EDITORIAL THURSDAY 23.07.09.
The suggestion by a South Australian judge that there is a difference between a rape and a “technical” rape has triggered a savage backlash. The case in question involved a man who had met a woman at a pub. Both were drinking. Both were intoxicated. They agreed to have sex in a nearby park, and went off to do so. Unfortunately, the woman fell asleep during the process, but the man continued on anyway. The judge indicated that he believed that the offender had not done anything to which the victim would not have consented had she remained conscious.
While it is possible to understand that the judge is attempting to make a distinction between this event and other more violent forms of sexual assault, the fact remains that any decent person would believe that continuing on when a woman has become unconscious is just not right, regardless of the law and any issues of consent. In fact the law itself makes the distinction that an unconscious person is not capable of giving consent, and therefore the act is illegal.
Whether or not the judge is in error, this case does raise the question of whether there are degrees of rape, or even degrees of guilt. Is it not reasonable to recognize a distinction between the violence of what is commonly understood to be a rape, and the less clear situation of misunderstandings, miscommunications and just bad judgment? People do get themselves into awkward situations without necessarily having malicious intent, and isn’t intent itself a component in any crime that might be committed?
It could be argued that in this case, consent had already been given, the green light had already been signaled, and the drunken decision by the man was not much more than an unfortunate misjudgment. In fact, that appears to be what the judge is suggesting. However, that fails to take into account that there clearly has been an issue over consent evidenced by the simple fact that not only have charges been laid, but the man himself has pleaded guilty. Even he knows that what he did was wrong.
The judge is right to point out that there are serious consequences to being labeled for the rest of your life as a convicted rapist. But there is every reason for there to be serious consequences. That’s the whole point. When we do something wrong, we are supposed to end up in trouble. We are supposed to pay the penalty. It is supposed to be the job of the judge to determine that penalty, according to the law, and in line with community expectations. In this case, the judge seems to be questioning both.