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  • Recreating Victoria

    Posted by Shannon Love on September 23rd, 2004 (All posts by )

    Via Instapundit comes a link to a post on Balkinization that proposes to create “A new crime of “reckless sexual conduct…”.

    Basically, the idea is to prevent date rape and STD’s by making it a crime not to use a condom during a one-night stand. There are lot of practical and moral objections to such a law. I don’t think it has the hope of seeing the light of day but it is still a good example of a cultural and legal phenomenon that has been going on since the sexual revolution.

    A pattern has emerged in the way we treat the rules for sexual relationships: (1) We start with a traditional culture based rules which may or may not be strongly enforced by formal law. (2) The argument is advanced that the traditional rules are irrational, oppressive, no longer needed etc (3) Both culture and law are changed to destroy the culture based rules. (4) To the surprise of everyone except elderly grandmothers, the new rules have unanticipated negative consequences. (5) To address these consequences, new formal laws are created that bring us back to a state very much as in (1).

    In short, after destroying Victorianism culturally we recreate it in formal law. What was once enforced by the soft power of culture becomes enforced by the hard power of the state.

    (Sweeping Generalization Warning: This is a huge subject and I’m covering a lot of conceptual ground in a short space so don’t expect details.)

    Date-rape is a good example of this process.

    Traditional culture dealt with the problem of date-rape by trying to prevent situations were it might occur. Men and women were not allowed privacy together unless they were married. The enforcement of this rule was draconian. Women who voluntarily placed themselves alone with a man were simply not protected. The culture basically strung up warning tape across that path saying, “proceed at your own risk.”

    Traditionally, people had no choice but to adopt such a strategy. In the era before modern forensics proving rape in all but the most unambiguous circumstances was very difficult. This difficulty also explains the requirement in many cultures that for a woman to claim rape she must have struggled so violently that her attacker had to physically injure her in order to control her. Authorities and the community had no other means of proving a non-consensual act occurred.

    The 1960’s saw the rapid acceleration of a trend that began in the 1920’s. The cultural and legal prohibitions against sexual privacy for the unmarried were destroyed. By the mid-80’s, many begin to recognize date-rape as a phenomenon. A person, usually female, voluntarily enters a private space with another person, usually male, and gets raped. Even with modern forensics, it is often impossible to tell if a non-consensual act occurred. Worse, some rapes could well be accidental (for want of better word). The rapist might honestly not understand that the victim did not want sex or, one or both of the parties might be so intoxicated that they could not give or understand consent.

    Nobody wanted to return to days of no sexual privacy for the unmarried so to address the problem, several different solutions, all based in formal law were proposed: (1) The female was always right. If she said she was raped at any arbitrary point after the act, she was. (2) The “mother may I” strategy. Some colleges tried this idea of requiring explicit verbal consent before advancing to the next “base.” (3) Video recording all sexual encounters. (4) Now we have “if you don’t use a condom it is rape.”

    All these solutions seek to inject the power of the State into the most intimate of personal relationships. We are constructing an elaborate set of rules around momentary sexual encounters and then seeking to enforce those rules with the power of the State. It is robotic Victorianism, a Victorianism shorn of its human dimension.

    In the end, we end up where we began, trapped in an iron matrix of rules. Only this time, it is not social disapproval we face, but the violent power of the State.

    (Update: Looking at the ending paragraph I probably overstated the case that we end up where we started. We don’t. The pattern is less of a two-dimensional loop and more of a three-dimensional spiral. We end up with similar though often milder problems. In any case, change is inevitable and we must adapt both culture and law to the changes.)

    (cross posted at Shannon Love’s Blog

     

    9 Responses to “Recreating Victoria”

    1. Steven Den Beste Says:

      There has been a long term trend since the 1960’s in this area of law and jurisprudence. To my perhaps-biased eyes, it looks a lot like a concerted effort to criminalize ownership of a Y chromosome.

      When Y chromosomes are outlawed, only rapists will have Y chromosomes — by legal definition.

    2. Shannon Love Says:

      Steven Den Beste,

      Although most Feminist would violently disagree, I think that much traditional morality focused on controlling destructive masculine behavior. The mechanisms that evolved more often than not used females to accomplish the goal but the driving concern was violent or irresponsible behavior on the part of men.

      I think a lot the “criminalization of the Y-Chromosome” springs from the need to rebuild the restraints that traditional culture placed on men but this time using formal law.

    3. Ginny Says:

      This is another woman that agrees with Shannon.

      Society has spent thousands of years developing codes of chivalry and definitions of being a “man”–many of them designed to channel that old desire to kill one another into more useful channels (and thereby, of course, saving women a lot of grief). What they did to encumber women was less restrictive–though partially because we were, I suspect, less of a handful. Of course, it was men’s energy (and combativeness) that needed to be controlled. And, of course, keeping it in the banks, it roared with energy and propelled the dynamo of western civilization. As men stopped killing each other, they were able to spend their time more profitably building roads and inventing trains, exploring and discovering and thinking and, well, probably even writing.

      We’ve swept away, well some, of a civilization’s common sense and are surprised at what we found. In the sixties and seventies, we scoffed at all the old notions. But, today, with three daughters, I think those old pretty weak pieces of advice (like don’t get drunk on your first date, for God’s sake, and it isn’t a great idea to go to a stranger’s hotel room) had validity. Of course, those suggestions assumed that men were pretty rowdy, pretty aggressive, pretty hard to control (both by themselves and by women). And, of course, men were taught that a real man would never take advantage of a drunken woman, would never take advantage, indeed, of naivete.

