Back to the Burqa?

As I noted last week, we keep reading and hearing of rape. Almost always it is men who do it to women, rarely the opposite. There are three reasons for this, all of them important. First, as the French sage Denis Diderot (1713-84) once wrote and the absence of male brothels indicates, perhaps the most important difference between men and women is the formers’ greater ability to enjoy the embraces of strangers. Second, there is the overall difference in physical strength. In lower body it is as five to three; in upper body, as two to one. Third, there is the obvious anatomical difference between the genitalia of people of both sexes. For a woman to rape a man is almost impossible; even if she can overcome him in a hand to hand struggle, or else by threatening him weapon in hand, when the critical moment arrives his apparatus may very well not function.

The three factors are linked. Women’s physiology puts them at risk of becoming pregnant and also makes them more vulnerable to STD. As a result, throughout history they have had more to lose from casual intercourse than men did. True, the introduction of modern contraceptives has gone a considerable way to alleviate these problems. But this does not change the fact that women, having weaker bodies overall, still have more to fear in one-on-one encounters where most sex takes place.

The difference in strength means that, other things equal and except under rather unusual circumstances, the only ones who can save women from being raped by men are other men. Occasional suggestions, put forward by feminists and others, that women should take self-defense classes or carry some kind of weapons from pepper spray upwards tend to be not only useless but counterproductive. Men, after all, can learn judo and the use weapons at least as well as women can. That is why chances are that, if women take up these suggestions, they will only add physical injury to the unpleasantness, humiliation, and psychological trauma that being raped entails.

Rebus sic stantibus—and I do not see that they are going to change any time soon—the only remaining question is: Which men should do the protecting, and what forms should the latter assume? Note that, during the first ninety-something percent of their existence on earth and in many places until very recently, humans have lived in tribes. One outstanding characteristic of tribal life is the absence of a strong, centrally-run, police force able and willing to deal with crimes of every kind. All the more so, of course, in case the tribe in question is nomadic as most were for a long, long time. Rather, should any kind of crime be committed, it is the victim and his or her relatives who are expected to deal with it by demanding revenge and inflicting retaliation.

Focusing on rape, an excellent example of the way these things worked is provided by the book of Genesis (34.1-31). “And Dinah, the daughter of Leah, which she bare unto Jacob, went out to see the daughters of the land. And when Schechem, the son of Hamor the Hivite, prince of the country, saw her, he took her, and lay with her, and defiled her… And it came to pass… that two of the sons of Jacob, Simeon and Levi, Dinah’s brethren, took each men his sword and came upon the city boldly and slew all the males,” Schechem and Hamor included. Taken to task by Jacob their father, who feared the possible consequences, the two retorted: “Should he deal with our sister as with a harlot?”

With the shift to more settled societies, things gradually changed. The more hierarchical, strongly governed and policed a community, the greater the pressure on women’s male relatives not to resort to self-justice but leave the task of apprehending, judging and punishing the perpetrator to the authorities. However, progress in this direction tended to be slow. As late as the nineteenth century European women, for fear of being harassed and attacked, were strongly advised not to travel on their own. By one story, those of them who did so by rail were told to put needles in their mouths to prevent strangers from kissing them while the train was passing through dark tunnels. The higher women’s own social rank and that of their relatives, the more true this was. In less developed countries women who travelled often disguised themselves as men, as the British explorer Gertrude Bell did.

Nor is the change by any means complete even today. In her 1998 book, Desert Flower, former supermodel and U.N special ambassador Waris Dirie recounts how, during her youth in her native Somalia, she was threatened with sexual assault. In response, her father—the same, incidentally, who insisted that she should be circumcised—went about armed with a knife. As, on pain of his honor and following a centuries- if not millennia-old tradition, he was supposed to do. Two decades later there still is no shortage of countries where powerful but thoroughly disciplined (disciplined, also in the sense that their members will not themselves turn into rapists) police forces do not exist. By default, it is women’s male relatives who are entrusted with the task of protecting them.

The protection women demand, however, will come at a price. To obtain it a woman must, as far as possible, be sequestered and kept within the home. Even if that means she cannot work or go to school. If she goes out nevertheless she must not only be chaperoned but dressed in such a way as to conceal her, as far as possible, from prying male eyes. Her freedom to communicate with the opposite sex must also be limited—because, unless it is, her male relatives, trying to save her from being raped, are going to get a knife between their ribs or a bullet into their backs. These facts go a long way to explain, and to some extent justify, the way Islamic societies, many of which remain tribal in spite of the recent move towards urbanization, treat their womenfolk. Including, among other things, the recently lifted Saudi ban on driving.

