The burden of proof in rape cases

I had an interesting discussion - well, more of a row, really - with my girlfriend yesterday following last night's episode of Silk on BBC 1. This featured a rape case in which - as is usually the case - the conviction or not of the defendant came down purely to the question of who the jury believes. In this instance, the defendant was acquitted, although the programme provided additional information to the audience compared with what was available to the jury so as to suggest that a guilty verdict would have been more reasonable.

The argument with my girlfriend was sparked off by my observing that, as far as I am aware, the guidance that is now given to boys in English schools is that they have to obtain definite, positive consent to sex in order to be sure that they are not committing a rape, rather than just the absence of a 'no'. In other words, it's no longer an excuse to assume that, if the woman does not say no, she is giving her consent: she has to provide a clear and unambiguous 'yes'. I then went on to say to my girlfriend that, in the rape case on the TV drama, this had not been reflected in the interrogations in court of the victim and defendant: the victim confirmed she had not said 'no', but this was allowed to be construed as a potential 'yes'; whereas if the man had been under an obligation to obtain a positive 'yes' (not just the absence of a 'no'), then the incident in question would much more likely have been interpreted as a rape. In other words, if a man does not obtain unambiguous consent, then consent should not be assumed, either by the man or by a court. I observed that the trial in the drama did not seem to reflect this shifting of the burden of proof in favour of the woman.

The row that ensued owed more to my girlfriend's own personal experiences than to the merits or otherwise of the technical point I was making, and my girlfriend argued that distinctions of the kind I was making changed nothing about the basic dilemma that it still comes down to who the jury believes. This is true. But it's equally true that the change in emphasis to which I was referring is not insignificant: while it doesn't affect the fact that rape cases hinge on who the jury believes, it does affect what they are required to believe; i.e. whether explicit verbal consent is given or not, rather than just implicit, tacit consent.

This distinction can be brought to bear on one of the drama's pivotal moments, where the council for the defence (a woman who has strong reservations, to say the least, about the merits of her own case) asks the defendant to look her, the jury and the victim in the eye and state that he didn't commit a rape. With the change in emphasis from tacit to explicit consent, the prosecution would have been able to ask the defendant not whether he had committed rape but whether at the time he was absolutely sure that he wasn't committing rape. Any hesitation or uncertainty on the defendant's part could then have been construed as implying that the defendant wasn't completely sure. In other words, even if, in his own mind, what he was doing didn't constitute rape, if there was any doubt about the consent of the woman at the time of the incident, then this is tantamount to rape: having sex without obtaining the explicit consent of the woman.

Of course, it is always possible that a man can have sex with a woman without being completely sure he has obtained her consent, and that the woman is in fact consenting but subsequently decides to accuse the man of rape. This is not a rape but the man is on one level just as 'guilty' as if it were: whether the woman was actually willing or not, the man did not fulfil his moral or legal obligation to obtain explicit consent.

If this principle were reflected in law, and not just in English school class rooms, then women would in fact be much more likely to be given the benefit of the doubt by juries; and it would make it easier to obtain convictions in rape cases.

However, if this principle were indeed incorporated into English law, would it mean that, in every single instance, consent could not be assumed and would have to be explicitly requested, thereby destroying the magic of intimate moments between loving couples slipping wordlessly into passionate love making, to say nothing of eroding the bonds of absolute trust that should exist between, say, a husband and wife?

And is a man making love to a woman without being 100% sure he has obtained consent - but where that consent is both apparent and actual - really effectively guilty of rape?

Faith, Homosexuality and Vocation

If there's one thing evangelical-Christian and Islamic fundamentalists agree on, it is the moral 'depravity' of homosexuality. They agree on this point at least, even if some of their proponents reserve almost the same degree of condemnation for each other as they do for gay sex! If two credos that regard each other as so erroneous can still agree on the gay issue, then either they are both wrong about homosexuality or wrong in their judgements about each other. Either way, this on its own does not inspire confidence that their precepts concerning sexuality are always well grounded in faith terms.

