Why the marital rape exemption is senseless

I was prepared to leave this letter well alone until I read that the author is a philosophy tutor at NUS and this is an attempt to emulate the system of Aquinas in Summa Theologiae.

And better still I think this was one of the rare instances where everyone on the political spectrum in YoungRepublic condemned it, which is a remarkable show of unity and demonstrates how absurd his position is. But leaving aside the argument to popularity which might have been applied in the prior statement, here's why it's still fundamentally wrong in the first place.

http://www.straitstimes.com/ST%2BForum/Online%2BStory/STIStory_166104.html

I REFER to the article, 'Rape is rape, so husbands should not have immunity" by Dr Andy Ho (ST, Oct 2).

To remove bias, 'rape' here means only 'non-consensual sex', with no overtone.

With no overtone?! Sorry, the very fact that it is non-consensual makes it wrong. Unless you want to adopt the positions that facially a person's consent is not needed for acts done to him, this statement is latent non-sense (unsinn) in a Wittgenstein fashion i.e. it does not make sense insofar as one cannot imagine it to be falsifiable.

Dr Ho rebuts arguments for 'marital rape is not a crime'.

One: A woman's consent to marriage implies her lifelong consent to sex. Rebuttal: Lifelong consent becomes a 'legal fiction' when the husband turns into a violent stranger. Comment: The law makes no such exception, and no supporting argument is offered for this assertion.

One general comment. He presumes an A/Not A situation wherein rebuttal of Dr. Ho's positions means that his positions stands when in fact he bears the burden of demonstrating why the wife is not equally situated with non-married women with whom the rapist has sexual relations with and therefore the marital rape exemption might be justified despite an ostensible violation of the principle of the equal application of the law.

Two, maybe some believe that a woman's consent to marriage implies her lifelong consent to sex but I don't see a reason why this is the case. If so, then this entire comment is irrelevant. Why does marriage imply consent to sex anymore than it implies consent to say subjugation to the husband or the husband's dominion his hand in discipline? Marriage is a civil and legal institution (so if the Catholics allow for the annulment of marriage on the basis of non-consumation according to their religious beliefs, then so be it) and therefore all the wife consents to are the legal duties that are imposed by law. The common law has come a long way from saying that the wife has no legal personality (no standing before the law) because she is simply an extension of her husband. Since she is recognize to be her own legal person, it must be established why she somehow loses the right not to be raped by her husband as opposed to when she was not married to him.

Three, even if this was the basis of the law, Dr Ho's rebuttal stands.

Four, even if it did not, the interpretation of the letter writer is erroneous. One the matter of lifelong consent to sex, it would be more akin to the idea that the wife cannot withhold sex and still have the marriage stand NOT that the wife cannot withhold consent to sex.

Two: Marriage is a private intimacy, into which the law should thus not intrude. Rebuttal: Marriage as a private intimacy wrongly presumes the interests of husband and wife are aligned. Comment: Neither 'private' nor 'intimacy' presumes interests are aligned.

Nope, good try. The penal code (first drafted for India) is a very old piece of legislation and is a codification of the common law on criminal matters (with some exceptions like the right to self-defense where apparently the drafter's belief was that the natives were so submissive that there would not fight back even if attacked to death and therefore a right of private defense had to be added. Go figure). One of the ideas in the common law was that the wife was simply the extension of her husband and one of the rationales was that their interest were aligned.

Even if this were not true, it still misses the point of similarly situated for an equality of law analysis.

Three: Making marital rape a crime will poison reconciliation. Rebuttal: Marital rape already poisons reconciliation. Comment: Many marital rape victims do 'forgive and forget', and reconcile.

Battered Wife Syndrome. Go google it. They eventually crack and murder their husbands.

Also many don't, prosecution can still be done. Except that because we can't use the rape provision (which allows for sentences of up to 20 years), we have to get them on much lesser charges under use of force, causing hurt (max of a year unless grievous hurt is caused and the definition of grievous hurt is very exactly defined only to include stuff like emasculation, breaking of a limb, causing the person to be hospitalized for more than 30 days etc. which is not what rapes are about) or the stupid 377 provisions. The point to be emphasized is that the act of rape itself is the harm not the harm caused which tends not to be physical).

Four: Making marital rape a crime makes wives more likely to falsely accuse husbands. Rebuttal: England and Ireland have made marital rape a crime, without increasing false accusations. Comment: Dr Ho has a counter-example.

Actually, Dr Ho's point would have stood anyway since it would be the onus of those who advocate the marital rape exemption to prove that false accusations would be a serious problem or even a problem at all. The problem of prosecuting rape is not that of false convictions (although it might happen) but more so that of not being able to convict the rapist because of due process requirments in criminal law that (rightly in principle) make conviction hard. Should it boil down to a he-said-she-said situation, it is not going to be easy to convict on the basis of beyond a reasonable doubt. Add that to the situation of a marriage and in fact unless one puts in presumptions of non-consent, convictions are going to be very very difficult.

