up with television, in some cases from infancy. They were the first generation to be called “teenagers”, a demographic category invented by the business world to sell youth-oriented products. They were thus the first generation of people between physical maturity (puberty) and social maturity (adulthood) to have music, movies and fashion designed just for them. The advent of plastics and electronics led youth-oriented products such as transistor radios, portable record players and cheap 7” records which in turn led to a huge industry in music aimed at teenagers. Around that time, radios also became standard equipment in cars which, added to emergence of drive-in theatres, and the fact that US teenagers could get their licences at 16 afforded unprecedented freedom, and privacy, to people who were no-longer children but not yet recognised as adults. Plastics also enabled the creation of such things as light-weight surfboards which led to surfing and beach culture - the Beach Boys were an unforeseen by-product of fibre-glass Running through all this, was the constant reaffirming that young people were members of a new generation, a generation which was destined to be, and in fact already was, different from their parents.

That sense of being different was enhanced by another critical factor. More Boomers completed High School and went onto college and university that any previous generation. Boomers were very often the first members of their family to go on to Tertiary education. This, of course, enhanced their sense of being different from previous generations even more. Now, having three years of social studies, psychology, politics or literature under their belts, they felt intellectually superior to the parents. They also felt intellectually superior to people in government, people in business, in fact just about all authority figures. The problems in the world were not due to historical forces or necessity, they were due to the ignorance, narrow-mindedness, racism, sexism, intolerance, chauvinism, commercialism, militarism, prejudices and contempt for the environment of the older generation. The Boomers of course, under the guidance of a select view of enlightened older people, were going to change all this. It was going to be the Age of Aquarius.

In this way the children of the Baby Boom created flow-on booms in several sectors of society including the music, fashion, and education industries, as well as, unfortunately, drugs. Part of the cultural differentiation between Boomers and their parents was in the attitude to drug-taking. To parents, drug taking (as distinct from alcohol and nicotine consumption) was the lowest form of activity. Boomers however were led to believe, again by older Influencers (I'm looking at you Cheech & Chong), that a dope-smoking world would be a more peaceful one and that psychotropic drugs such as LSD and mescaline were doorways to enlightenment. This led to significant social problems at the time which have increased over time. It is worth noting that the drug cartels of Mexico and Colombia, which are more powerful than the governments of their countries, were created and financed almost entirely by middle-class Americans buying marijuana and cocaine.

Now let’s consider the Millennials. Just as many Boomers never knew a time without television, Millennials have never known a time without the Internet. They have no concept of what life could have been like before the Web, email, mobile phones, tablets and social media. Many Millennials have never read a newspaper, and few of them now even watch television, which raises serious questions about how they get their news. Like the Boomers they have been consumers of goods and services aimed specifically at their generation. The stand-out of course is the phone itself, which to older people was a way of talking to someone, but due to the ministrations and, one might say, machinations, of people like Steve Jobs, has become a machine for the portable consumption of entertainment. It allows people to access entertainment in almost any situation, 24 hours a day. Phones are now as important to the modern teenager as the car was to the Baby Boomers as a facilitator of social interaction.    

There is still a large music industry targeting young people though it is now compromised by the vast inventory of popular music that has accumulated since the Fifties. It is not unusual, remarkably, for Millennials to listen to Elton John and Queen – music that is 30 or 40 years old. That is the equivalent of teenagers in the Sixties listening to jazz bands from the 1920’s – a highly unlikely scenario. Commercial products and services aimed at Millennials include PC games, consoles and console games, social media apps and a burgeoning number online services which allow people to become personal broadcasters. We must also include the burgeoning industry of medical and psychological services aimed at young people. Millennials are more likely to be consuming medication than any previous generation. While Boomers may have believed in the benefits of cannabis, Millennials rely to a disturbing degree on anti-depressant, anti-ADD and anti-anxiety medications, often from a very young age, despite the fact that they have less to be depressed or anxious about that any previous generation of people.