    4. Shannon Love Says:

      Ginny,

      One of the problems I see with a lot of the cultural attitudes about masculinity as portrayed in popular culture is the idea that men are chronically immature, impulsive, driven by base desire etc. There seems to be the expectation that men will not restrain themselves whether the desire is sexual, gastronomic or technological. I worry about the image of masculinity that my son gets. How will these ideas affect his self-restraint when he is older?

      Masculinity used to be all about self-restraint. Men were trained not to give into emotion, to view themselves as providers and protectors, and to tend to their responsibilities first and foremost. The traditional male archetype might have been a dominating jerk but he was responsible dominating jerk.

      I think traditional culture spent so much time training men up that way because men who did not think of themselves in such a manner became major problems.

      I can’t think that generation of men trained since childhood to consider themselves creatures of impulse will make for a safe date.

    5. Ginny Says:

      Shannon,
      I can say that more than once I’ve been thankful I only had daughters. For instance, my children brought home from school a note addressed about the “boys and ladies” in the class. I wrote a nasty note back, but this reflected the fact that the school didn’t respect the boys, didn’t see becoming gentleman as the way to model behavior.

      One of my husband’s specialties is men’s studies – Victorian. I do think they had a sense of both what could be destructive about human nature and how it could become, still being itself, something quite good.

    6. Patch Adams Says:

      While I certainly don’t want to see this sort of thing sorted out via the intervention of the state, it is worth noting that in some instances the social or informal constraints placed on men, as oultined above, could have indirect consequences that furthered the oppression of women. If social norms merely constrained men from exercising the baser aspects of their nature, that would be one thing. But there is to some an extent an equal and opposite reaction, often with negative consequences, as regards women.

      I’m reminded of the time I was in a mosque in Cairo. My host explained to me that the men stood in front of the women during prayer because if it was the other way around, the men’s thoughts would not fully be on Allah. That’s all good and well, and if that helps with the devotion of the followers, great, but I certainly can see how that might contribute to a worldview that holds women inferior as a consequence, intended or not.

      Leaving the issue at the social level, however, and perhaps prompting a dialogue might engender some kind of informal change in attitude, or perhaps attitude shift in society. Because I definitely don’t want to be thrown in the hoosegow and labelled a rapist because I got liquored, had a one night stand, and forgot to use a condom. (Although if my college efforts at attempting to get liquored and have one night stands is anything to go by, I’d have nothing to worry about.)

    7. Ken Says:

      An interesting conundrum. Law, or society, has to enforce some rules against being alone with a guy and some restrictions on consensual sexual conduct, or else neither law nor society can enforce the really important law against rape.

      With most good laws, it’s easy to prove that someone was harmed. Either there’s a body, or someone’s gone missing, or someone’s property has gone missing, or someone’s got some injuries that were clearly caused by human attack, or something along those lines. Usually, if you can’t find someone who you can prove has been harmed, that a good sign that the law ought to be junked.

      Except in the case of “date rape”. The act is exactly the same as consensual sex, except that it was done over the objection of one of the participants; all forensic evidence is identical in both cases, but only one is (or should be) a crime. And of course, in the overwhelming majority of cases, there are no witnesses other than the two participants, one of whom will lie.

      In programming, you often come across a piece of code that does not appear to belong there; careful examination reveals not the slightest clue what it’s doing there. And then, when you remove it or change it, the whole application breaks, which sometimes lets you know what its ultimate purpose was.

      So it is with the rules of society. They are rarely commented, and over time the people that remember what they’re for die without telling anyone. Then we remove them, and find weird stuff breaking, and discover again what they’re for.

      Not that we should just leave well enough alone forever. Sometimes, you have to break the code, and rewrite it the right way, in order to improve the app or add functionality, or fix whatever problem motivated you to dig into the source code in the first place. And some rules of society clearly need to be discarded, and other solutions for whatever purpose they were serving found.

      The rape problem is a side effect of privacy, which is itself a work-around for the phenomenon of ever-expanding government. If you limit the ability of the government to see what people are up to, you limit its ability to enforce laws that never should be written in the first place. Unfortunately, there are a few laws (such as those against date-rapeO) that should be enforced that can’t be properly enforced in the presence of strong privacy rights. Better lie detectors would be a good patch to add here, once they come into existence. Other than that, I can’t think of a good solution.

    8. Ginny Says:

      Lie detectors? In these cases, don’t you believe each believes the memory they have is the truth, but those memories are clouded. Accompanied by alcohol, drugs, or some other distracting factor, neither remembers clearly. The man may well have even believed some girls say no when they mean yes, as well as in the heat of the moment, men usually aren’t great listeners. The woman may have morning-after regrets and perhaps a sense that this might have consequences in her other relationships, wanting to believe she was not carried away by her own passions and can, therefore, become the victim and so guiltless.

      I’m not saying that date rape doesn’t happen – it does. And often. But prevention and holding both parties responsible would reduce those rapes better than litigation.

      Prevention includes teaching men that being a man includes a lot of duty and renunciation and teaching women that being a woman includes a lot of self-respect and discretion. Both need to try to understand human nature rather than assuming that men are, as Shannon puts it, “chronically immature, impulsive, driven by base desire etc” They don’t have to be.

    9. Bert Says:

      Call me a macho if you will, but any woman that goes to a hotel room or the like, alone with a man, being previously flirting…should know what she’s in for. I can’t understand why people -regardless of gender- can’t see that. It’s so basic. Maybe the PC frame of mind won’t let them.