Dr Ho argues for 'marital rape should be a crime'.

One: Almost all aspects of women's legal subordination to men have been rejected. Comment: A traffic sign saying 'No entry - except ambulances' will insist on the exception.

There the exception can be justified. Here it cannot be. Therefore there are not analogous and the analogy does not stand.

Two: 'Rape is rape, so the marital rape exception should be completely erased.' Comment: The marital rape exception is built into the law. Insisting the exception be removed does not entail it should be.

The onus is on those wanting the marital rape exemption to justify why the woman once married is not similar situated to a woman who is not married when it comes to the application of rape laws.

Two, it is irrelevant that the exception is built into the law. Unless one commits the fallacy that the status quo is necessarily good, there is no merit to the point. Laws can be amended and repealled and that was the whole point of this exercise in the first place.

UNLESS he wants to argue that even the limited amendment to the marital rape exemption here was wrong? Good luck

Three: Marital rape harms the victim more than does stranger rape, which is a crime. Comment: First, harm may not be a sufficient reason here. Husbands also have duties to wives that strangers do not. Second, the alleged greater harms of betrayal, entrapment and isolation likely presume marital sex must be consensual, rendering the argument circular.

I will wrote the following brilliant response from a member of the YoungRepublic here
"He [the letter writer] also claimed to have found 'circular thinking':

1. Being raped by your husband is shittier than being raped by a stranger
2. But it is only shittier because there is some kind of meta-consent
insofar as he is your husband
3. But rape is a sexual act without consent therefore this is circular

When in fact it is:

1. Being raped by your husband is shittier than being raped by a stranger
because you trusted your husband to treat you with love and respect.

2. Being raped by your husband is therefore both a betrayal of the respect
he owes you as a woman AND as wife.

3. Therefore marital rape, far from being an exception to rape laws, should
be treated as a more heinous form of rape."

So yeah...whatever he said above.

Four: 'Why does the system then deny her what she considers to be in her best interest?' That is, if a wife considers it in her best interest that marital rape is a crime, then marital rape should be a crime. Comment: First, the law must consider the general interest, not that of just one party. Second, wives do not dictate the law.

The general interest is the protection of the individual from crimes, one of which is the protection of the individual from even simply being touched without consent, see here the tort of trespass to the person or what is in the vernacular called battery. Mind you this goes even further than people think it goes, even a simple touch is grounds for liability where there is no consent or implied consent to some de minimis touching when in public. So the consideration here is not that of one party.

Second, one can all too easily replace the word wife with victim to see how utterly fallacious the above is. We have a trial system for a reason.

In summary, we have a case for 'marital rape is not a crime', and none for 'marital rape should be a crime'.

In summary, what we have here is a perfect example of GIGO i.e. Garbage In Garbage Out. If your assumptions and premises are wrong, then you logical analysis will necessarily lead to garbage conclusions.

Peace

TODAYonline: Penal Code Public Feedback

When the Going gets Tough, I get to Blogging

I suppose I could say that I don't have much reason to doubt the veracity of this article. But what's omitted is as important as what is expressly said.

I belong to the Young Republic, a non partisan mailing list which discusses a whole bunch of issues ranging from social to political to economic to science and even literature (rare but it happens). Admittedly we've lost a couple of conservative voices over the past 2 years but quite a number of us, even if considered extreme liberals or libertarians or whatever jargon that's being mentioned, hold sufficient centralist views and even conservative ones (on economics, I would be considered rightist and there's always the libertarians to count on).

So even if we account for the general social liberal bent that the vocal posters on the mailing list (and the blog(s) that we sometimes refer to), it doesn't explain the one paragraph mention of s. 377 and s. 377A (which currently are just sexually regressive but if the recommendations pass, it would just be anti-homosexual and for no good reason). According to 3 different persons who were at the Women's Forum, they was unanimous support for getting rid of the provisions outright, yes even among the presumably straight older section of the forum participants.

As such, making a one paragraph reference to it and giving Alex Au a one line quote is simply not doing the issue any justice. I would venture as far as to say, it's akin to giving the NAACP a one liner when deciding whether to decriminalise inter racial marriages during the Civil Rights Era. It's simply ludicrous in the face of the disproportionate length the other issues get.

Anyway, at the very least that was mentioned. The part about criminalising the act of hurting a person's racial feelings on top of the already criminal act of hurting a person's religious feelings was not even mentioned.