This leads naturally to considering the differences between Boomers and Millennials. The most obvious difference between them is that the Boomer generation was infused with an optimism about the future, albeit often misplaced. There was general prosperity in the world in the Sixties, and people graduating from college in the Seventies had a pretty good chance of getting a job. The Age of Aquarius never really came about, except for the few hippies who moved to the hills and built mud-brick homes but Boomers have generally done well financially. The culture of the Millennials on the other hand is utterly pessimistic. They have absorbed all the apocalyptic theories of the environmentalists, and climate-change alarmists and anti-capitalists. They are horrified by what they see as entrenched racism, xenophobia and environmental neglect in Western Society and despair for its future. This, at first sight, seems odd since they are the most nurtured generation in history. They have gone through school with smaller class sizes, more individually-tailored teaching and extra support staff than any previous students and have also been spared many of the strictures of previous educational regimes such as corporal punishment, compulsory competitive sport, even written exams. Could this nurturance itself have led to heightened anxiety and pessimism?

Despite living in quite different technological and psychological eras, what Millennials and Boomers share is a sense of being special and important. Just as the Baby Boomers were made to feel special by having fashions and music made just for them, and people telling them they were smarter and better than their parents, the very nurturance experienced by the Millennials - the helicopter parenting, psychological hypochondriasis, over-diagnosis of conditions such as autism and similar conditions, removal of anything potentially disturbing from education materials - and a resulting trend of narcissism that sees people take more pictures of themselves than anything else - has imbued the Millennials with a sense of their own cosmic importance. Nothing demonstrates this more than the sight of an entirely unspecial Swedish teenager addressing the United Nations and upbraiding the older generation for destroying her life and her future.

The difference between Boomers and Millennials thus comes down to this: the Boomers regarded themselves as victors. The Millennials both see themselves as, and identify with other people who see themselves as, victims.

This year, children born in 2001, the first true Millennials, turn 19. They are now in the last year of their teenagerhood and will be entering the workforce over the next few years. In twenty years time they will be reaching positions in management and will be making important decisions.

We are now coping with the fact that many people in senior positions in society are the children of the Sixties who still carry inside much of the utopian/Aquarian baggage of that era –mistrust of authority, capitalism and even Western culture in general. What kind of world will be built by a people who get all their information from the Internet, have been in counselling since they were 12, whose photo collections consist of nothing but selfies, and have never read a book written before 1997? Will they have the ability to fix and reunify the fragmented world created by the Boomers, or will they sleepwalk down the road of good intentions into a dark world of self-defeating rage, intolerance and ideological totalitarianism?

   

Despicable Me

Over the last few years there has been an increasing number of essays and books decrying the way humans regard themselves as the only species that matter and are destroying nature for their own selfish gain.

I’m here to admit that this is true, and I’m the one doing it.

Yes, I am the evil mastermind who is despoiling the planet for the sake of my own comfort. For you see, I am a human. I like to eat meals, have a roof over my head, read books, watch movies and have a phone and a computer and machines to heat and cool both my food and my house. I like to have a car, to be able to fly in planes and watch movies. I want to feel safe in my own home and to know that if I am sick I can go to a hospital. That’s my evil plan and in order to carry it out, unfortunately I have to plunder nature.

Of course I can’t do it alone which is why I have Minions – millions of them stationed around the world. Every day my Minions are busy mining iron, copper and aluminium. They’re cutting down trees, fishing in oceans, digging up limestone, drilling for oil and pumping gas and water along incredibly long pipelines. They are digging up coal and burning it in boilers to power my lights, refrigerator, computer, and television as well as all the trains, trams, hospitals, elevators and shopping centres that I love. And my minions are not just dumb labourers. They’re smart. They have taken wild oxen and bred them into cows that produce megalitres of milk, and tonnes of lean meat. They’re changed wild sheep into walking clouds of wool that make my blankets. They’ve genetically altered wild grains to make crops that yield tonnes of food – enough to feed the whole world. Of course this involves clearing land, damming rivers and so on but that’s all right with me. Nature does not give up its bounty willingly. It has no interest in our welfare and never has. My Despicable Ancestors lived their lives in fear of being eaten. They weren’t apex predators. They spent their time building walls to keep out wolves, bears, lions, leopards and sabre-tooth tigers that regarded them as Paleolithic Take-away. They realised that to survive they had to fight nature and win, and they did. They eventually managed to pretty much eradicate these predators from Europe. Then they cut down the vast forests that housed those threats, and turned them into productive farmland. Of course, today we are still not at the top of the food chain because we are preyed on by bacteria. However, thanks to the ongoing work of my loyal minions (Microbiology Division) we all have a good chance of living into our seventies which was unimaginable only a few centuries ago so - Go Minions!

