Books, Review, Spotlight

Germaine Greer’s ‘On Rape’—A Review

A review of On Rape by Germaine Greer. Bloomsbury Publishing (September 2018) 92 pages.

Germaine Greer’s On Rape is roughly the size and thickness of a Beatrix Potter story. And why not? As it happens, The Tale of Jemima Puddleduck also says a great deal of what young people need to know about the topic: beware of polite, well-dressed gentlemen (especially if they have foxy whiskers and black prick ears); don’t go uncritically into dismal summerhouses in the woods; and accepting a dinner invitation does not imply consent to everything the polite gentlemen is looking for.

Greer’s book is not as incisive as Potter’s and it is considerably more expensive. But that is not to say it is a complete waste of money. In some ways it fizzes along with ideas and raises lots of questions that others are frightened to ask. Why are we so afraid of the penis when a fist and a thumb can do more physical damage? Why do some women fantasise about being raped? Are sentences for rapists too long? Should rapists be compulsorily castrated? That it is less good at answering them is not necessarily a criticism. Indeed, as she says (of her proposal that rape sentences should be shorter) “the mere suggestion will cause an outcry which is one good reason for making it.”

On the whole, Greer’s focus is on what we might call “relationship rape.” She has little or nothing to say about serial rapists like John Worboys, the black-cab rapist, or about those who rape children or teenagers. Nor, despite having been written, presumably, during the height of the #MeToo storm, does her book have very much to say about powerful men who abuse their position to have sex with young women. She has nothing to say about “rape by deception” or “grooming gangs,” or the problem of historic allegations or false allegations of rape. Again, that is not in itself a criticism. Such a short book has to be very selective (although one might wonder why she didn’t simply write a longer one).

Greer’s book is, however, let down by two things: the lack of any coherent argument and the author’s tendency to be rather careless with her facts. Insofar as her book has a theme, it is that rape is not unusual. “The reality,” she asserts, on the basis of nothing except a hunch, is “that non-consensual sex is possibly commoner than the consensual variety.”

It is not a rare and catastrophic event or an extraordinary act carried out by monsters; from the banal to the bestial rape is part of the tissue of everyday life.

She supports this point by telling us about a “country house party” that she attended many years ago. Away from their magnificent formal rooms, many of Britain’s great country houses are often in a poor state of repair with notoriously bad plumbing and inadequate soundproofing in the bedroom walls. She was woken in the small hours by cries from the woman next door:

Rupert! Leave me alone. Stop it. Get off me. The protests went on. At one point someone fell out of bed. The cries subsided to be replaced by rhythmic creaking of bedsprings.

Greer was too polite to intervene or to say anything at the time, but she raised it many years later with Rupert’s wife. Did she remember the incident? It turned out that Rupert liked to read late into the night before turning to his wife for “sex that she didn’t want.” Rather than continue protesting, she had allowed him to have intercourse with her.

Apparently, Greer was told, it often happened like that. Even so, the couple remained in a loving relationship with several grandchildren. Rupert’s wife never had any wish to see him jailed. “Was it rape?” she asked. She might have done better to ask a lawyer, but Ms Greer replied that it probably was, thus demonstrating a central problem with rape and with her book. Not wanting something is not the same as not consenting to it. Greer herself accidentally illustrates the point with reference to gynaecological examinations:

These days the vagina is routinely accessed not only by the penis, but by a range of other instruments, to take cervical smears, swabs and samples for the diagnosis of a range of infections, for pregnancy terminations, for bimanual pelvic examinations, and for certain forms of ultrasound investigation.

Few women “want” to undergo a bimanual pelvic examination; but many consent to them because of the benefits that they bring. Had Rupert’s wife asked an English criminal lawyer her attention might have been drawn to the case of Zafar1 which seems pretty much on point:

C. may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner i[t i]s still consent.

So Rupert’s wife—and Rupert too, if he is reading—can relax. He was probably not a rapist, at least not on those facts, and she does not need to consider herself a victim. Greer’s slightly shaky grasp of the law rather undermines her argument that “non-consensual sex is banal and deeply ordinary.” Of course it is, if you don’t define rape correctly. She may well be right that rape is very common, but the evidence she produces doesn’t support her argument.