But the more entertaining debate occurred on YR when I shifted my stance on free speech and expression and argued for the extension of such laws to stamp put "hate" speech on the basis of gender, sexual orientation and medical condition in circumstances that we're seeing now i.e. the extension of speech protection to groups who arguably need it least given all the socialization that we've had from NE and the multitude of Racial and Religious Harmony Day.

Of course I got called out on it but it became an issue of whether it was sensible/rational/right/proper for someone who takes the intellectual position that all speech should be free regardless of their viewpoint (not incitement to violence mind you) to nevertheless argue for an even more encompassing anti-speech protection. It was a good debate as these things go, given the constraints of having our respective exams on at the same time but it is revealing insofar as how for me now political expediency trumps intellectual positions in certain situations.

And I think the reason for my shift in thinking is I'm seen the extremes to which intellectual positions can be taken, particularly in the legal field. I will not deny the attractive of the proposition especially in Constitutional law that Judges ought not to make law but merely declare it and as far as possible give effect to the original intent of the drafters/legislators (if alive) who at least are accountable to the people through elections. Of course, I think this disregards the fact that the original drafters of the Constitution (any constitution for that matter) were made by people from a different era (*insert joke here of how EU Parliament legislators are seen to be from the Country of EU Parliament), and it would behoove us as the living to be controlling by the dead hand of law givers long past.

I don't want to make this a post on Originalism and why I think it is simply currently used as a facade to advance certain socially conservative positions but I want to explain how an intellectual position can be taken too far if divorced from reality. [I want to emphasis here that this point and from here onwards now has no bearing on the issue I mentioned above except very and I do stress very tangentially.]

I generally do not think that the government is necessarily bad. That whether big or small, governments can do harm or ill. But, it is true that the larger the government, the more power it has and the more it can generally impinge on our lives if it chooses to do so. Anyway, the discussion was on First Amendment constrains on the government when it chooses to subsidize speech or penalize speech. One of the more controversial areas was whether the government could in effect force a particular decision on you in return for giving a benefit.

To take an example (and this was an actual exchange between me and the interviewer for my law interview), should the government be allowed to require you to take a specific subject in return for a scholarship? At that time, I couched my answer in terms of a benefit that the government does not have to give and hence, could put restrictions or make it a criterion for acceptance i.e. if they give you money, they sure can put strings on it. But when pressed for an opposite viewpoint (why oh why couldn't they ask about something else instead), I couched my argument in terms of the negative consequences of people doing something they did not enjoy. Note that my argument was based on a cost-benefit analysis i.e. it does not answer the basic principle that I was originally advocating.

And for all intent and purposes, I still adhere to that particular principle. But the problem comes when the government gets so large that it can through these problems effective buy your speech or to dry up speech. So for example, a particularly odious program effectively forces doctors to say that abortion is not a form of family planning and they could not speak about it when women come to a federally funded family planning clinic. Or to take another example, the government could simply pay every single journalist to write glowing reports about it and it would be perfectly constitutional.

There is of course, a strong principle behind this i.e. the government should not have to fund competing speech e.g. if it funds anti-smoking campaigns, we do not expect it to fund pro-smoking campaigns. What the government is entitled as the representative of the people to represent their speech i.e. governmental speech. In the earlier examples, the government is simply purchasing speech from those who would speak on its behalf.

But the most important distinction is that in one case there is no worry about the eradication of a particular viewpoint, so Philip Morris and gang, having sufficient money, will still be able to continue to buy their own speech. But even then, it is not inconceivable that the government will be able to outspend them and basically flood the advertising world with so much money that no one will work for the tobacco companies. What more when we are talking about individuals or smaller organisations? That's the problem, that big government can silence speech more easily than small government can.

So it's one thing to adhere to a principle when it is premised on a particular groundwork but it's foolhardy to adhere to it when the premise of that principle has been reversed.

I still think that speech should be as free as possible and it's ridiculous for any worldview (I don't think race or even verifiable history is a worldview but I think hate speech is better combated by showing how inane it is rather than trying to criminalise them) granted immunity from being criticized or offended but when it's a done deal that religion is going to be protected through anti-speech provisions, I figure it's the lesser of two evils.

I don't like it and I sure as hell could be wrong and it could set off a wave of vindictive reporting (I'm just less sad that homophobes will be targeted now). Or even entrench anti-speech provisions so tightly that they will never be eradicate (that's what a constitutional amendment is for). Furthermore, between this and a choice to eradicate all anti-speech provisions altogether, I'll go for the latter.

Anyway, it's a fairly academic debate seeing as how "teh gheys" still have to deal with their expression of sexuality being criminal. I think anti-speech protection is less of an issue for now.

Peace.

Free Speech, Free Expression and Truth in History

IHT: EU backs Turkey over French law

I've been following this situation fairly closely because it touches on a number of things I hold dear to my heart. Unfortunately, one of them is the right of people to be wrong.