Of course the Heroes who want to defend Nature hate me and my Minions and are sworn to destroy us. But they will never succeed. Their attempts are laughable. Are they able to offer us anything as nice as an electric blanket on a cold night or a crisp ice-berg lettuce (not that dreadful limp rocket)? And if I and my Minions can eradicate sabre-tooths, bubonic plague, smallpox and tooth decay we have no fear of them. But here’s the funny thing: the Ecowarriors who have dubbed me "Despicable" are doing all the same thing I and my Minions do. They too live in dwellings, eat food, ride in motorised transport, wear clothes, use mobile phones and publish their attacks in printed books. So are they not just as despicable as I?

It’s puzzling to me why anyone should wish to abandon all the wonderful things my Minions have created, but I bear them no ill will. If they really wish to have no part of my evil plan to rule the worlds, I have a solution. My Minions are presently creating a resort – an island where Ecowarriors can live in harmony with nature. It’s called Pliocene Park and it replicates the Earth as it was 5 million years ago before the planet was despoiled by human hands. I am willing to send any of my critics there to live, free of charge. There they will be able to enjoy a pre-human paradise complete with forests, fresh running streams, nuts, berries, butterflies, anopheles mosquitoes, wolves and bears. We've even included a couple of sabre-tooths. Bookings will open soon.



  

It's time to abolish the crime of rape

Recently, the Four Corners program on the ABC documented the case of a young woman called Saxon Mullins and the man Luke Lazarus who was convicted of raping her and then had his conviction overturned by on appeal on the grounds that he genuinely believed she was consenting to intercourse.

This case highlights the problem with our rape laws as they currently stand.

First of all let me say that the Appeal Court judge erred by exonerating the accused in this case. If the court had applied the “reasonable man” test, Lazarus’s conviction would have stood. The “reasonable man” test is a criterion often imposed in legal deliberations based on how a reasonable person might be expected to act in a given circumstance. In this case, although Mullins admitted she did not clearly and forcefully tell Lazarus to stop, or could not recalling doing so, no reasonable person would have expected an 18 year old woman who has never had sex, to want her first sexual experience to be on her hands and knees in a filthy back alley being anally penetrated by a man she had just met.

There is also the fact that Mullins admitted she had consumed a fair number of drinks which suggests her ability to consent or to maintain control of the situation was very likely to have been impaired. That is something that Lazarus also should have understood. Again, a reasonable man should have realised that, even if she gave consent or appeared to be passively allowing intercourse to take place, because she had been drinking, her judgement was likely to be impaired.

The appeal court’s decision in this case seems to relieve the alleged rapist on any responsibility for ascertaining the state of mind of the alleged victim or indeed having any due care for her overall welfare. Indeed there is very little clarity in Law as to what the responsibilities of the man are (I am speaking of men having sex with women but the discussion applies to any combination of sexes) in relation to determining the state of mind of or the potential consequences for, the woman. For example does the man have to be convinced beyond a reasonable doubt that the woman is consenting, or can he just make a decision on the balance of probabilities. And how scrupulous is he supposed to be in making sure her consent is not only informed but is not emanating from some state of impaired judgement?

Furthermore, does the man have a responsibility for the welfare of the woman beyond the immediate situation? In the classical interpretation of the crime of rape, apparently not. To put it crudely, the traditional rule is if she allows it to happen, then it’s her fault, she bears the consequences.”

