No Escape

Of Saint Augustine it used to be said that anyone who claimed to have read everything he wrote was lying. The same is true of Philip Roth. I do not claim to have read everything he has written. But I have read pretty much, and each time I add another volume I am astonished at how good a writer he really is.

The Dying Animal, the book I want to discuss today, just fell into my hands by accident. Published as long ago as 2001, it is as fresh today as it was then. The basic story is simple. The life of the protagonist, David Kepesh, has been described in some of Roth’s previous books. Now he is a moderately well-known art critic in New York. He appears on local TV and radio on a regular basis and teaches a class in “creative criticism.” Needless to say, most of his students are young women. Each year he immediately notices the one he wants. There are, however, any number of spoilsports around. That is why he waits until the course is over and all the grades have been handed out. At that point he invites the students to a party at his home, and the mating game can get under way.

Her name is Consuela Castillo. She is twenty-four to his sixty-two. As Roth is careful to point out, the attraction is mutual. He is attracted to her reverence for him as well as her beauty. Especially the erect way she carries herself (she is Cuban, and very proud) and her “powerful” breasts. The latter she is careful to put on show by keeping the upper three buttons of her blouse open. She is attracted to the courteous way he treats her, his relative renown, and his culture. In addition to being a literary critic he plays the piano, albeit not too well. So different from men of her own age who “masturbate” on her body, as she puts it.

Some feminist critics, desperately jealous of their younger “sisters,” have denounced Roth and his protagonist as typical male chauvinist pigs. For the benefit of any members of that extraordinary breed—feminists—who may be reading these lines, let me emphasize: Consuela is not an innocent victim. She has slept with men before. Even as she sleeps with David she also sleeps with others, including two brothers. She is neither too stupid to understand what is going on nor, as we soon learn, too weak to say no. In fact it is hard to say who, David or Consuela, leads the other in the minuet that slowly, inevitably, takes them to bed. By presenting Consuela as if she were an unwitting ninny, the critics in question do her a much greater injustice than David ever did. If, indeed, he did her any injustice at all.

In fact it is Kepesh, much the older of the two and very much aware of approaching death even when they are making love, who holds the weaker cards. She can throw him out at any time. A year and a half into their affair, when he refuses to join a party her family is throwing in which he would have to pretend he is nothing to her but a kindly old teacher, that is just what she does.

The loss of Consuela sends David into a depression that lasts for years. What we, the readers, get are his memories and his thoughts. About sex, that enormously powerful drive no one, young or old, can ignore. About nature which, for reasons of its own, has made men basically polygamous (marriage kills sex, is what Roth says not only in this volume but in several others as well). About nature which, again for reasons of its own, has made women want nothing as much as children, which of course implies a long-term, stable, relationship even if, over time, it becomes sexless. About the man—David’s son—who, trapped into a marriage he hates, takes a mistress and is crushed by the resulting burden of guilt. About another man who, trapped into a marriage he hates, escapes from it, only to quickly enter into another one just like it.

About the young woman (not Consuela) who, overwhelmed by the freedom modern contraceptives provide her with, uses it to do exercise her right of sleeping around with anyone she wants and ends up with serial divorce and a nervous breakdown. About the woman who, determined to do whatever it takes to have a good career, attains that goal—only to discover that she is past the age at which one can fall deeply, deeply in love and that what she really wants, i.e. a family and children, is beyond her reach. About the childless couple who call five times a day so as to forget that, in reality, they have nothing to say to one another. And about the man and the woman, both of them unattached and independent and mature people, who are looking for a “pure” relationship based exclusively on free will and mutual attraction. Only to discover that time creates its own obligations and that such a relationship does not exist.

Another six and a half years have passed. David is seventy now. All of a sudden Consuela reenters his life. She is thirty-two, a young woman in the prime of life. Even better looking than before. But she has cancer. One of those glorious breasts is going to be cut off, and she worries no man will ever love her again. Besides, her chances of survival are just sixty percent. Of course she is terrified. Most of her immediate relatives having died, she turns—where else?—not to any of the young men she has slept with. But to the one man who, though he is no longer sexually attracted to her, she knows she can trust. Absolutely and unconditionally. She asks David to photograph those magnificent breasts of hers from every side and angle, which he obligingly does. Next thing he knows, she calls him. In the middle of the night. She needs him right by her side. And he knows that, if he goes, he will be “finished.”

Roth is too good a writer to tell us the outcome of all this. But the moral, I think, is clear. However much we may twist and turn, and however much feminists may rant and rave, neither men nor women can escape from what nature has made them.a

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.

