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Date rape among the Lords

Get government out of the bedroom! So went the rallying cry of the movement to abolish public standards of sexual morality. It didn’t work out as planned. Like other traditional standards, customary sexual morality made it possible for people to live together and cooperate in stable productive ways without the intervention of public authority. If you do away with customary standards government is what’s left. So “getting out of the bedroom” has turned out to mean sex education for grade schoolers, AIDS prevention clinics in junior high school, and sexual harassment rules for everyone.

Not to mention legislation regarding the ever-expanding crime of rape. If you abolish standards that civilize sex and keep it in a human setting then—surprise!—force and fraud creep in, and irate or insecure women demand action. The House of Lords, for example, is considering a “date rape” bill that (says a hard-news story in a major paper) is intended to “tackle a macho ‘No does not always mean no’ culture” that features ‘attackers evading justice’ and women who are treated as “ ‘fair game’.”

It sounds like an issue people aren’t likely to deal with sensibly. And in fact the Lords are bogged down with the bill, with no solution in sight. The basic problem is that once force and fraud have become the only standards governing sexual behavior there’s no good way to deal with the issues. Did the woman object? Did she consent? Was she capable of consent? Does the man have to go through a procedure to resolve doubts? Were there circumstances that should create a presumption either way? If so, how much do you go into the details in court? Whose reasonableness applies—A reasonable woman’s? A reasonable man’s? The particular man, who might be from Borneo where they do it differently? And finally, how do you prove any of this, or even get the jury to understand the standards?

The “sexual revolution” was a collective decision that arm’s-length standards should govern the most intimate and emotion-laden human connection. It was an amazingly stupid decision, and now the lawyers are trying to pick up the pieces. Not surprisingly, they are failing.