The problem is the crime of  rape is a binary concept. An act is either rape or not rape depending on whether there was consent or not consent. But the idea of consent itself is essentially an artefact of the legal system. It fails to reflect the actual complexity and subtleties of sexual encounters. Because a judge or a jury has to find the defendant guilty or not guilty – which is a binary decision – the basis for that judgement, which is consent, has also been configured as a binary concept.

But consent cannot be considered as a simple matter of yes or no because it can be obtained in so many different ways. Consent can be obtained through promises, payment, fear, fraud or the deliberate impairment of judgement. Threatening someone with a gun or a knife can clearly elicit consent. Intercourse with someone who is unconscious or disoriented by drugs or alcohol to the extent that they are not aware of what is happening is also not consensual and situations where a woman has sex with a man thinking he is someone else also negates consent. So even under the traditional tests, consent alone does not legitimise intercourse.

But those invalidations do not go far enough. Explicit threats of violence or a visible weapon are not  required to induce fear. Fear can arise purely from the circumstances, from perceived or imagined threats. It can arise from a psychological condition in the woman herself. That fear might be unreasonable or unjustified but it still negates her consent.

If a court is prepared to give weight to the man’s subjective assessment of whether the woman is consenting, surely the woman’s subjective assessment of whether she is at risk must also be taken seriously.

To qualify all this let me explain that, in the late Sixties, I was part of team of researchers at Melbourne University who conducted a post-graduate study into the crime of rape. It was, at the time, one of the few studies and ever done on the subject and certainly the most comprehensive study done up to that time. One of the key findings of that study was that the traditional definition of rape as being intercourse without consent was inadequate and a recommendation was made that the crime itself would be better abolished.

It was clear to us that, rather than a binary definition of rape/not rape, there was a gradation between willing consensual sexual intercourse and forcible sexual intercourse with violence or death threats. Between those opposites lay a range of interactions and somewhere along that line was a point where those interactions changed from acceptable to unacceptable. It was the point where means of obtaining sex turned from legitimate to illegitimate: where courtship became coercion, where seduction became harassment and inducement became entrapment.

The suggestion of our report was that the crime of rape be replaced by a stature dealing with sexual imposition or sexual coercion. Fifty years later, partly because of the campaign against sexual harassment, that idea is finally starting to gain traction.

Traditionally the role of coercion has not carried sufficient weight because there was a notion that women should resist rape even to the point of dying rather than submitting to it. A woman who did not fight to the death was thought of as having placed her life before her honour. That is not so far from the situation in some countries where women are still imprisoned for being raped but it is worth remembering that shades of that existed in Australia as recently as about fifty years ago.

A reformed code of sexual violations would widen the concept of unlawful sexual acts to include any situation where the ability of a person to make choices that are free, informed and beneficial to themselves is impaired.

It would also impose clear responsibility on anyone instigating a sexual encounter to make all reasonable efforts to ensure the encounter was the result of an informed, uncoerced decision by the other party and further that there be no detrimental consequences for that other person. Furthermore it would define a criterion for establishing consent which would not be simply on the balance of probabilities but that which is used for criminal trials themselves – beyond a reasonable doubt.

There are many situations where consent is not so much invalidated as irrelevant. For example, a  situation that people I know have experienced: a man offers to drive a woman home but instead drives her to a remote location far out of town. She is given the choice of having sex or getting out of the car. Historically, if the woman agrees to sex, the man is not guilty of rape because he made no physical threats and the woman did have the option of leaving. He is however guilty of creating a situation where, if the woman does agree to have sex, or allow him to have sex with her, she is consenting to an act that she would not have otherwise consented to. That is the key element of coercion. In that situation, a court would traditionally have focussed on the decision that she made and decided she made a free and informed choice to have sex rather than walk twenty miles home. However that would be  to focus on the wrong issue. The issue is not what the woman decided: it is that she should not have been forced to make a decision at all.

(Incidentally, it is surprising to me that Lazarus was not charged with abduction since he told Mullins he was taking her to the “VIP” room of the nightclub but actually took her out to the back alley. Lying to her about where they were going makes it technically an abduction. It also goes to establishing his intentions since that lie was clearly the first step towards engineering a sexual encounter.)

