Galloway on Rape and Law’s Own Repugnant Diatribe

On August 18th, the you­tube channel ‘molucca Red,’ ‘[t]he only fully au­thor­ised GG channel,’ posted ‘Good night with George Galloway (Episode 5).’ This episode fea­tured Galloway dis­cussing various is­sues re­lating to the Wikileaks founder Jullian Assange. In watching the episode, es­pe­cially at around 21:15 into the video, the viewer may be for­given for be­gin­ning to feel slightly naus­eous (if this did not occur be­fore). Indeed, the nauseous-​ness of many media out­lets and com­ment­ators has been ex­pressed vehe­mently over the last week or so.

For it is at this point that Galloway states some­thing which he knows will be ‘con­tro­ver­sial.’ Nevertheless he jus­ti­fies the con­tro­versy by stating that ‘some­body has to say this’ against the ‘reign of in­tel­lec­tual terror’ which has ‘des­cended upon this issue,’ ‘at least in Britain’ and (he ‘sus­pects’) ‘else­where in the rest of the Western world.’ [1] What Galloway then moves onto dis­cuss are the sexual ac­cus­a­tions made against Assange from the Swedish au­thor­ities. His re­sponse to the spe­cific ac­cus­a­tions made by ‘Woman A’ are what seem to have pro­voked a strong re­ac­tion (to say the least) against Galloway.

For it be­comes clear that with re­gards to ‘Woman A,’ al­though Galloway con­demns Assange’s ‘sordid’ and ‘dis­gusting’ sexual be­ha­viour, he ul­ti­mately states the fol­lowing: that it is merely ‘really sordid and bad sexual etiquette’ to pen­et­rate a woman whom one is already in bed with, whom one is already naked with and whom one has already pen­et­rated pre­vi­ously, without asking for her con­sent, des­pite the fact she is asleep. This ac­tion, Galloway ex­claims, cannot ‘con­sti­tute rape,’ for if it does, then it ‘bankrupt[s] the term rape of all meaning.’ Hence it is in­stead just a case of ‘really bad man­ners’: ‘it is not rape.’

It is to be noted that this con­tro­ver­sial opinion is clearly at polar op­pos­ites to the 2011 (legal) opinion of the High Court on the sub­ject. For in their judge­ment on the European Arrest Warrant (EAW) filed against Assange and the charge of ‘count 4’ therein against ‘SW’ (the rape of ‘Woman A’ in ques­tion), they clearly state the fol­lowing (at para­graph 109):

In our view on this basis, what was de­scribed in the EAW was rape. Coercion evid­ences know­ledge of a lack of con­sent and lack of a reas­on­able be­lief in con­sent. [2]

With this judge­ment a person’s nauseous-​ness may sub­side. And there is seem­ingly good reason for it to do so. For what is made clear is that the High Court en­dorses the grounds of the EAW put for­ward by the Swedish au­thor­ities, on the basis that it is clear that ‘ex­ploiting’ someone in order to have sex with them is a crim­inal of­fence. Further, a person may be ex­ploited as a result of being in a ‘help­less state,’ such as ‘being asleep.’ [3] Hence, should Assange have pen­et­rated ‘Woman A’ (‘SW’ in the case), as per ‘count 4,’ when she was asleep, then this is in­deed a crime.

It is at this point that the court then ref­er­ences the Sexual Offences Act 2003 of the crim­inal law of England and Wales be­cause this piece of le­gis­la­tion deals pre­cisely with the issue at hand. This point needs ex­plaining, as the court makes only a passing ref­er­ence to the act in order to jus­tify its point.

The court ref­er­ences s. 75 (2) of the 2003 Act which provides for cir­cum­stances which might arise in the act of ‘A’ pen­et­rating ‘B.’ The act provides a legal mech­anism whereby should any of these cir­cum­stances be ap­parent and ‘A’ is aware of them, then it is pre­sumed that there is no con­sent on be­half of ‘B’ and that ‘A’ does not reas­on­ably be­lieve that there is con­sent. These con­di­tions, coupled with the pen­et­rative act, then con­sti­tute rape. This is rel­evant to Assange’s ac­cused ac­tions be­cause s. 75 (2) (d), provides for cir­cum­stances where…

the com­plainant was asleep or oth­er­wise un­con­scious at the time of the rel­evant act. [4]

Indeed, this is pre­cisely the situ­ation of ‘count 4’ de­tailed in the court’s judge­ment (or, re­garding ‘Woman A’ de­scribed by Galloway). Hence, as the court as­serts, ‘she is to be taken not to have con­sented to sexual in­ter­course.’ [5] Such an out­come is well noted in common law, for there are nu­merous in­stances where the ac­cused has been pro­sec­uted for en­ga­ging in in­ter­course (or sexual activity) when the com­plainant in ques­tion was asleep. [6] This (fol­lowing the 2003 Act) res­ults from the ‘evid­en­tial pre­sump­tion’ that there is no con­sent present in cer­tain cir­cum­stances and fur­ther, that the ac­cused does not reas­on­ably be­lieve that there is consent.

