No sex please, we're drunk: rape ancient and modern

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.

Regular readers of this blog will now be expecting the ancient angle on all this. In fact the ancient debates were almost as complicated as our own, though concerned with rather different issues.

It is often said that in Athens, at least, the idea of women’s consent played no part in the control of sexual violence. That is true in the sense that the attitude of the woman’s guardian was what seems to have counted: even heterosexual rape in Athens was an issue between men. Some Athenians could even claim that seduction was worse than rape – in the sense that seducers actually won over the mind of the woman (another man’s property) to themselves.

But across the ancient world (and even in Athens) it wasn’t quite so simple. Particularly interesting is the constantly paraded connection of rape and marriage. That is obvious in Rome where the origin of the institution of marriage itself was found in a notable mythical rape. Back at the beginning of Roman time Romulus’ new community  had everything it needed, except the wherewithal to ensure its survival: that is, women. So they invited their neighbours, the Sabines, to a festival and at a given signal – when everyone probably had had rather too much to drink --  carried off the young women. This was “The Rape of the Sabines”, immortalized in hundreds of Renaissance paintings (like the Poussin at the top of this post). Modern authors often tone down the sexual violence, and think of it more as “abduction”; but rape it was.

But the connections go further than that. One striking plot-line in Greek and Roman comedy has the young hero rape an unknown woman shortly before his marriage – only to discover later that the woman was actually his fiancée. A happy ending in Greco-Roman terms!

Rape was also a favourite theme in the Roman after-dinner, up-market parlour game (as well as school-room exercise) known as “declamation”. This involved a series of made-up laws and made-up cases, which the participants would plead from one side or the other. One of those made-up laws stated that a woman who had been raped could choose whether to put her assailant to death or marry him (a hint in itself that Romans could see rape as rather a more of a women’s issue than the Athenians did). One of their most ingenious puzzle-cases went like this: on a single night a man raped two women; one wanted him put to death, the other wanted to marry him. The game was for one contestant to plead the case for execution, the other for marriage.

It seems baffling to us as a response to rape. But my guess is that the Romans would find our worries about drunkenness and consent no less odd.