Another case that is all too familiar is the situation where a woman finds herself compelled to have sex with a man just to get him to leave, or let her sleep. A man keeps a woman up all night till she is exhausted, or won’t go home until the woman gives in and consents to sex. This is in fact the literal meaning of harassment – to harry someone to the point of exhaustion.

The fact is that woman can be coerced, blackmailed or tricked into having sex in a number of ways that violate their autonomy but don’t technically qualify as rape or even assault. They take the form of fraud, blackmail, extortion, beleaguerment, psychological manipulation and various forms of domination.

Domination, which appears to be the key factor in the Lazarus case, is one of the most common and most dangerous forms of sexual coercion or bullying but  also the most likely not to be acknowledged as a form of coercion because of a long-standing notion that women find it erotic. Domination is the situation where the man does not become aggressive or threatening but becomes "masterful" giving orders and exerting control over the woman. Women, especially young women, are likely to find themselves with the man's instructions not because they are impressed by his masterfulness but because they simply don't know how to deal with the situation and regain their autonomy.

The main argument for replacing the crime of rape with general, graduated, crime of sexual coercion is that the acts which constitute sexual imposition - that is: extortion, blackmail, bullying, harassment, deception etc - are already illegal in other fields of human endeavour.

Many of the means that men use to obtain sex from women are methods that would invalidate, for example, a sales contract. A contract for the purchase of goods that was signed under duress, because of exhaustion, or fear, or false promises would be quickly invalidated by a court. But, oddly, the same scrutiny is not applied to agreements for sexual activity.

The point is that the criminality in a sexual assault or any other sex crime does not reside in the sex itself. The illegality lies in the means that used to bring the act about. We accept that you cannot obtain goods or money by deception, by coercion, by blackmail or by forcing people to make instant decisions. That’s why we have cooling-off periods for all major purchases such as houses and cars. The law recognises that people can be confused by sales pitches and will commit to detrimental financial deals that they later regret. In other words the law is prepared to protect us from our own decisions, even ones we made freely, or thought we were making freely, at the time.

Without wishing to trivialise of the Mullins/Lazarus case, imagine that, instead of it being about a woman having sex with a man in an alley, that Lazarus was a car salesman who had sold Saxon Mullins a car she didn’t want for an exorbitant price.  Any court would have annulled the sales contract saying, firstly, she was too young to enter into such a contract, that in any case it clearly wasn’t the sort of car she wanted and that he had taken advantage of her youth, inexperience and vulnerability to sell her a car which was basically junk. His defence that he “sincerely believed she wanted that car” would fall on deaf hears and he would be fined and probably lose his dealer’s licence.

Surely a young woman’s dignity is more important than a car.  

Paintings vs Painters

A couple of days ago a French museum in the south of France, dedicated to the work of painter Etienne Terrus, discovered that more than half the works in the museum were fakes. This was described by curators as a “catastrophe.”

But here’s the thing.

It’s most likely that, unless there was an entire Terrus-faking cottage industry in the Pyrenees, most of the 82 fake paintings were painted by the same person. Now, we don’t know who the faker was but let’s call him Benny.

Now, if Benny was not as good a painter as Terrus, the question arises as to why the curators did not pick up that half the collection was not as good as the other half. Did they assume that, like most painters, Terrus had good days and bad days. But if that was their assumption, why hang paintings that were not the best examples of the painter’s work, let alone make up half the collection out of them.

My belief would be, however, that the curators were fooled into acquiring these paintings because they were exactly the same standard of painting as Terrus’ work. And that raises the question: if Benny is just as good a painter as Terrus, why aren’t his or her paintings just as valuable, just as significant, just as worthy of being displayed.

