tim's experiment

People who work on Law Reform Commission panels deserve our gratitude and respect. Poring over the law in search of deficiencies is painstaking, poorly rewarded and often frustrating, because the resulting suggestions too often languish unimplemented.  Having said which, such panels often seem to be in danger of a problem known in anthropological circles as the Firehouse Effect, because it was first identified in studies of American fire fighters. What happens is that a group of people meet over and over again, discuss matters endlessly with each other, and gradually diverge from the mainstream until their conclusions become outlandish, if not outrageous. With all due respect to the panel who have just produced some recommendations on sexual offences, I do think they should perhaps have got out more often. I realise that this particular topic is difficult to float as a theme for casual conversation, but still…

The recommendations, according to Tuesday’s newspapers, are supposed to make the law “gender neutral”. To this end the offence of rape will be extended to include oral and anal penetration as well as the traditional mode. I have two objections to this. The first is that rape is a highly emotive word and it is better to resist its extension as much as possible. No good is done to anyone by the extension of the label (in California) to cases where the woman was eager and willing but had had a few drinks, or its extension (in Sweden) to cases where the woman, having consented once, claims that in a second sitting she was half asleep. I do not suggest that oral or anal penetration without consent should be legal, but if the legislature wishes to make them an offence it should come up with a new label — Unlawful Penetration, or something — not confuse everyone by extending rape into areas it does not now cover.

My second objection is that the law cannot be made gender neutral if biology is not gender neutral. Rape is committed by a man on a woman because that is the only way the equipment works. You cannot put a bolt into a nut unless there is a nut. Being penetrated anally is I am sure extremely unpleasant. I did for a while suffer from a medical problem which required doctors from time to time to explore the passage concerned. Although this was of course with my consent I found it extremely humiliating and painful. I felt emotionally bruised for hours afterwards. But painful though the sensation may be, the fact remains that people do not feel the same way about the anus as they do about the vagina. The vagina is the seat of the Love Goddess, the badge of womanhood and the cradle of new life. The anus is just an exhaust pipe. A man who is anally assaulted is also spared the agony of wondering if he has been impregnated. Consequently, it seems to me, the rape of a woman by a man is rightly considered in a class of its own and the pursuit of gender equality in this particular area is misguided. It also has odd consequences. Having decided to protect male anuses, the panel then had to come to the rescue of female ones. Having taken under its wing, as it were, two of the three orifices usually used for this kind of fun it then felt unable to leave out the third, so the mouth also becomes a potential rape site. I fear the panel has confused “distinctions based on sexual orientation”, which it rightly dislikes, with distinctions based on biology, which are necessary in some places.

These are matters on which honest people can no doubt disagree. I am not so sure about the panel’s views on photography, which seem to verge on lunacy. Apparently the panel considers it “unsatisfactory” that taking photographs of the view up ladies’ skirts (without their consent, I presume, though this point was not mentioned) was not in itself an offence. People caught in this deplorable hobby were perforce prosecuted for things like loitering. The panel proposes to solve this problem by making taking pictures a form of sexual assault. I’m sorry, but this is really stupid. Assault is a venerable concept and it has always involved some contact with the victim. Assault by looking or photographing is a contradiction. Also although the motive may be sexual the assault is not. Unless the lady concerned is a very liberated dresser the picture shows nothing which you cannot see on any public beach. In fact it is a bit of a puzzle why people take the whole matter so seriously. The “victim” is not only unharmed but usually unconscious of anything happening. The picture does not include her face so there is no question of a “saw you on Youtube” moment coming later. Of course we must discourage this sort of thing but it hardly justifies the enthusiasm of Associate Professor Eric Cheung Tat-ming, of the HKU Law persuasion, who  was reported as rejoicing in the fact that this would be classified as a sexual offence so “offenders’ identities would be available in the sex offenders’ register”. Would they indeed? This is just the sort of thing which gives sexual offenders’ registers a bad name. The purpose of such a register is to enable employers in appropriate categories to exclude from their service people whose record suggests they cannot be trusted to work with children and other vulnerable people. It is not supposed to be a mode of punishment and it is a serious deficiency in such a register if it includes large numbers of people whose identity is not relevant to its purpose. People who like upskirts pictures have a taste which I do not share and people who take such pictures are no gentlemen. But there is no reason to suppose that they are a threat to anyone and no justification for branding them as dangerous. Law professors, on the other hand, need to be leashed, if not muzzled.