Nor do her statistics. “The statistics we have about the prevalence of rape and its effects are too soft to be called statistics,” she sniffs. But that’s an audacious statement when you consider some of the statistics she does use. The incidence of fake orgasms is presented as evidence of the ubiquity of rape. This seems, to put it politely, methodologically a little questionable; why not use per capita consumption of margarine in New South Wales, or the concentration of Ponderosa pine pollen grains in ice cores taken from the Greenland ice-cap?

Her data, it turns out, come from a report in the Sun of a survey carried out by the condom manufacturers Durex. To draw any conclusions at all from an obviously bogus news story, in a widely mistrusted tabloid, itself quoting a junk promotional survey designed to sell condoms is something less than rigorous. But, as judges sometimes say when summing up a hopeless case, there it is. The survey, according to Greer, suggests that there are “up to 100,000,000” faked orgasms in Britain every week. There are slightly over 20,000,000 women over the age of 16 living in Britain, so for Greer’s statistic to be accurate it would require the possibility that just about all of them are on average faking orgasms five times a week. As the same judge might say, you must decide for yourselves whether you accept that evidence and, if so, quite where it takes you.

It is not as if more reliable statistics don’t exist. The Crime Survey for England and Wales, for example, produces remarkably detailed surveys of the public experience of sexual offences, dealing not just with the incidence of offending, but also with attitudes towards the offence and the offenders, and the way that people feel they have been treated by the Criminal Justice System. Police forces collate figures for reported rapes. Similar bodies perform the same task in other countries. She could have made a powerful case for the banality of rape if only she had done a little proper research, instead of relying on anecdote and the meaningless witterings of corporations with condoms to sell.

She devotes a chapter to what she calls “the insoluble conundrum of consent.” Clearly this is a problem, not least because if Greer can’t grasp it, it is likely that others can’t either. Rape is sexual intercourse without consent, but (quoting Bianca Fileborn):

… it is not enough for the complainant to know in themselves that they do not consent—the defendant must have knowledge of this non-consent to be considered legally guilty.

Essentially Greer’s point seems to be—and I’m afraid her argument does get a little confused here—that since a man can never know whether a woman is consenting “it is quite unfair to allow him the right to decide the issue.”

Well so it would be, but nowhere in the Western world does the law give the man any such right. He can of course say that he thought the woman was consenting, just as a thief can say “I thought she would be happy if I took her purse,” but it is not enough just to say it: his evidence is often disbelieved. In any case, in England and Wales, and many other countries too, a man cannot escape conviction merely by genuinely believing a woman is consenting, that belief must also be objectively reasonable. Greer does indeed mention the point in passing, but she still seems to miss it as she comes to the end of her chapter on the conundrum of consent:

The burden of proof required to prove rape in a criminal court can never be satisfied; if we are to abandon the formulation used in many jurisdictions, that the defendant who reasonably believed that the victim consented is innocent, and instead rely upon the victim’s statement that she did not consent as sufficient, then … we will have to reduce the penalties for rape. 

This is all such a muddle. Why should the defendant who reasonably believes that a woman is consenting to intercourse be punished at all? By what possible standard has he done anything morally wrong, let alone committed rape? And what does she mean by “instead rely upon the victim’s statement that she did not consent as sufficient”? Seemingly, she means that a man should never be allowed to defend himself by pointing to the good reasons he had for believing a woman was consenting; and that a woman’s statement alone should decide the issue, irrespective of any evidence, however powerful, to the contrary.

Text messages after the event saying “what a wonderful night we had, I love you so much,” would be irrelevant. CCTV evidence flatly contradicting her account would have to be ignored. Greer realises that such an irrefutable presumption would be unfair, so to even things up a little she suggests reducing the penalties for rape, so that the punishment of blameless men wouldn’t matter quite so much. It is the approach to the law of the bench of magistrates who say “we find you guilty but we’re not quite sure so we’ll suspend your prison sentence.” As an answer to the conundrum of consent I don’t think much of it.

