Galloway on Rape and Law’s Own Repugnant Diatribe

This was originally published today on Critical Legal Thinking.

On August 18^th, the you­tube chan­nel ‘molucca Red,’ ‘[t]he only fully author­ised GG chan­nel,’ pos­ted ‘Good night with George Gal­lo­way (Epis­ode 5).’ This epis­ode fea­tured Gal­lo­way dis­cuss­ing vari­ous issues relat­ing to the Wikileaks founder Jul­lian Assange. In watch­ing the epis­ode, espe­cially at around 21:15 into the video, the viewer may be for­given for begin­ning to feel slightly naus­eous (if this did not occur before). Indeed, the nauseous-ness of many media out­lets and com­ment­at­ors has been expressed vehe­mently over the last week or so.

For it is at this point that Gal­lo­way states some­thing which he knows will be ‘con­tro­ver­sial.’ Nev­er­the­less he jus­ti­fies the con­tro­versy by stat­ing that ‘some­body has to say this’ against the ‘reign of intel­lec­tual ter­ror’ which has ‘des­cen­ded upon this issue,’ ‘at least in Bri­tain’ and (he ‘sus­pects’) ‘else­where in the rest of the West­ern world.’ [1] What Gal­lo­way then moves onto dis­cuss are the sexual accus­a­tions made against Assange from the Swedish author­it­ies. His response to the spe­cific accus­a­tions made by ‘Woman A’ are what seem to have pro­voked a strong reac­tion (to say the least) against Galloway.

For it becomes clear that with regards to ‘Woman A,’ although Gal­lo­way con­demns Assange’s ‘sor­did’ and ‘dis­gust­ing’ sexual beha­viour, he ulti­mately states the fol­low­ing: that it is merely ‘really sor­did and bad sexual etiquette’ to pen­et­rate a woman whom one is already in bed with, whom one is already naked with and whom one has already pen­et­rated pre­vi­ously, without ask­ing for her con­sent, des­pite the fact she is asleep. This action, Gal­lo­way exclaims, can­not ‘con­sti­tute rape,’ for if it does, then it ‘bankrupt[s] the term rape of all mean­ing.’ Hence it is instead just a case of ‘really bad man­ners’: ‘it is not rape.’

It is to be noted that this con­tro­ver­sial opin­ion is clearly at polar oppos­ites to the 2011 (legal) opin­ion of the High Court on the sub­ject. For in their judge­ment on the European Arrest War­rant (EAW) filed against Assange and the charge of ‘count 4′ therein against ‘SW’ (the rape of ‘Woman A’ in ques­tion), they clearly state the fol­low­ing (at para­graph 109):

In our view on this basis, what was described in the EAW was rape. Coer­cion evid­ences know­ledge of a lack of con­sent and lack of a reas­on­able belief in con­sent. [2]

With this judge­ment a person’s nauseous-ness may sub­side. And there is seem­ingly good reason for it to do so. For what is made clear is that the High Court endorses the grounds of the EAW put for­ward by the Swedish author­it­ies, on the basis that it is clear that ‘exploit­ing’ someone in order to have sex with them is a crim­inal offence. Fur­ther, a per­son may be exploited as a res­ult of being in a ‘help­less state,’ such as ‘being asleep.’ [3]Hence, should Assange have pen­et­rated ‘Woman A’ (‘SW’ in the case), as per ‘count 4,’ when she was asleep, then this is indeed a crime.

It is at this point that the court then ref­er­ences the Sexual Offences Act 2003 of the crim­inal law of Eng­land and Wales because this piece of legis­la­tion deals pre­cisely with the issue at hand. This point needs explain­ing, as the court makes only a passing ref­er­ence to the act in order to jus­tify its point.