However, it is at this point that nauseous-​ness may re­turn. For what has been de­tailed thus far is the ‘evid­en­tial pre­sump­tion’ that there is no con­sent to sex when the com­plainant is asleep. Meanwhile, Galloway’s crude and miso­gyn­istic fer­vour of the fact that ‘this is some­thing which can happen, you know,’ seems to be re­cog­nised by the law as some­what of a le­git­imate fact; in law. For in short, it is leg­ally pos­sible for a woman to con­sent to sex whilst she is un­con­scious or asleep. This point, as with the earlier points on s. 72 (2) (d), needs ex­plaining further.

As has been stated it is only an ‘evid­en­tial pre­sump­tion’ that there is no con­sent given for in­ter­course when a woman is asleep. This means that the ac­cused, ‘A,’ may offer evid­ence which re­buts this pre­sump­tion, and so es­tab­lishes that des­pite the fact that the com­plainant (victim), ‘B,’ was asleep or un­con­scious, she was also con­senting to sex. This point may be seen as du­bious and dif­fi­cult for a jury to find con­vin­cing, [7] but it non­ethe­less is per­mitted and en­com­passed within the cur­rent crim­inal law of England and Wales.

This start­ling fact has not gone un­re­cog­nised by crim­inal scholars and has faced fierce cri­ti­cism for taking the law ‘back­wards rather than for­wards.’ [8] However the point has also been made that the law could here be seen to be too over­bearing on sexual autonomy if it in­stead in­sisted that when a woman was asleep there could not be con­sent given for sexual in­ter­course (or in­deed any sexual activity). [9] In this in­stance what is ob­jected against is that the law, in­stead of en­for­cing an ‘evid­en­tial pre­sump­tion,’ s. 75 (2), rather en­forces a ‘con­clusive pre­sump­tion’ that there was no con­sent, s. 76 (2). Currently, the only cir­cum­stances which mean that there cannot be con­sent given are those where the victim is de­ceived, in­ten­tion­ally by the ac­cused, as to the nature or pur­pose of the act in ques­tion (s. 76 (2) (a)); or they are de­ceived, in­ten­tion­ally by the ac­cused, as to whom is en­ga­ging in the act in ques­tion (in short, the ac­cused im­per­son­ates someone known per­son­ally to the de­fendant) (s. 76 (2) (b)). And so, as the law stands cur­rently, it re­mains that it is still leg­ally pos­sible for un­con­scious women to give con­sent to sex … somehow.

All this nauseous-​ness brings us back to the matter of Galloway’s rally against the ‘reign of in­tel­lec­tual terror.’ Because as much as we are sickened, ap­palled and dis­gusted by what he is sug­gesting, it is clear that some­where, deep within the com­plex­ities of the Sexual Offences Act 2003, Galloway’s fes­tering ac­know­ledge­ment that ‘this is some­thing which can happen, you know,’ finds a shred of validity in law. Whether this re­flects the law’s founding arkhē of a phal­lo­go­centric frame­work with re­gards to the law sur­rounding rape [10] or a hes­it­ancy to le­gis­late against a fierce lib­eral tra­di­tion of autonomy, it sadly sig­nals that al­though the High Court’s ruling is cer­tain with re­gards to ‘count 4’ against Assange, other in­stances of ‘count 4’ may not re­ceive the same ruling. And this will al­ways be to the det­ri­ment of the victim through what is still a phal­lo­go­centric (‘the com­pli­city of Western meta­physics with a no­tion of male first­ness’) [11] con­struc­tion of the law of rape.