Why Freud Got It Wrong

Freud got it wrong. The strongest drive that rules the species of homo which has the impudence to call itself sapiens is not sex. It is the urge to shut up those with whom one disagrees. Here are some examples, all taken from supposedly liberal, supposedly democratic, countries. In Australia, the government tried to impose draconian restrictions on its citizen’s access to various kinds of material on the Net. It was even been polite enough to ask the US for its approval (approval, thank goodness, was not given). In Canada, a newspaper editor who republished those famous Danish cartoons of the prophet Muhammad was summoned to explain himself before a government committee.

But it is not only the left which tries to dictate to people how to think. In France under Chirac and Sarkozy, teachers and professors who believe that French colonialism was an evil thing and did not help those who were subject to it in their march towards liberté, égalité and and fraternité were threatened with sanctions. In Britain, attempts were made to prevent a Dutch member of parliament who believes that the Koran is evil from entering the country. No surprise, that; in recent years, each time an Arab or Islamist has farted the British have wetted their pants.

In Germany some years ago, the geniuses at the Bundesministerium for Family and Youth tried to ban a children’s book. The author was Michael Schmidt-Salomon; the title, Where Can I find the Way to God, Please? Asked the Little Piglet. It attacked bishops, kadis and rabbis, presenting them all as rogues out to swindle people. If those people rejected the confidence trick, violence might ensue. On this occasion the High Constitutional Court, to its credit, denied the Ministry’s request.

And how about the US? In the self-proclaimed “land of the free” the situation is no better than anywhere else. In the media, in political life, even in sports and entertainment, anyone who utters a word that could possibly be constructed or mis-constructed as “racist” or “sexist” risks losing everything. The redoubtable Ann Coulter, who had seven conservatively-oriented books on the New York Times best seller list, has even engaged on a regular witch-hunt against what she pleases to call “liberal” professors. She encourages students to spy on them, exposes their alleged thoughtcrimes, and demands that they be fired; all while calling them by their names.

And how did the universities react to the assault? For centuries past, an essential part of their mission has been to defend freedom of thought. Yet in- and out of the US most universities, coming under the steamroller of political correctness, have long started sawing off the branch on which they sit. For daring to suggest that, in his view and as much research indicates, women may not have the same innate ability at mathematics as men, do, Larry Summers, president of Harvard University and a former secretary of the treasury under Clinton, lost his job.

As Voltaire once said, “I do not agree with a word you utter; but I will fight to the death for you right to do so.” As he also said, most philosophers are cowards. As Alan Kors and Harvey Silvergate in their book, The Shadow University, showed, many American universities regularly open the academic year by extensively briefing students on what they are, and are not, allowed to say. Those who, advertently or not, overstep the guidelines are persecuted and prosecuted. Often this is done in complete violation of the most basic rules that are supposed to govern a fair trial. So bad have things become that there now exist several organizations whose sole mission in life is to defend students’—and professors’—constitutionally-guaranteed freedom of speech against the universities where they study or teach.

Restrictions on freedom of thought and speech are, of course, nothing new. During most of history they were imposed either by dictatorial governments or by priests who, often working hand in hand with those governments, did not want anybody to question the hold religion gave them over society. For two centuries after the American and French Revolutions the West, to the extent that it did not turn either Communist or Fascist, took justified pride in the fact that it had done away with censorship and cast off most of those restraints. It was even thought, with very good reason, that this freedom was one of the cardinal factors that made the West as successful as it was.

No longer. What distinguishes the last two decades from most of their predecessors is the fact that much of the pressure in this direction is exerted in countries that are supposedly democratic and free. It seems to come not from above but from below, i.e. society itself. Nowadays in most “advanced” countries whenever anybody says or writes anything, there is certain to be somebody else around who finds his words “inappropriate” or “offensive.” To return to America’s universities, in many of them things have now reached the point where only blacks may write dissertations about blacks, gays about gays, lesbians about lesbians, and so on. Objectivity, or at any rate the attempt to reach it, has been thrown overboard. Yet where objectivity is lacking any attempt to understand also necessarily comes to an end. Whenever the alleged offender is at all prominent, a demand for an apology is certain to follow. Often the apology itself is but a cover for greed as “compensation” is demanded and mandated. There has even come into being an entire class of lawyers who, cruising the law, spend their time looking for cases of this kind.

Many of the offenses against freedom of speech are committed in the name of minors. Supposedly they must be isolated from all kinds of “false” ideas. For example, that God does not exist; or that sex before marriage is not morally wrong; or that their teachers may sometimes mislead them; or whatever. Now radio is called the villain, now TV. Now video games are to blame, now the Net. Those in charge of these technical instruments and their contents ought to be restrained, silenced, and punished if necessary. Not that there is anything new in this. The need to “protect” the young has often been used to justify some of the worst crimes of all; look at the execution of Socrates 2,412 years ago.