And the future? Starting in the late eighteenth century when the first modern police forces were set up in countries such as France, there has been a strong trend to abolish the right to self-defense. To the point that, if one catches a burglar and injures him during the subsequent struggle, one may well end up by being prosecuted.

There is, however, no guarantee that the trend will continue. Take Europe. Owing to a combination of modernity and a dense population, it has long been perhaps the most strongly-policed continent of all. Now, however, the presence of large numbers of immigrants has created enclaves where the police is afraid to go. The enclaves are inhabited by populations whose ideas concerning what is and is not allowable, is and is not desirable, in relations between men and women differ sharply from those of the native majority.

Even in Germany, the country which a century ago gave rise to the so-called FKP (Freie Korper Kultur, aka nudism), that movement is now on the retreat. As I myself, having visited the lakes of Potsdam every year over the last eighteen years, can testify. There was a time when many people went swimming naked; now it is mostly old people who do. And they seem to be dying out. Meanwhile more and more parents are warning their daughters to avoid going out at night, visit dark and lonely places, and the like. With good reason, let me add. Separate swimming classes, separate taxis, and separate hotel floors are gaining in popularity. Social change is driving fear of rape, and fear of rape is driving social change.

How far these changes will go, and where they will lead, no one knows. Back to the burqa, perhaps? If so, don’t be surprised.

Cowards

As my readers know, I do not normally use this blog to quote other people at any length. If I do so this time, that is because I am shocked. Right from the beginning of human history—possibly even before human history, properly speaking, got under way—one of men’s most important tasks has always been to protect their mothers, sisters, wives, daughters, and women in general from being raped by other men. Even at the cost of their lives, if necessary.

No longer. So weak, so utterly despicable, have European men in particular become, that they have abrogated this responsibility, perhaps the most basic any human community owes the fifty percent of its members who are female and on whom its future depends. More basic than equality, more basic than any other number of nice things I could think about. I quote from a recent book on this and related topics.*

“Throughout the 2000s, the question of sex attacks on local women by gangs of immigrants had been an open secret [in Britain]. It was something nobody wanted to speak or hear about. There was something so base, and so rank somehow, in even mentioning it. Even to imply that dark-skinned men had a penchant for abusing white women seemed to so clearly originate from some odious, racist text that it appeared impossible, firstly even to even imagine that it might be happening, and secondly that it should be discussed. British officials were so terrified about even mentioning such crimes that every single arm of the state failed to respond over the course of years. When the same phenomena occurred on the continent precisely the same problems were encountered.

Even to mention the fact in 2015 that most of the recent arrivals into Europe seemed to be young [and single, MvC] men was to court opprobrium. To question whether all these individuals might have brought modern views about women with them was unmentionable (precisely, as in Britain, because it seemed to speak to some base, racist smear). The fear of falling into a racial cliché or suffering accusations of racism prevented authorities and the European public from admitting to a problem that had spread across the continent. And the more refugees a country took in, the greater that problem became.

Even in 2014 in Germany the number of sexual assaults against women and boys was growing. These included the rape of a 20-year old German woman in Munich by a 30-year old Somali asylum seeker, the rape of a 55-year old woman in Dresden by a 30-year old Moroccan, the attempted rape of a 21-year old German woman in Munich by a 25-year old Senegalese asylum seeker, the rape of a 17-year old girl in Straubing by a 21-year old Iraqi asylum seekers, the rape of a 21-year old German woman near Stuttgart by two Afghan asylum seekers, and the rape of a 25-year old German woman in Stralsund by a 28-year old Eritrean asylum seeker. While these and many other cases made it to court, many others did not.

Alongside the growth in cases of rapes of Germans came the increase in the number of rapes and sexual assaults in refugee shelters. During 2015 the German government was so short of to house the migrants that it was initially unable to provide segregated shelters for women. A [The outcome was rapes] across Bavaria. And as in Britain a decade before, the authorities were so worried about the implications of the fact that in a number of cases they were found to have deliberately covered them up. In Demold, where an asylum seeker raped a 13-year old Muslim girl, the local police remained silent about the assault. An investigation by Westfalen-Blatt claimed that local police were routinely covering up sex assaults involving migrants in case it gave ammunition to criticisms of the government’s open door policies. Nevertheless, rapes of children were reported in numerous cases, including at a facility in Bremen.