So if we are ap­palled by Galloway’s re­mark then we are also to be ap­palled at the state of the law as it stands. For its grasp over a woman’s legal (and sexual) sub­jectivity is one which leaves a lot of ques­tions un­answered. It once again pre­sup­poses cer­tain ho­mo­gen­eous norms about how re­la­tion­ships create cer­tain situ­ations for sexual in­ter­course to take place in, and in doing it opens up the pos­sib­ility for ex­ploit­a­tion and vi­ol­ence against those situ­ations which reside out­side of such norms. As much as Galloway’s chau­vinism may be dis­missed as one man’s ar­chaic and re­pug­nant diatribe, it is not so easy to dis­miss the fact that the law still can permit the very same thing.

The trace which is there­fore left fol­lowing the clas­si­fic­a­tion of being asleep or un­con­scious as an ‘evid­en­tial pre­sump­tion’ means that some­where, in cir­cum­stances of everyday people and their lives, the law has left it pos­sible for the ac­cused to be ac­quitted of an ac­cus­a­tion of rape be­cause it is still leg­ally pos­sible for a sleeping woman to give con­sent to sex. As the philo­sopher Jacques Derrida warned against, here law’s em­pire over women as legal (and sexual) sub­jects re­turns like a re­venant, brought to light through Galloway’s vile comment:

[t]he ef­fect of the Law is to build the struc­ture of the sub­ject, and as soon as you say, “Well, the woman is a sub­ject, and this sub­ject de­serves equal rights,” and so on – then you are caught in the logic of phal­lo­go­centrism and you have re­built the em­pire of the Law. [12]

[1] All quotes are de­duced from the video in ques­tion and any in­ac­curacies are the fault of the author.

[3] As above – para 115.

[5] [2011] EWHC 2849 (Admin) – para 118.

[6] R. v Johnston [2003] EWCA Crim 312, R. v Ciccarelli [2011] EWCA Crim 2665, Garvey [2004] EWCA Crim 2672, R. v Blacklock [2006] EWCA Crim 1740.

[7] Ormerod David, Smith and Hogan’s Criminal Law (13th Edition) Oxford University Press Oxford 2011 p. 726. See P [2009] EWCA Crim 1110 at para 29 for the judiciary’s doubt in the jury being con­vinced of con­sent being present.

[8] Temkin Jennifer and Ashworth Andrew, ‘The Sexual Offences Act 2003: (1) Rape, sexual as­saults and the prob­lems of con­sent’ (2004) May Criminal Law Review 328 at 337. See gen­er­ally 337 – 338 for de­tails of Temkin’s and Ashworth’s cri­ti­cisms on the 2003 Act re­garding s. 75 (2) (d).

[9] Ormerod above note 7, at p. 729: ‘[f]or ex­ample, A, who per­forms a rel­evant sexual act … on his sleeping partner as a ges­ture of in­timacy to wake her, ought not to be con­clus­ively pre­sumed guilty.’

[10] Hale Matthew The History of the Pleas of the Crown In the Savoy Printed by Nutt E and R and Gosling R London 1736. See p. 629 es­pe­cially: ‘[b]ut the hus­band cannot be guilty of a rape com­mitted by him­self upon his lawful wife, for by their mu­tual mat­ri­mo­nial con­sent and con­tract the wife hath given her­self up in this kind unto her hus­band which she cannot re­tract.’ This quote en­sured that for 250 years, until 1991 and the case of R. v R [1992] 1 A.C. 599; (1992) 94 Cr. App. R. 216, that a hus­band could not rape his wife.

[11] Derrida Jacques, McDonald Christie V. ‘Choreographies’ trans. Christie V. McDonald in (ed) Weber Elisabeth Points… Interviews, 1974 – 1994 Stanford University Press Stanford California 1995 p 89 at 96.

[12] Derrida Jacques, Adner James, Doyle Kate and Hendler Glenn ‘Women in the Beehive: A Seminar with Jacques Derrida’ trans. James Adner (2005) 16.3 dif­fer­ences 139 at 149.

  7 comments for “Galloway on Rape and Law’s Own Repugnant Diatribe

  1. rayhow4220wxy4220
    24 August 2012 at 8:33 am

    Galloway’s com­ments were cor­rect. There’s no pre­cedent for the “rape” al­leg­a­tions in this case.

  2. Chris Lloyd
    24 August 2012 at 8:50 am

    Thanks for your com­ment rayhow4220wxy4220, but un­for­tu­nately I dis­agree with your statement.

    As I have re­ferred to, in foot­note 2, the judge­ment of the High Court from 2011 clearly states that the case of ‘count 4′ put for­ward by the Swedish au­thor­ities in the EWA ‘was rape’ (para 109 in the judgement).