In fact, however, there are many more areas of agreement on morals between strict, conservative Christians and devout Muslims; for instance, on the pivotal importance of the family and the roles of the sexes, with authority being invested in the male head of the household, or indeed of the church or the mosque. One could also mention the importance of regular communal prayer; of Sunday or Friday worship; the sacredness with which the little actions and rituals of daily life, particularly of home and hearth, are endowed; the importance of cleanliness and physical modesty, reflecting the sanctity of the bodily temple housing our immortal soul; and the reverence towards the Holy Book, whether Bible or Qur'an.

These characteristics of the world's two leading faiths are in fact common to all the world's great religions: orthodox Jews, Hindus, Sikhs and Buddhists all cherish these sacred, ritualistic and religiously prescribed features of daily, family life, and particularly the sanctity of the bond that unites husband and wife. And they all in different ways condemn active homosexuality as a 'sin'.

Perhaps, then, if the religions to which the great majority of humanity to some extent adheres all agree on the essentials of what constitutes a holy life, and all repudiate gay sex, there may be something in it. Either that, or they're all wrong - which is the understandable response of many gay persons. But my point is that maybe what is 'wrong' and 'sinful' about gay sexual activity needs to be seen in relation to the call or vocation to a holy life that all religions are essentially there to articulate and direct. Can a life in which a person asserts and enacts his or her 'right' to an active gay sex life truly be said to be 'holy'?

It seems almost oxymoronic to pose the question in this form. But this is perhaps precisely because the two categories - holiness and active homosexuality - are mutually inconsistent. Christian or Muslim conservatives cannot conceive that a gay sex life could have any place in a life dedicated to seeking God's will and striving to grow in holiness. Conversely, defenders of gay lifestyles and relationships - even religious liberals - never (at least, in my experience) claim that gay sex could be the expression of any sort of religious vocation: that God him- or herself is actually calling two people of the same sex to dedicate their lives to one another and express their mutual love in sexual activity. There may indeed be people and religious communities that celebrate such a view; but this sort of thinking certainly does not form part of the pro-gay mainstream, whether religious or not: gay rights are not advocated in the name of holiness.

Maybe this is how the 'sinfulness' of active homosexuality should be described: that it is inconsistent with a life of wholehearted dedication to seeking the will of God; with our religious vocation to holiness. In other words, an active gay lifestyle could be something that prevents an individual from being fully open and responsive to what God is calling them to: his infinitely loving purpose for that person's life here on earth and throughout eternity. This is because the gay person may be putting what 'I want'- even if that is to express love for someone of the same sex in a physical way - ahead of what God wants. In one sense, it's not the 'wanting' gay sex that is the problem but the structuring of a life around the satisfaction of those wants - rather than around the carrying out of God's will to the best of our ability, as we are able to discern it.

If the absence of any defence of the gay lifestyle in the name of holiness - which is not to say that actively gay people can't be generally good people and even good Christians; just that the gay sex itself is not holy - is an implicit recognition that it is not a holy way of life, why is this so? On one level, paradoxically, I'd argue that this not because of any 'inherent' sinfulness of homosexuality per se; and indeed, the Catholic Church does not teach that it is sinful to have a homosexual orientation and even the desires that flow from it, but merely to indulge in those desires in thought or deed in such a way that they override one's Christian duties. The 'non-holiness' of gay sex is the same as the non-holiness of any sexual activity that takes place without reference to the properly sacred character that sex is intended by God to have within marriage: as an expression, manifestation and acting out of God's undying love and commitment to us human beings through all our weaknesses and faults; a love which also is at the origin of all new created life, and present with us at and beyond the end of our mortal lives - meaning that marriage is an essential, consecrated means, established by God, for us as human beings to participate in his creative and redemptive work.

The sexual act is meant to be sacred, and in marriage that purpose is consecrated: sacred both in the divine love and grace for which it is a chosen vessel and, integral to that, in the new human life that is intended to arise from it. The gay sexual lifestyle can no more partake of this sacredness than can a straight relationship outside of marriage; which is not to say that those extra-marital relationships are not in their own way sacred and carry duties on the part the individuals involved towards each other. But these are not consecrated, sacramental, unions - not, therefore, unions as such: expressive of the very sacred, mystical union of Christ with humanity - through his birth, death and resurrection - which transforms our mortal flesh into a vessel of new life.