The court ref­er­ences s. 75 (2) of the 2003 Act which provides for cir­cum­stances which might arise in the act of ‘A’ pen­et­rat­ing ‘B.’ The act provides a legal mech­an­ism whereby should any of these cir­cum­stances be appar­ent and ‘A’ is aware of them, then it is pre­sumed that there is no con­sent on behalf of ‘B’ and that ‘A’ does not reas­on­ably believe that there is con­sent. These con­di­tions, coupled with the pen­et­rat­ive act, then con­sti­tute rape. This is rel­ev­ant to Assange’s accused actions because s. 75 (2) (d), provides for cir­cum­stances where…

the com­plain­ant was asleep or oth­er­wise uncon­scious at the time of the rel­ev­ant act.[4]

Indeed, this is pre­cisely the situ­ation of ‘count 4′ detailed in the court’s judge­ment (or, regard­ing ‘Woman A’ described by Gal­lo­way). Hence, as the court asserts, ‘she is to be taken not to have con­sen­ted to sexual inter­course.’ [5] Such an out­come is well noted in com­mon law, for there are numer­ous instances where the accused has been pro­sec­uted for enga­ging in inter­course (or sexual activ­ity) when the com­plain­ant in ques­tion was asleep. [6] This (fol­low­ing the 2003 Act) res­ults from the ‘evid­en­tial pre­sump­tion’ that there is no con­sent present in cer­tain cir­cum­stances and fur­ther, that the accused does not reas­on­ably believe that there is consent.

How­ever, it is at this point that nauseous-ness may return. For what has been detailed thus far is the ‘evid­en­tial pre­sump­tion‘ that there is no con­sent to sex when the com­plain­ant is asleep. Mean­while, Galloway’s crude and miso­gyn­istic fer­vour of the fact that ‘this is some­thing which can hap­pen, you know,’ seems to be recog­nised by the law as some­what of a legit­im­ate fact; in law. For in short, it is leg­ally pos­sible for a woman to con­sent to sex whilst she is uncon­scious or asleep. This point, as with the earlier points on s. 72 (2) (d), needs explain­ing further.

As has been stated it is only an ‘evid­en­tial pre­sump­tion’ that there is no con­sent given for inter­course when a woman is asleep. This means that the accused, ‘A,’ may offer evid­ence which rebuts this pre­sump­tion, and so estab­lishes that des­pite the fact that the com­plain­ant (vic­tim), ‘B,’ was asleep or uncon­scious, she was also con­sent­ing to sex. This point may be seen as dubi­ous and dif­fi­cult for a jury to find con­vin­cing, [7] but it non­ethe­less is per­mit­ted and encom­passed within the cur­rent crim­inal law of Eng­land and Wales.

This start­ling fact has not gone unre­cog­nised by crim­inal schol­ars and has faced fierce cri­ti­cism for tak­ing the law ‘back­wards rather than for­wards.’ [8] How­ever the point has also been made that the law could here be seen to be too over­bear­ing on sexual autonomy if it instead insisted that when a woman was asleep there could not be con­sent given for sexual inter­course (or indeed any sexual activ­ity). [9] In this instance what is objec­ted against is that the law, instead of enfor­cing an ‘evid­en­tial pre­sump­tion,’ s. 75 (2), rather enforces a ‘con­clus­ive pre­sump­tion’ that there was no con­sent, s. 76 (2). Cur­rently, the only cir­cum­stances which mean that there can­not be con­sent given are those where the vic­tim is deceived, inten­tion­ally by the accused, as to the nature or pur­pose of the act in ques­tion (s. 76 (2) (a)); or they are deceived, inten­tion­ally by the accused, as to whom is enga­ging in the act in ques­tion (in short, the accused imper­son­ates someone known per­son­ally to the defend­ant) (s. 76 (2) (b)). And so, as the law stands cur­rently, it remains that it is still leg­ally pos­sible for uncon­scious women to give con­sent to sex … somehow.

All this nauseous-ness brings us back to the mat­ter of Galloway’s rally against the ‘reign of intel­lec­tual ter­ror.’ Because as much as we are sickened, appalled and dis­gus­ted by what he is sug­gest­ing, it is clear that some­where, deep within the com­plex­it­ies of the Sexual Offences Act 2003, Galloway’s fes­ter­ing acknow­ledge­ment that ‘this is some­thing which can hap­pen, you know,’ finds a shred of valid­ity in law. Whether this reflects the law’s found­ing arkhē of a phal­lo­go­centric frame­work with regards to the law sur­round­ing rape[10] or a hes­it­ancy to legis­late against a fierce lib­eral tra­di­tion of autonomy, it sadly sig­nals that although the High Court’s rul­ing is cer­tain with regards to ‘count 4′ against Assange, other instances of ‘count 4′ may not receive the same rul­ing. And this will always be to the det­ri­ment of the vic­tim through what is still a phal­lo­go­centric (‘the com­pli­city of West­ern meta­phys­ics with a notion of male first­ness’) [11] con­struc­tion of the law of rape.