    Further (at para 115) the judge­ment also states the fol­lowing: ‘rape can be com­mitted ac­cording to the law of Sweden when a de­fendant has sexual in­ter­course with a woman in a help­less state. The par­tic­u­lars given in the EAW set out that help­less state as being asleep. There is no in­con­sist­ency between what is set out in the EAWand the clas­si­fic­a­tion of rape in Sweden.’ Hence there is deemed to be a pre­cedent for this ac­tion to be judged as rape.

    • rayhow4220wxy4220
      24 August 2012 at 4:03 pm

      I’m aware of what the court as­serted, but what I said was pre­cedent. Show a con­vic­tion, not an as­ser­tion. There is no pre­cedent in UK his­tory for a rape con­vic­tion based on one ‘un­au­thor­ized pen­et­ra­tion’ oc­cur­ring for a second in the middle of sev­eral ses­sions of con­sen­sual sex. It’s never happened. The UK has ap­par­ently never treated this as rape until the defendant’s name was Julian Assange.

      • Chris Lloyd
        24 August 2012 at 5:27 pm

        Thanks for your com­ment again rayhow4220wxy4220 but I think we’re get­ting some­what off the point here.

        It is well es­tab­lished English common law that when a person is asleep, they are un­able to give con­sent for sex. This is re­flected through the 4 cases I’ve re­ferred to in foot­note 6. However the point of the art­icle is to ex­pose that the the law’s phal­lo­go­centrism al­lows for con­sent to be es­tab­lished, somehow, nonetheless.

        But it all seems some­what ir­rel­evant be­cause the English system is not in ques­tion here. Assange is not being pro­sec­uted under English law. It is the Swedish system which is under scru­tiny, and as per the High Court’s ruling, it is a ques­tion of whether or not what Assange is ac­cused of under Swedish law is rape: un­ques­tion­ably it is. This is the as­ser­tion of the court, which relates to pre­cedent in Swedish law to try Assange.

        Indeed this par­tic­ular type of case in­volving ‘the once present and then re­moved’ in­stance of con­sent has been tried in Canada. There, in the case of R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 (http://​scc​.lexum​.org/​e​n​/​2​0​1​1​/​2​0​1​1​s​c​c​2​8​/​2​0​1​1​s​c​c​2​8​.​h​tml) the out­come is ex­actly what one would ex­pect. A person who is un­con­scious cannot be said to be con­senting to sex, even if they had pre­vi­ously given con­sent to sex prior to falling un­con­scious, even if they con­sented to being rendered un­con­scious through as­phyxi­ation. As much as this shows a common law par­allel to what the English system may see as a fit­ting judge­ment on this matter, the point is largely ir­rel­evant, be­cause the English system is not what is in ques­tion. It’s the Swedish system. And again, as the High Court has ruled, the Svea Court of Appeal in Sweden has judged Assange’s ac­tion to be one of rape.

        It is non­ethe­less in­ter­esting, per­haps, that there are no re­corded in­stances of this in English crim­inal law, or at least from what you’ve stated. But again, it’s neither rel­evant to Assange’s charge, nor the larger thesis of the article.

        • ColinGavaghan
          24 August 2012 at 10:12 pm

          Hi Chris,

          Fascinating post, but I’m in­trigued by the ma­jority ruling in the Canadian case. In prin­ciple, it isn’t ob­vious to me why someone should not be able to give an­ti­cip­atory con­sent to some­thing that will happen while they are un­con­scious. People do it all the time when they con­sent to sur­gery under gen­eral an­aes­thetic. The whole pur­pose of ad­vance health­care dir­ect­ives is to allow people to pro­ject cur­rent autonomy into fu­ture situ­ations of in­ca­pa­city. Is there any ob­vious reason why the same should not apply to sexual con­duct, if someone makes an in­formed choice to that effect?

          I un­der­stand that the ma­jority were in­ter­preting the rel­evant pro­vi­sions of the Canadian Criminal Code, and not de­riving this from more gen­eral prin­ciples of common law, so I’m won­dering if a court in England could reach a con­trary de­cision re­garding the 2003 Act. To be honest, this is the only sort of situ­ation I can ima­gine where the ‘evid­en­tial pre­sump­tion’ of in­ca­pa­city could pos­sibly be re­butted; if not that, I’m really strug­gling to ima­gine what the le­gis­lative in­tent be­hind that may have been.

