Sex,+perception+and+reality,+Nicole+Fritz,+Star



=Sex: the perception and reality=

The Star, April 17, 2006 Edition 1

 * Nicole Fritz**

One of the most unsettling experiences of my life was teaching my criminal law class in the United States about the way law dealt with rape.

Prior to teaching the class, I consulted various teaching manuals which gravely advised that the class was likely to set off multiple sensitivities and that in order to prepare myself I should read various instructors' accounts of their own painful experiences teaching these classes. This I duly did.

By the time I walked in front of the class I had so unnerved myself I was barely able to address the class sensibly. Nonetheless I gave them my rehearsed speech about how these classes might trigger great upset and that everyone was to respect the other's point of view and be as sensitive as possible. And instead of my normally voluble, argumentative, participative class, I was met with a grave, taciturn group.

As we canvassed the law and the recommendations for reform to the law (many of them similar to those now proposed in South Africa) my now chastened students didn't dare raise objections and so the uncomfortable task of asking questions about a number of the reforms was left to me.

For instance it has been suggested that rape - rather than being a crime only of intention (as almost all common law crimes are) - should also be a crime of negligence.

For those not familiar with legal standards the difference between intention and negligence really turns on what the accused, himself, perceived or understood and what the reasonable person in the position of the accused would have perceived. The latter is a higher standard and will allow a greater number of convictions.

For many, rightly concerned at the shockingly high incidence of sexual violence, the proposal might appear to have great merit. But it runs against one of the core principles of criminal justice systems throughout the world: that we only punish those who commit wrongful acts with blameworthy minds - that they intend criminal acts to happen, not that they be merely stupid or careless.

I have thought about these classes and subsequent discussions with South African criminal law classes as I have watched the Jacob Zuma trial progress. Much has been made of the complainant's consent or lack thereof and the evidence and testimony around this issue. Yet little has been said about the fact that the state not only has to prove that there was no consent on the complainant's part; they also have to show beyond a reasonable doubt that Zuma had intention in respect of her lack of consent.

What that means is that the accused must have wanted to have sex without the complainant's consent or appreciated that she might not be consenting - in legal terminology, he must have foreseen the possibility of her lack of consent but proceeded reckless as to that outcome. If there is no appreciation of that possibility by the accused - even if the complainant, in reality, did not consent to sex - there can be no conviction.

And therein lies a discomforting conclusion: for the complainant it might be, in every sense, a rape and yet the man who had sex with her without her consent is by law no rapist. That situation might seem unimaginable.

But radical divergence between what the complainant experiences and what the accused understands in the same situation will continue to be a real possibility for as long as society sends out mixed messages as to "appropriate" standards for female sexual conduct. Put simply, there continues to exist the belief, as expressed by some of my less chastened South African male students and even suggested by the authors of the American law textbook that "no" doesn't always mean "no".

Some would-be reformers have suggested that any conflict between the accused and the complainant's experiences could be avoided by entering into written contracts before we enter into sexual relations. That proposal has little promise: few want their sexual relations scripted or subject to invasive regulation.

Others have insisted that the accused's intention in respect of consent be treated as a matter of strict liability - that once the complainant's non-consent is established, the fact that the accused did not himself see it is irrelevant. But while the belief that "no" doesn't always mean "no" is, without doubt, most damaging to women it also works prejudice on men, leaving them uncertain as to women's responses. All this suggests that quite apart from changes in the law, real reform will only come about once there is much more frank public discussion about women's sexuality and the extent to which perceptions and reality fit. And those discussions shouldn't be limited to law school classes or courtrooms.

Admittedly explicit, public discussion may seem quite at odds with the way we enjoy our sexuality. In fact it is often the unspoken negotiation, the uncertain shifting and manoeuvring that is so constitutive of the erotic, that makes sex sexy. And between consenting adults all kinds of things should be possible. But until we can be confident that perceptions of, and actual consent, are really the same thing, sex should only follow a whole lot of talking.


 * The Star's Contributing Editor Nicole Fritz is executive director of the Southern Africa Litigation Centre.


 * From: http://www.thestar.co.za/index.php?fArticleId=3203487**

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