As the number of cases increased throughout 2015, the German authorities eventually could not hold back the growing number of reports of rapes against German women by recent refugees. These included the rape of a 16-year old girl in Mering, an 18-year old girl in Hamm, a 14-year old boy in Heilbronn and a 20-year old woman in Karlsruhe. In a number of cases.—including the case in Karlsruhe—the police remained silent about the story until a local paper broke it. Countless other assaults and rapes were reported in Dresden, Reinbach, Bad Kreuznach, Ansbach, Hanau, Dortmund, Kassel, Hanover, Siegen, Rinteln, Moenchengladbach, Chemnitz, Stuttgart, and other cities across the country

Eventually, this unmentionable subject became so bad that in September 2015 officials in Bavaria began to warn local parents to ensure their daughters did not wear any revealing clothing in public. ‘Revealing tops or blouses, short shorts or miniskirts could lead to misunderstandings,’ one letter to locals warned. In some Bavarian towns, including Mering, police warned parents not to allow their children to go outside alone. Local women were advised not to walk to the railway station unaccompanied. On a daily basis from 2015 onwards there were reports of rapes on German streets, in communal buildings, public swimming baths, and many other locations. Similar events were reported in Austria, Sweden and elsewhere. But everywhere the subject of rape remained underground, covered up by the authorities and deemed by most of the European media not to be a respectable news story…

Throughout 2016 the spate of rape and sexual assaults spread to every single one of Germany’s sixteen federal states. There were attacks literally every day, with most of the perpetrators never found. According to the [Social Democratic, MvC] Minister of Justice, Heiko Maas, just a tenth of rapes in Germany are reported and of those that reach trial only 8 percent result in a conviction. Moreover, several additional problems emerged from these cases, not least that there appeared to be a concerted official effort to suppress data about crimes where the suspects might be migrants… Just as in Britain a decade earlier, it transpired that German ‘anti-racism’ groups had been involved. In this case they had pressured the German police to remove racial identifiers from al suspect appeals for risk of ‘stigmatizing’ whole groups of people.”

The outcome? In Bavaria alone the number of rapes, many of them committed by refugees, during the first half of 2017 increased 48 percent over the corresponding period in the previous year. The equivalent figure for Britain is 19 percent. In London’s borough Tower Hamlets, said to have “one of the smallest White British populations of any local authority in Britain,” one poor girl was said to have been sexually assaulted three times in a single hour.

Cowards, cowards, cowards.

 

*D. Murray, The Strange Death of Europe, Kindle ed., 2016, locs. 3464-525

Guest Article: Negligent Rape

by

Jonathan Lewy

www.jonathanlewy.com

Criminal law rests on the basis of three pillars:

  • Nulla poena sine lege—no penalty without a law—is the short hand version of an aphorism ascribed to Anselm von Feuerbach, the author of the early 19th century Bavarian Penal Code. His aphorism remains the mainstay of criminal law to this very day. Retroactive punishment is an anathema. It is almost inconceivable to imagine a person indicted and sentenced for a crime that was not written in a law book somewhere, sometime before the crime was committed. Common law crimes are but extinct. Even in England, it is well accepted that the law must be known; it must be written; and it must set standards for proper behavior before the act, rather than ex post facto.
  • Conviction of a crime requires proof of a criminal act and a guilty mind, or mens rea as it is known in Latin. The standard of conviction in a criminal court are supposedly strict: the guilty mind must reveal intent, recklessness or apathy. Save for the most serious actions, such as killing another person, lack of thought or negligence are insufficient for a conviction.
  • A person’s guilt must be proven beyond a reasonable doubt. Punishment is serious business, so much so that Jurists often claim that “it is better that ten guilty persons escape than that one innocent suffer.” To ensure this ideal, a person is presumed innocent until proven guilty and the burden of proof rests on the shoulders of the prosecution.

All three pillars crumble when it comes to rape, particularly date rapes. The law normally defines rape as “sexual relations with a person against that person’s will.” Some laws are more detailed, others less so. Some mention penises, vaginas and anuses, and others do not. In some jurisdictions, only women can be raped, in others men can be victims as well. Be that as it may, the fulcrum of all rape laws is consent, or the lack thereof.

In a court of law, the question how consent is proven must be answered. If the rape is violent, forensic evidence and common sense usually prevail. Resistance, bruises, and other marks can be used as proof for lack of consent. This simple picture is blurred when it comes to date rapes, when no physical evidence is available and all that remains are the testimonies of the defendant and his accuser. Perhaps supporting evidence and witnesses who were not privy to the act are also available, but rarely are they sufficient to prove lack of consent.

Suppose a man has sex with a woman without using force. She changes her mind after the fact. She might claim that the reasons leading to intercourse were not true expressions of her free will: the man was her boss, teacher or therapist and she felt compelled to do the deed; the man claimed he was a successful businessman when in fact he is a penniless pauper; she felt threatened even though no threat was expressed; or her mind was simply blank (normally due to being drunk). In other words, circumstances led to her loss of willing consent and the court must disregard it. She is asking the court to treat her as a child with limited responsibility, whose consent is meaningless. In point of fact, she is asking for retroactive justice: an assessment of her consent after the fact. If judges remained true to the law and its spirit, they would deny the request.

