Just when you think you’ve read every stupid thing that someone could possibly say about rape, your husband goes and sends you this: NSW, Australia, is working on a law that states rape when a rapist is drunk is still rape, and rape when the victim is drunk is still rape. Which is, of course, excellent. What’s not so excellent is the reaction to it. And no, I’m not talking about the reaction at Fark (Trigger warning: please, don’t read that Fark thread unless you have the world’s largest stomach for misogyny and rape apologism. Just . . . don’t.). I’m talking about the reaction by the NSW Bar Association. Get those rape apologist bingo cards ready, cause the squares are gonna get called fast.
The NSW Bar Associations reckons the “No means no” law goes too far and will lobby Upper House members to vote against it when it is up for debate next week.
The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.
It will also introduce an “objective fault test”, meaning a man can no longer use the defence that he thought he had consent if the circumstances appear unreasonable.
“It will turn our sons into criminals,” new Bar Association president Anna Katzmann SC said yesterday.
“For years women have been insisting ‘No’ means ‘No’. What troubles us about this new legislation is that it introduces a new regime where ‘Yes’ may mean ‘No’.”
Ms Katzmann gave the example of a woman on a first date who might not want to have sex but after both she and the man had drunk too much said “Yes”.
The next day she feels guilty and tells her mother, who goes to the police.
“That would be rape under the new laws,” Ms Katzmann said. “The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.”
Chair of the Bar Association’s criminal law committee Stephen Odgers SC said the law made sexual assault a crime of negligence.
“The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse,” Mr Odgers said.
. . .
So, Ms. Katzmann. I really don’t know how to break this to you gently, but it must be said: if this law turns your son into a rapist, your son is already a fucking rapist. And his ass deserves to be in jail, and you are an utterly irresponsible person, not to mention an utterly irresponsible lawyer, to suggest otherwise. And when I use the word “irresponsible,” it’s because I’m really biting my tongue.
To be clear, the situation that Ms. Katzmann outlines would not be rape under the new laws, at least not as she describes it. Two drunk people having sex is not rape. The situations she describes would be rape, if, say, the man kept feeding the woman drinks when she said “no” until she said “yes.” Or, if the man kept pestering the drunk woman and harassing her until she said yes under duress. Or, if the woman was slipping in and out of consciousness and didn’t know what she was saying “yes” to, or if the woman simply failed to say “no” because she was so drunk, that would be rape. But what Ms. Katzmann outlines certainly would not. Two drunk people having consensual sex and one regretting it the next day is not rape, nor has it ever been rape, nor would it be rape under these new laws, nor has anyone ever suggested that it might be considered rape — except for the rape apologists who use it as a scare tactic.
As for “The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.”: well Halle-fucking-lujah! It only took us how many millenniums to get that one down? And now there are still some asshats fighting it?
The fact of the matter is that this law A. says that being drunk is not an excuse to rape and B. “well, she didn’t say no” is no longer a legally acceptable defense. Basically, it is requiring affirmative consent to sex — which should have always been the standard, but almost universally still is not.
As for Mr. “The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse” Odgers . . . I am a person who believes in non-violence, but in reality has a short fuse. I don’t exactly make a habit of hitting people, but let me just say that Mr. Odgers is pretty fucking lucky that he’s not standing next to me right now.
But for those who still don’t get it, let me spell it out: the stupid, the negligent, the intoxicated, and (in very many cases, but certainly not always) the crazy are the true rapists. In fact, they are most rapists. Of course, we have to take into account that what Mr. Odgers is implying is “negligent” is very different from what sane people would call “negligent.” Personally, I would not define “failing to make sure you have obtained consent before you fuck somebody” as “negligence.” But I’m about 99.9% sure that Mr. Odgers would. If he doesn’t, I have absolutely no clue what else he could possibly mean.
Has anyone else noticed that we still convict murderers when they are drunk at the time of killing? As we well should. But, wait, that’s right — rape is different. Rape is just about claiming forced sexual access to a woman’s body. No harm done, right? We wouldn’t want to lock up “our sons” for something as trivial as that, now would we?
Let me just say that, no, I don’t have a son. If I did, and he was a rapist, I would certainly hope that I’d want him in jail. I do have two brothers, and I’m protective of them both. But if one of them raped someone and it’s up to me, it’s goodbye, off to prison for them, and don’t expect a fucking visit. Same with my husband, or my father, or any other male I know or have ever met.
What, exactly, is wrong with people?
Thank god, though, that all people (and for that matter, it’s important to note, not all men) are so incredibly fucked in the head:
Opposition attorney general, former Crown prosecutor Greg Smith, said the Attorney-General John Hatzistergos needed to spell out the law better.
Mr Hatzistergos said the introduction of an objective fault test was canvassed during the State Government’s exhaustive consultation process and had wide support, including police and the Rape Crisis Centre.
“Although Mr Odgers might like to draw a distinction between the stupid or drunk rapist and normal rapists, for rape victims they’re categories that don’t matter,” he said.
“If a person is drunk it does not automatically mean that consent can’t be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.
“It’s difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn’t negate consent.”
Mr. Hatzistergos sure as hell seems incredibly reasonable, highly pragmatic and certainly not on a rampage to lock up innocent “sons.” Thank you for that, Mr. Hatzistergos. Really, you shouldn’t have to thank someone for having integrity and a conscience — but apparently, you do.
For the record, I lived in Sydney, which is in NSW, for three years. My husband lived there most of his life. We both have a lot of happiness and pride that the legislature would put forth a bill like this. And we’re both incredibly horrified and ashamed that this kind of reaction would exist.
I will try to keep abreast of this story, and when there are updates, I will definitely blog about them.