But just some quick background facts:
1. French lawmakers passed a law that would criminalise the denial that the killing of Armenians in Turkey prior to and during WW1 constitute genocide. This is inline with their criminalisation of Holocaust denial and general ban of anything related to the Nazis (I'm thinking here of the flareup that occur just before 2000 over the auction of Nazi memorabilia on Yahoo!France).

2. Turkey has punished its authors and intellectuals when they make the claim that it does constitute genocide on the basis that it is a insult to the Turkish identity.

3. The French President's party refused to have anything to do with the vote and is unlikely to approve it in the end. The former spokesperson for President Jacque Chirac and current Minister for European Affairs claims that it is not for the law to decide history.

4. The EU (senior EU officials) has come down on Turkey's side. The article unfortunately makes the argument purely on the basis of it being counterproductive to talks and enlargement etc. etc. and nothing whatsoever at all on Free Expression or Speech. Which is not very surprising if one considers the ICCPR (Internation Covanent on Civil and Political Rights) has abrogated hate speech as a category of protected speech or expression.

So as always, let's start with the principles of free speech and expression. There are a quite a number of justifications for such freedoms.
1. Justification from truth a.k.a. the Free market place of ideas. No one has a monopoly on Truth and it is in the clash of ideas that the closest approximations we have to the Truth emerges.

2. Justification from self autonomy/realisation. A person is what he thinks and expresses and a person if he is to be a truely autonomous being as opposed to a simple cog in the wheel of the majorty/society must be free to express what he thinks right.

3. Justification from Democracy. I like this one. We live in a Represenative Democracy and voters need to information in order to vote in an informed fashion. Free speech and expression provides those.

4. Justification from fear. Who do you trust to make censorship anyway? I don't even trust myself. Power corrupts and absolute power corrupts absolutely. MM LKY made some incredibly eloquent speechs while he was in opposition. As did Prof Jayakumar when he was still an academic.

So with all those in place, what can we say about hate speech (which I put denialist under because they tend to have hated as a basis for their denial). So let's take each principle and see how they weigh up.

1. Truth. Can we not simply say that somethings are so proven that they are true that there really is no point in allowing denialist material as all they do is to muddy the waters and then claim "Aha! Therefore it can't be true" (very like Intelligent Design and Creationism by the way). And as a result, it creates a fish market of ideas rather than a free market, such that even rational intelligent people may be fooled given they lack the time to investigate all claims and tend to rely on authority (rational ignorance is the Public Choice School's term for it).

I think there is much force in this argument, seeing that I do sometimes despair of my fellow people (yeah yeah, I'm in an elitist misanthrope mood today). But I think that's simply a very defeatist attitude and playing to the lowest voter sets off a vicious spiral from which debate never recovers. And I think the clash of ideas is very important, I now know more than I ever want to know about why ID and Creationism is simply wrong and unscientific (and in the process I learned loads about Evolution and the Philosophy of Science and Theology), why Holocaust Deniers are wrong as are the Anti-Vaxers and some others.

2. Self-autonomy and realisation. Is there any worth in allowing people to hold eroneous and potentially dangerous ideas? The current canard holds that "People are entitled to their opinions". Actually no they're not. An opinion is supposed to be predicated on facts. If you're wrong, you're wrong.

But having grown up in the era of "Asian Democracy", where Liberal Democracy was considered dangerous etc. etc. I have sympathy, not with the ideas these people hold BUT with the concept of letting debate reign. In the end, people can change their minds with sufficient evidence and when that happens, the truth is all the sweeter for it.

3. Democracy. Alright, I hesistate to invoke Godwin's law here but the Nazis came to power was not only through the democractic system (and subverting it from within) and because the system provided a platform for such anti-democratic hate platforms to win.

My counter argument to that is that it creates a mainstreaming and release valve effect. The Green Party is Germany was truely radical but under the influence of the moderating power of the electoral system, they have become much much less so, while still being radical enough to stay true to why they were formed in the first place and as long as they exist, there is no reason for people to drift to ever more radical factions and this is a incredibly valuable effect. Not to mention, they provide a sane voice and allow people to blow off steam without actually thinking of destroying the system in order to get their views heard.

Anyway, when they're in the open. It's a lot easier to mock and laugh at them.

4. Fear. It's narrow, all it does is to criminalise Genocide Denial, nothing more. There is nothing wrong with criminalising a dangerous idea.

Counter. The slippery slope rules, first the Nazis, Holocaust Denial, now Genocide denial, what's next? Remember, what is sauce for the goose is sauce for the gander. The Sedition Act may be well and good one may think, but when one falls outside of its protected classes or when it's used against views you hold dear and are in fact right...

Simply put. You're screwed.

Peace.