Perhaps worst of all, little if any of this is written into positive law. Since nobody knows what is and is not permitted, those who still dare engage in non-mainstream discourse are forced to watch their every step. What remains tends to become repetitive and tepid. The end result is the endless repetition of meaningless clichés, what George Orwell in 1984 called duckspeak. Perhaps authoritarian figures such as Russia’s Putin have got it right after all. With them, at any rate, one knows where one stands.

Human All Too Human

M. L. Roberts, What Soldiers Do: Sex and the American GI in World War II France, Chicago, University of Chicago Press, 2013.

 

What alerted me to the existence of this book was a radio program to which I happened to listen one fine Saturday morning. The way it was presented, Mary Roberts, a professor of history at the University of Wisconsin, had caused a stir by drawing her readers’ attention to the sexual misbehavior of American troops in France during the period from June 1944 to VE Day. Another feminist tear-jerker about bad men abusing poor innocent women, I thought.

As it turned out, the book is anything but. In her introduction, Prof. Roberts dwells on the realistic premise that any attempt to understand the relationship between the United States and France as it developed after the Normandy landings cannot limit itself to high-level diplomatic exchanges alone. It should, instead, look at the way GIs—as many as four million of them, serving under General Eisenhower—interacted with the French population and the French population, with the GIs. The more so because those interactions both reflected and created the images both sides formed of each other; images which in turn were not without impact on high-level diplomatic exchanges and decisions. Speaking of interaction, the problem of sex neither can nor should be avoided. And it is on sex that Prof. Roberts trains her telescope.

The introduction apart, the book falls into three parts dealing with romance, prostitution and rape respectively. To start with romance, countless French women of all walks of life allowed themselves to be seduced by American soldiers. Unlike French men, humiliated by defeat and often all but penniless, the GIs were big, strong and healthy. In contrast to French men, some two million of whom were still in Germany, either locked up in prisoner of war camps or else working there, they were also available. What is more, the GIs were willing and able to supply French women with mundane but essential products such as food, chocolate, and, above all, cigarettes. Is it any wonder that romance, including the kind of romance that resulted in marriage, was rife? Other women, including some who had previously offered their services to the Germans, actively solicited GIs and slept with them on a more or less regular, more or less professional basis. The more time went on and the initial enthusiasm of liberation waned, the greater the tendency to put things on a businesslike, if often sordid, basis; in a sense, the whole of France was turned into a single gigantic brothel.

There also appear to have been numerous cases of rape. As I pointed out in my 1982 book, Fighting Power, the US Army executed far more of its soldiers for rape/murder than for desertion. Rape, however, is not as straightforward a concept as some feminists claim. Instead it has many different degrees. It starts with the kind of incident in which a soldier seizes some totally unknown woman, drags here into a dark alley, and uses violence to force her to have sex with him. It ends with a man and a woman, even such as have known each other for some time, spending an evening together. They flirt, dance and drink, after which the former becomes a little too insistent and the latter, a little more yielding than, having sobered up, she feels she should have been. In such cases the sex that takes place is often seen by one side sees as consensual and by other as forced. Throughout her book Prof. Roberts rightly emphasizes the enormous economic advantage even the lowliest GI enjoyed over most French people with whom he was in contact and whom the war had turned into beggars. Against this background, as well as the fact that most soldiers did not stay in one place but were constantly being transferred, no wonder the line between rape, prostitution and romance was often a fine one.

In exploring the relationship, the sexual relationship above all, between Americans and French, liberators and liberated, men and women, rich and poor, Prof. Roberts has done the literature a signal service. For American readers, perhaps the most interesting is the last chapter with its detailed exploration of the way the U.S Army and French public opinion collaborated in creating an image of black soldiers as hyper-sexualized savages and treating them accordingly. It is, unfortunately, necessary to mention three points that somewhat mar her otherwise excellent book. First, the author does not know much about military life and war, and its shows. As, for example, when she says that “an armored vision”—in reality, probably a tank or two—destroyed a French train. Second, the text is highly repetitive. Often the same episodes, even the same phrases, are found in more than one chapter.

Finally, a more systematic comparison with the situation during the four years of German occupation, by offering perspective, would have been useful. How did French women behave towards Wehrmacht soldiers, and vice versa? What role did the fact that the Germans came as occupiers and the Americans as liberators play? Did relations between French women and German soldiers differ from those they developed with American ones, and, if so, in what ways? How representative are the things that happened in France in 1944 of human behavior in similar situations? As things are, all we get is some tantalizing hints.

In this context I am struck by a memory which has been with me for thirty years or so. At some time around 1980 I was working at the West German Military Archive (Bundesarchiv/Militaerarchiv, BAMA for short) in Freiburg. I came across a document—I no longer have a clue as to who was addressing whom, and for what purpose—which said that American troops in France in the second half of 1944 raped more French women than German ones had during four years of occupation. Assuming the claim is true, there may be some kind of lesson there; though just what it is, is blowing in the wind.