If it wasn’t such an important subject, it would be hard to take seriously the government’s plans for raising the conviction rate in rape trials. One idea is that a woman should be deemed incapable of having giving consent if she was very drunk: in other words, all sex after binge-drinking would count as rape.
This is bonkers. Like many women I have my own rape story (and please read it before you post to say that I am not treating violence against women with due concern). But the idea that drunkenness and consent can be policed in this way, as judges have already pointed out, makes no sense at all.
It is not simply that a rough, unscientific survey suggests that most sex in this country takes place under the influence of alcohol. (Clive James has a bit to say on Kingsley Amis’ s drunken couplings in the coming issue of the TLS.) I actually went so far as to wonder whether the new proposals were not what they seemed, but rather were a cunning way of reducing teenage pregnancies or AIDS – or had been dreamt up by the manufacturers of breathalysers.
But more important is the obvious fact that a witness-less crime, where guilt is often to be determined more by motivation and will, rather than by any physical evidence, is almost impossible to adjudicate. That is to say, no one contests that they had sex; the question is whether she wanted to, or whether he reasonably thought that she did. These are difficulties that were brilliantly highlighted in the recent Channel 4 drama-doc, “Consent” where we saw the tricky deliberations of a jury coming to a Not Guilty verdict – followed by a final flashback which proved just how wrong they were.
The jury’s dilemma is not going to be helped by a series of tick-box rules, which in any case don’t match up to most people’s everyday experience. Why is no-one saying that it would be better to stop men having non-consensual sex in the first place rather than invent hopelessly ingenious ways of trying to convict them when they do? To be fair, a government-sponsored advertising campaign, aimed at men, might be moving a little way in that direction (though the "no entry" sign stamped on the woman's pants still suggests that the main reason you might not have sex with her is simply that you might find yourself in the dock if you did).
The real challenge, to take my own case, is how to stop men thinking that it is still on the margins of acceptability to pick up an exhausted student on Milan railway station, buy her a bed in a Wagon Lit, and then have (unwanted) sex with her on the way to Rome. Prosecution isn’t the only point.