So if we are appalled by Galloway’s remark then we are also to be appalled at the state of the law as it stands. For its grasp over a woman’s legal (and sexual) sub­jectiv­ity is one which leaves a lot of ques­tions unanswered. It once again pre­sup­poses cer­tain homo­gen­eous norms about how rela­tion­ships cre­ate cer­tain situ­ations for sexual inter­course to take place in, and in doing it opens up the pos­sib­il­ity for exploit­a­tion and viol­ence against those situ­ations which reside out­side of such norms. As much as Galloway’s chau­vin­ism may be dis­missed as one man’s archaic and repug­nant diatribe, it is not so easy to dis­miss the fact that the law still can per­mit the very same thing.

The trace which is there­fore left fol­low­ing the clas­si­fic­a­tion of being asleep or uncon­scious as an ‘evid­en­tial pre­sump­tion’ means that some­where, in cir­cum­stances of every­day people and their lives, the law has left it pos­sible for the accused to be acquit­ted of an accus­a­tion of rape because it is still leg­ally pos­sible for a sleep­ing woman to give con­sent to sex. As the philo­sopher Jacques Der­rida warned against, here law’s empire over women as legal (and sexual) sub­jects returns like a reven­ant, brought to light through Galloway’s vile comment:

[t]he effect of the Law is to build the struc­ture of the sub­ject, and as soon as you say, “Well, the woman is a sub­ject, and this sub­ject deserves equal rights,” and so on – then you are caught in the logic of phal­lo­go­centrism and you have rebuilt the empire of the Law. [12]

Notes

[2] [2011] EWHC 2849 (Admin – para 109.

[3] As above – para 115.

[4]Sexual Offences Act 2003, s. 75 (2) (d)

[5] [2011] EWHC 2849 (Admin) – para 118.

[6] R. v John­ston [2003] EWCA Crim 312, R. v Cic­carelli [2011] EWCA Crim 2665, Gar­vey [2004] EWCA Crim 2672, R. v Black­lock [2006] EWCA Crim 1740.

[7] Ormerod David, Smith and Hogan’s Crim­inal Law (13^th Edi­tion) Oxford Uni­ver­sity Press Oxford 2011 p. 726. See P [2009] EWCA Crim 1110 at para 29 for the judiciary’s doubt in the jury being con­vinced of con­sent being present.

[8] Temkin Jen­nifer and Ash­worth Andrew, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the prob­lems of con­sent’ (2004) May Crim­inal Law Review 328 at 337. See gen­er­ally 337 – 338 for details of Temkin’s and Ashworth’s cri­ti­cisms on the 2003 Act regard­ing s. 75 (2) (d).

[9] Ormerod above note 7, at p. 729: ‘[f]or example, A, who per­forms a rel­ev­ant sexual act … on his sleep­ing part­ner as a ges­ture of intim­acy to wake her, ought not to be con­clus­ively pre­sumed guilty.’

[10] Hale Mat­thew The His­tory of the Pleas of the Crown In the Savoy Prin­ted by Nutt E and R and Gos­ling R Lon­don 1736. See p. 629 espe­cially: ‘[b]ut the hus­band can­not be guilty of a rape com­mit­ted by him­self upon his law­ful wife, for by their mutual mat­ri­mo­nial con­sent and con­tract the wife hath given her­self up in this kind unto her hus­band which she can­not retract.’ This quote ensured that for 250 years, until 1991 and the case ofR. v R [1992] 1 A.C. 599; (1992) 94 Cr. App. R. 216, that a hus­band could not rape his wife.

[11] Der­rida Jacques, McDon­ald Christie V. ‘Cho­reo­graph­ies’ trans. Christie V. McDon­ald in (ed) Weber Elisa­beth Points… Inter­views, 1974 -1994 Stan­ford Uni­ver­sity Press Stan­ford Cali­for­nia 1995 p 89 at 96.

[12] Der­rida Jacques, Adner James, Doyle Kate and Hend­ler Glenn ‘Women in the Bee­hive: A Sem­inar with Jacques Der­rida’ trans. James Adner (2005) 16.3 dif­fer­ences 139 at 149.

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• Galloway on Rape and Law’s Own Repugnant Diatribe - August 24, 2012