Greer adds to the confusion by picking her examples from different countries, sometimes without telling us very clearly (or at all) which country she is talking about. It may be a bit like her own life: one moment we are in New South Wales, the next in Queensland, then before you realise it we’re spending a few pages in Sweden before hopping over the Atlantic with a short stop-over in England. We are told, for example, about rape complainants in America who in 1996 were subjected to polygraph tests, voice stress analysis, handwriting analysis, and statement analysis tests, and “though the results are not admissible in court, lie detectors are widely used in the work-up towards a trial.” Maybe they were (and in some circumstances the results could in fact be admissible, for example if handwriting were in dispute). But in England I have never once come across a single one of the tests she mentions playing any part in any rape investigation.

On the other hand, suspects have it comparatively easy, apparently: “Defendants” she writes, “… are not obliged to hand over their phones and computers in the event of a rape investigation.” I’m sorry? Where is this country in which a suspect can get the police to back off by saying: “Thank you, I’d rather hang onto my phone if you don’t mind, it’s got some rather personal stuff on it that I’d prefer you not to see”? It’s certainly not Britain, where suspects’ phones and computers are routinely seized and examined in rape investigations. This bald assertion is unreferenced, so we can’t check for ourselves where she’s talking about. My guess is that it’s simply not true anywhere.

How much harm does rape do? Partly, she suggests, it makes women irrationally scared:

It is a nonsense for our daughters to be more frightened of penises than our sons are of knives or guns. … to present the penis as capable of turning itself into a weapon is to present an irrational fear as a reasonable response to a present danger.

But rape itself, she suggests, may not do as much harm as is often assumed:

Accounts of the psychological consequences of rape attribute the woman’s suffering to the rape itself, which has the effect of making it sound catastrophic. Raped women will be told not only that they are irrevocably damaged in soul and body but that if they do not acknowledge this they are in denial.

She looks briefly—and rather sceptically—at the evidence that rape victims suffer “Rape Trauma Syndrome,” or Post Traumatic Stress Disorder. For women who report their rapes however:

…we have no idea how much of her distress is caused by the work-up itself, by the compilation of the forensic evidence, by her having to tell her story over and over and in public and then to defend it both in the committal stage and later in the court-room.

Actually, we have quite a good idea about this, because there has been a lot of research on the subject. It has resulted (at least in England and Wales) in the abolition of committal proceedings, strict rules on the limits of cross-examination, the widespread use of video links to obviate the necessity for complainants to appear in court, and the practice of complainants normally giving their evidential accounts by way of a pre-trial video-recorded interview. Some of these changes have also taken place in Australia. That is not to say that Greer is wrong in her general point that the criminal process can still be incredibly distressing, but there should surely have been some acknowledgement that a serious effort has been made to reduce the distress on witnesses within the the context of an adversarial system.

Greer concludes that:

… the most catastrophic shock must surely come when, as far too often happens, the jury does not convict.

It goes without saying that an acquittal is usually very upsetting to a rape complainant but she provides no evidence, either for the assertion that this causes a more catastrophic shock than the rape itself, or that acquittals happen “far too often.” As so often, Greer simply presents her own opinion as fact.

Although many of her arguments are confused and much of her evidence is dubious, Greer’s book has still managed to stimulate debate about a topic in which calm discussion, rather than angry shouting, is sorely needed. That may have been her object, and she concludes on a conciliatory note (though, being Greer, she can’t quite avoid a small provocation too):

If we women love men, and we surely do, rather more I would say than they love us, we will have to find a way out of the slough of bitterness and recrimination into which we seem to have fallen.

 

Matthew Scott is a criminal barrister at Pump Court Chambers and a legal blogger. You can follow him on Twitter @Barristerblog

Reference:

1 See the direction of Pill J cited with approval in Doyle [2010] EWCA 119 & the Crown Court Compendium (July 2018) at 20-4