          Any thoughts much ap­pre­ci­ated. (And of course, I realise that this situ­ation is quite dif­ferent from that de­scribed by Galloway.)


          • Chris Lloyd
            28 August 2012 at 1:07 pm

            Hi Colin, many thanks for this — an in­ter­esting point raised. But I think I would an­swer by sep­ar­ating the is­sues in ques­tion, con­senting to sex and secondly con­senting to harm, into the two dif­ferent legal mech­an­isms which are put in place to deal with this situations.

            Under the cur­rent law I’m re­fer­ring to, which I can see your fa­miliar with, there are 2 dif­ferent stat­utes which would be rel­evant in firstly dealing with the ex­ample you’ve raised, and then secondly con­senting to sex. The former being the Offences Against the Person Act 1861 and the second being the Sexual Offences Act 2003. Whilst the first does not spell out what ‘con­sent’ is in law, the second does (s. 74). And I think this legal dis­tinc­tion (his­tory?) is sig­ni­ficant when ad­dressing the idea of con­sent to sur­gery — it is seen as, and al­ways has been seen as, a ne­ces­sary so­cial good and so the awk­ward fact that the pa­tient is un­con­scious throughout means that con­sent *has* to be given be­fore hand. With sex, this is of course dif­ferent; a person is not by de­fault un­con­scious. And so I would proffer that the law sees a dif­fer­ence between the level and type of bodily in­teg­rity which is in ques­tion in each ex­ample. Hence it is seen as dif­ferent when one con­siders sex as to why one needs to be con­scious (largely) to con­sent to sex.

            However this then bring us to the situ­ations where a person could con­sent to sex when they are un­con­scious (having not given their con­sent during a prior con­scious period). This is il­lus­trated by the ex­ample given by David Ormerod in foot­note 9 above. It should be clear from this ex­ample what the law is al­lowing when it leaves the fact that being asleep or un­con­scious is but an ‘evid­en­tial pre­sump­tion’ for the lack of con­sent: that ho­mo­gen­eous nar­rative of com­fort­able (long-​term) part­ners acting out a pre­vi­ously en­acted sexual act, most prob­ably within the con­fines of the mar­ital home. Of course my point is of the harm this does, evid­enced by the ‘sex game’ rhet­oric of Galloway.

            Hope this gives an in­sight into how I’d an­swer your question.

  3. ColinGavaghan
    3 September 2012 at 12:27 am

    Hi Chris, and thanks for the thoughtful reply. Sorry for delayed reply-​to-​your-​reply; I’ll have to take my chances that the thread has died and that I’m talking to my­self here!

    Hm, yes, you’re quite right that the law has drawn these sorts of dis­tinc­tions. But I wonder if there’s an­other in­ter­esting dis­tinc­tion here, between:

    1. situ­ations where pu­tative con­sent will be pre­sumed (re­but­tably or oth­er­wise) not to be valid con­sent; and
    2. situ­ations where con­sent, no matter how valid, will not provide a de­fence to the activity in question.

    The dis­tinc­tion drawn in R v Brown between sexual and med­ical acts was, I think, of Type 2. As you say, be­cause sur­gery is deemed to be a so­cial good, that cannot in many cases be per­formed while the pa­tient is con­scious, we will allow the de­fence of con­sent in such in­stances, but not ne­ces­sarily in others. Leaving aside that the Law Lords got into a bit of a mess when they de­parted from the med­ical ex­ample (is boxing really a so­cial good of any sort?), that’s a dis­tinc­tion with some validity.

    But I think I would want to argue for con­sist­ency on the ques­tion of whether con­sent does, or does not, lapse on loss of con­scious­ness, re­gard­less of what is being con­sented to. At least, I don’t see any ob­vious reason for an in­con­sist­ency here (and I think con­sist­ency in law should be the de­fault po­s­i­tion.) In that re­gard, it seems quite right that the law should pre­sume – in all con­texts – that con­sent does in­deed lapse on loss of con­scious­ness, while leaving open the pos­sib­ility that someone can ex­pli­citly provide to the con­trary. I would also, btw, want to in­sist that the very act of ren­dering un­con­scious (in either con­text) was some­thing to which the person had given ex­plicit con­sent, re­gard­less of what hap­pens thereafter.

    I should add that, while I’m not wholly con­fident that I’m right about this, i do wel­come the chance to cla­rify my thinking on the subject.

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