Sex, through marriage, is therefore intended by its creator to be part of a consecrated life, just as every part of our life and all our actions, for the devout Christian or Muslim, should be part a constant act of prayer and praise to God. Extra-marital sex, even gay sex, is of course not the only way in which we Christians (I can't really speak for Muslims) constantly fail to fully live out our vocation - but continue to be forgiven, held and revived through the mercy and grace of God. As such, gay sex - if allied to a predominantly caring, faithful and loving life - is not deserving of the special condemnation, indeed vilification, it receives from those whose own lives so often are not exemplary. Indeed, oftentimes, we Christians have much to learn - when it comes to love - from those we tend to despise; whether gays or, indeed, Muslims.

Embryos, Persons and the Mind Of God

“What one always has to bear in mind is that it’s the children that should come first - not chronologically or causally in this instance, of course, but in our thinking about what ultimately is in the mind of God for his children, as ‘our’ children have lived in his mind for all eternity. Does he want our children to be born of a father and a mother, and to grow up in the love of their father and mother? There can be no doubt, from the perspective of Christian faith, that the answer to this question is ‘yes’”.

The above is a quote from a post of mine on another blog. There it inspired a couple of comments, one of which was to the effect that if it was in God’s mind to bring children into this world through the loving union of a father and mother, wouldn’t he just do this? My reply - paraphrasing myself - was essentially ‘no’: it might be God’s will that this should happen, but our sin impedes and distorts God’s will, and must therefore be allowed to damage creation (if our freedom to choose evil as well as good is to be genuine); and that God could not arbitrarily alter the laws of biology he had made to reflect and express his loving purpose in creation simply to prevent us from abusing those laws to create and destroy human life without regard to the moral law.

This got me thinking about how we live in the mind of God, both during our temporal existence as living and breathing human beings, and in His eternity (which we view from our time-bound perspective as ‘before’ and ‘after’ our mortal lives). And how does that relate to our human personhood, and the ethics of human reproduction and embryo research?

My point is this: from the perspective of faith, human life by definition is always personal in the sense that it is an embodiment - a bodily image or reproduction - of the personhood of God himself: Father, Son and the love of the Spirit that unites them and gives rise to the whole of creation as the expression and reflection of the divine love and self-understanding (the Word). In this light, insofar as any actual human life form comes into existence, it necessarily has this essential personal character - as part of its DNA, one might say. This is the case from the moment of conception: the human person that has lived in the mind of God for all eternity now also lives in a time-bound, physical form. The Concept (the Word) has manifested itself in a material body: conception; the Word becomes flesh; a human being is made in God’s image. That human personhood is therefore as complete in a single fertilised ovum or a collection of undifferentiated embryonic stem cells as it is in a newborn baby or mature adult: alive, and able to survive and prosper outside the womb.

When I say that this intrinsic personhood of human life is built into our ‘DNA’, this is also a reference to the fact that, with respect to our genetic inheritance, we are all the expression and product of the union of our biological father and mother, even if the loving moral and spiritual union of our father and mother that God wills for us was absent from the specific biological process of our conception. God loves us into being even when love is absent from the human reproductive processes involved.

Those who attempt to morally justify embryonic stem-cell research seek to do so by denying that undifferentiated embryonic cells do constitute a ‘human person’ or ‘human being’ that might have rights similar to those of born human beings or even foetuses, such as the right to life; the right not to have medical experiments conducted on one’s body / person against one’s will; or the right not to have one’s fundamental genetic structure manipulated and combined with that of other species. It is doubtless scientifically and descriptively true - looking at the question from a materialist perspective - that a collection of undifferentiated embryonic cells does not (yet) have the characteristics that one tends to think of as defining personhood: the beginning of the formation of a recognisably human body, with all the immensely complex variety of cell and tissue types, and bodily organs.

But firstly, the religious - or certainly, the Catholic Christian - moral objection to stem-cell research is not based on such a definition of personhood: the bodily characteristics that appear to denote our status as human beings and persons are in a sense only the ‘outer’ material form of our personhood that in essence lives and exists in God. Once those cells exist, a human person that lives in the mind of God has begun to unfold in time and space, and to reveal and be a small but integral part of God’s loving creative and redemptive purpose.