What is willing consent? Very few human actions are truly free. Circumstances always set limits to freedom; yet, when it comes to rape, courts set a high standard. A woman’s consent is not taken seriously if it falls under ‘understandable’ circumstances. These circumstances are not only objective conditions such as physical duress, treachery or extortion, but also include subjective feelings such as trauma and other mental states, or even her own actions. Experts flood the courts claiming that victims are often unaware that they had been raped. They claim that the trauma is so severe to the point that women are unsure about what had transpired, but the trauma itself could be used as evidence that rape had taken place. Once again, these experts violate the first pillar of criminal law, since what should matter in court is what happened at the scene of the crime, not the understanding of the events after the fact.

psa14n-1-webVictims are privileged. They are not held accountable for being drunk. On the contrary: the courts decided that the fact she drank alcohol means she could not give her consent, even though she had entered this state of mind willingly. Experts and activists tell us that it is never the victim’s fault. Yet, if the case were different, and a drunken person killed another, the prosecution would successfully claim that the killer entered the state of mind willingly, and that he should have taken into account that while under the influence his actions could be disastrous. Proving criminal intent would be immaterial in such a case. Defendants, therefore, are disadvantaged. They are held accountable in circumstances that victims are not. This fact is ignored because the victim should not be held to the same standard as the defendant. This is certainly true in most cases. However, in the current legal standard for rape, the actions of the accuser determine the mental state of the accused. By willingly detaching herself from her surroundings, she determines the mental state of the accused. How could he know that she is too drunk to consent? It stands to reason therefore that she should be held to the same standards as the accused.

Suppose another scenario: a man has sex with a woman, and she remains silent. She may or may not want it, but she had not given any indication either way. For all intents and purposes, the man has no guilty mind. He had no intention to rape the woman; he simply wanted to have sex and assumed the desire was mutual. He is neither reckless nor is he apathetic. Yet, courts have decided in the past that he should have actively sought her consent. In other words, the man had an ‘objective duty of care’ to ask before penetration. The fact that he did not explore the possibility she may not want sex makes him accountable. Jurists dub this low standard of mental state, or rather the lack of guilty mind, as negligence.

As noted above, save for extreme cases, negligence is insufficient for conviction in a criminal court. Rape is not governed by a negligence rule, though judges have accepted de facto negligence standards for rape convictions. Thus, rape shatters the second pillar of criminal law. No longer does a man have to be of guilty mind to be convicted of rape. In the past, one could have defined legal sexual intercourse as rape without a guilty mind. Nowadays, the courts have made it clear that even if there is no guilty mind, a conviction in a rape case is still possible if the woman has not consented. Considering that only the victim’s mind and thoughts determine her consent (rather than her actions), the thoughts and the guilty mind of the defendant are mostly irrelevant in today’s courts. In essence: the victim determines the guilty mind of the accused, even if she was willfully unaware of her surroundings and as a result was unable to give her consent willingly.

Finally, most date rapes boil down to ‘he said she said’ stories. Why should the court believe the accuser rather than the defendant? After all, the accused is innocent until proven guilty. Experts often claim that no woman would lie about being raped. This assumption is false. Women like men, have incentives to lie. One should assume these incentives are present in rape cases as well. Since false accusations are difficult to disprove, a reasonable doubt is ever present. The burden of proof that she is not lying, or that he is lying should be on the shoulders of the prosecution. This is a heavy burden, one that must be lifted beyond a reasonable doubt; and reason is always filled with doubts.

Suppose for a minute that the accusation is not false. Instead, it represents different perspectives of a situation. The accused never wanted to rape the woman, but the woman understood it as rape. What should the courts do? Since the defendant stands on trial for his own actions, his understanding of the situation is judged, not the victim’s. The court must determine his state of mind and his actions, not hers. The prosecution must prove that the defendant believed she had not consented to the act, rather than deal with her beliefs and actions. Yes, in light of the correct criminal approach, her deeds might speak louder than words if she had led him to think she wanted to have sex.

One must remember that a victim has no standing in a criminal court, and as long as this is the case, judges must treat defendants in rape cases just like they would treat other suspects. Will this mean that many defendants will be acquitted because of the stringent standards of proof? Yes, but that is exactly the purpose of the law. After all in a liberal legal system, it is better to set ten guilty men free, than have one innocent suffer.