A few years ago there was an art scandal in Sydney where someone bought a large painting alleged to be painted by Brett Whitely. It was later shown to be fake. Again, here’s the thing. If you like the kinds of paintings Brett Whitely did and would like to have one, and you find a painting that is like a Brett Whitely painting, so close to his style that art aficionados think it could have been painted by Brett Whitely painting, then surely your wish has been granted. Surely a painting that looks just like a Brett Whitely is as good as a real Brett Whitely if that's what you want to look at. If you insist that the painting not only look like a Brett Whitely but have been actually painted by Brett Whitely, you’re not really interested in the painting itself, you just want the name.

My advice to the curators of the Terrus museum would be: if half your collection of wonderful paintings was not done by Etienne Terrus but by an unknown artist I have dubbed "Benny" find out who that artist is and rename the museum the Musee de Terrus-Benny and let it honour two artists who are clearly equally good.

Nine responses to bigots who oppose same sex marriage.

Here are nine responses you can make to people who say they oppose Same Sex Marriage.

1.      Marriage is by definition between a man and a woman.

Wrong. That is not the “definition” of marriage. The word marriage simply means “joining together.”  It’s like saying the definition of alcohol is “a beverage that cannot be sold to anyone under 18 years of age.” The definition of alcohol is a beverage that contains ethanol. “Between a man and a woman” is a local limitation placed on marriage just like the age restriction is a limitation placed on alcohol. It’s not the definition.

This is demonstrated that, just as the age you can legally drink changes from place to place, many countries recognise Same Sex marriage as the same as Male-Female marriage, so the  “between a man and a woman” condition is clearly a local issue.

2.      “I don’t mind same sex couple living together but it shouldn’t be called a ‘marriage’. Give it another name.”

This is pretty much the same as saying, “I don’t mind a bunch of women going out onto an oval with stumps, a bat and a ball and bowling the bowl and hitting it with the bat and scoring runs but don’t call it ‘cricket’. Cricket is a game played by men.”

Things should be called by their proper names. Cricket is cricket and marriage is marriage.

3.      Legalising Same Sex Marriage will change our societies forever.

Yes, for the better.

4.      Legalising Same Sex Marriage will change our societies for the worse.

Firstly, “legalising” is not a good word. Same Sex Marriage is not currently illegal. It is perfectly legal for Same Sex couples to live in marriage-type relationships.

Secondly, those marriage-type relationships ARE currently recognised as legal marriages by a many government and private organisations. Centrelink, the ATO, the Family Court and courts in general will recognise those relationships as de facto marriages and treat the partners accordingly.
“Ahh,” says the homophobe, “But de fact marriages are not real marriages.”

Yes, they ARE. That why they include the word “marriage”. Saying a de facto marriage is not a marriage is like saying a yellow car isn’t a real car. Yes, it is a real car, it’s a yellow car.

5.      “Why should a small minority of people (meaning gays) tell us what to do?”

The gay community is not trying to tell others what to do. They are not trying to place restrictions on Male Female relationships, so why are people trying to place restrictions on gay relationships? They only want to be able to do what everyone else is doing.

6.      “The people have a right to be consulted about this change.”

Why? They weren’t consulted when the “a man and a woman” clause was added only a few years ago. They weren’t consulted when homosexual acts were decriminalised.

As I’ve mentioned before, had you conducted a plebiscite in the state of Mississippi in 1960 as to whether African Americans should be able to vote, it is highly probably that the majority of Mississippians would have voted “no.”  If that were the case, should the government have legislated accordingly and restricted the vote in that state to whites only? Of course not. It is not part of the democratic process that any majority can deprive a minority of rights that they themselves enjoy. The right to vote must be universal. The right to marry whom you want must also be universal.

7.      “I’m sick of being bullied by these LGBTI extremists.”

Cry me a fucking river. Do you want to talk about the bullying that gay, lesbian and trans people have had to put up with for two thousand years?

8.      “It’s such a huge change.”

No, it’s just a technicality. It only means that Same Sex couples get to sign a marriage certificate at the end of their wedding. That’s all. It’s just about a certificate which then gets filed with the Registry of Births Marriages and Deaths. It creates a public record of your relationship which is what "legal" marriage is really all about.

9.      “Just because I’m opposed to Same Sex Marriage doesn’t make me a homophobe."

Yes it does.