Secondly, from a purely logical perspective, it is quite arbitrary to declare that after, say, 14 days from conception, what had previously been regarded as a mere collection of undifferentiated cells is now to be regarded as an embryonic human person with rights that it did not have during the first two weeks of its existence. The embryonic person would not exist now had it not gone through 14, or however many, days of undifferentiated-cell existence. This is a continuous process; and to declare that in the later stages of its development, the embryo has a humanity or personhood (humanity defined as personhood) that it did not have in the necessary earlier stages that went before seems completely illogical and self-serving; and it flies in the face of our intuitive perception of when our lives as human persons begin: from the moment of conception when the DNA structures that define who we are started to be laid down.
Besides which, the time limit from which embryos and foetuses are recognised as human beings or persons with legal and human rights is arbitrarily moveable depending on the purpose that is being justified: 14 days in UK legislation with respect to regulating stem-cell research, but 24 weeks when it comes to the legal limit for abortions. When does an unborn human person become a full human being and, as it were, a citizen with full legal rights? It appears to be the case that what defines the threshold for an embryo or foetus to be recognised in law as a human person in this way is merely the point at which they become physically (visually) recognisable as viable, autonomous human entities from the particular perspective that is invoked: that of the medical researcher who recognises that, beyond a certain point, he is extracting cells not from an amorphous, undifferentiated mass but from an actual living embryo that is starting to take on the visual, albeit microscopic, form of a human body and person; or the perspective of medical practice and childbirth, where the 24-week abortion limit was based on the latest stage at which a foetus could not survive if plucked untimely from the womb - a time limit which, for that very reason, is being revised in the current UK Human Fertilisation and Embryology Bill, as medical advances have made it possible for foetuses to survive from an earlier age.

This really is a rather primitive and, indeed, material, irrational and superstitious way to decide when an unborn human entity becomes a human person: simply when it corresponds to our bodily image of a human being - paradoxically defining the humanness of unborn life purely in relation to the appearances and conditions for survival of born life. The unborn clearly don’t stand a chance if the odds are so heavily weighted against them. In reality, the vision of faith and the science in this matter fundamentally concur; at least when the science is logically understood as describing a process whereby recognisable bodily-human personhood (what we think of as our existence and personhood) necessarily begins in the undifferentiated (’unrecognisably’ human) embryonic stem-cell state. If we are living human beings and persons now, that is because what we are now was already laid down and was potential within what we were from the moment of our conception - and, in the light of faith, within the eternal mind of God.

This is why, for me, it is so revealing that the Human Fertilisation and Embryology Bill, which has provoked such heated debate in the UK during the last week owing to prime minister Gordon Brown’s initial refusal to allow his Labour Party MPs a free vote on its morally controversial aspects, should sanction such diverse measures as the creation of hybrid human-animal embryos for the purposes of stem-cell research, and the removal of a legal reference to the ‘need for a father’ on the part of children born to Lesbian couples through IVF or other assisted-conception treatment. This latter provision extends to the very birth certificate of such children, in which it will now be possible for both women to be registered as the real (biological) parents, even if neither of them actually are the genetic parents (for instance, if a fertilised egg from another couple is used as opposed to IVF using the eggs of one of the women). This means that such children are officially without a father. They retain their existing legal right to try and trace their genetic father as soon as they reach the age of maturity (18 in the UK); but they will never be allowed to officially recognise that person as their true father - in the eyes of the law, he becomes a ‘mere’ sperm donor and no more.

The thread that these two measures in the Bill have in common is that they involve a denial of those two aspects of unborn human life that are fundamental from its very beginning: that it is personal and a product of the union of a man and a woman, in the sense that, from conception, the human entity is an individuated, unique and living combination of the DNA of its parents - DNA which in turn defines their personhood. And from the faith perspective, the unborn human being is also of course sacred: a living human person ultimately made by God in his image, which we are therefore commanded to respect and protect. And such is, not just the vocation of the believer, but the true calling of science: not so much to determine the ‘mind of God’ through empirical and theoretical enquiry into the material world that is in God but is not God; but to seek ways to cure the ills of our mortal existence that do not violate the purity and beauty of human life that is called in Christ to share God’s mind and love for all eternity.