In forty six years of lecturing I have only had to deal with one protest against the content of my lecture. The subject was coercion; it raised questions about the nature of choice such as when one can be said to have a responsibility for an action as opposed to being “made” or “forced” to do it. In a slightly different, more sociological, language it was about the way in which decisions are “structured” to undermine the concept of free choice. The problem was that I chose to illustrate this entirely in terms of the case law on rape, which offers honed examples of the interpretation of the key concepts. This was a spiffing wheeze I had cooked up with a law lecturer over a pint.
The case which had stimulated my thoughts concerned an African man who had convinced several women that his semen contained both the antidote and the cure for AIDS. Although this was a contemporary case most of my examples were legal classics from nineteenth century England. They included the singing teacher who convinced a pupil that her voice would not mature properly until she had proper sexual intercourse (and he was the very chap to do it). There was also the man who crept into his friend’s wife’s bed and imitated the husband’s voice in seeking consent for intercourse in the dark. Thus the lady consented, but not precisely to what was offered. Or did she?
The protest against my lecture constituted a moral rather than a political challenge. The two protesters were a mature woman and a German girl of normal student age. They always sat as a pair and apart from the other students. The body of the audience seemed to find the lecture enlightening and amusing – the norm among English twenty-one-year-olds did not involve excessive sensitivity. And the academic affairs officer of the students’ union to whom they then addressed their complaint rejected it out of hand on grounds of academic freedom. He knew me well in any case. But I was surprised and concerned by their complaint, which had two aspects. The first was that a man should not talk about rape at all and the second was that nobody should glean any amusement from the subject. I was inclined to dismiss the first, but not the second – though my obvious defence was that the amusing cases were an important part of the exploration of a difficult concept.
History was on the side of my two protesters. That incident was in the 1980s and it wouldn’t be so easy now to play my card of intellectual freedom: it would easily be trumped by its opposite suits, “respect” and “sensitivity” – not to mention “appropriateness”. A clearer morality has now emerged which allows Universal Bads which are beyond debate. These include rape, racism and paedophilia – and there is a sporting parallel in the form of doping. It is as if we have agreed to turn all the venom once directed against a catalogue of sins onto a tiny short list. I have often talked about the state of modern sport in which orthodoxy, which includes nearly all sports journalists, has shown an extraordinary tolerance for many forms of cheating, corruption, greed and overweening ambition in favour of an hysterical condemnation of drugs. There is nothing intrinsically wrong with taking drugs to improve your performance. It is an extension of the ethics of full-time training, complete specialisation, professional coaching and so on rather than something which is incompatible with the essence of sport (like bribing the opposition). In much the same way we have developed a tolerance for adultery, homosexuality and fornication, the ancient list of sins, while raising our opposition to rape and paedophilia to hysterical levels.
Those same sports journalists who achieve such a simplistic condemnation of doping have also achieved an unpleasantly unquestioning venom on the question of rape. Chedwyn (Ched) Evans is a Welsh international footballer who was convicted of rape in 2012 and who was released from prison in 2014. The forcibly expressed and almost unanimous opinion of sports journalists and sponsors is that he should not be allowed to play again. In fact, Evans has always maintained his innocence and his supposed victim admits to remembering nothing about the incident; his girl friend has always stood by him and her father is keen to offer him a job. One lawyer I talked to thought it was astonishing that the case was ever brought to court. A problem of the Undisputed Bad in our society is that when it is alleged pretty well all other principles go out of the window. In this case that includes forgiveness and rehabilitation and the right to earn a living. To put against these the idea that a court found him guilty and subjugate all your faith in a highly flawed legal system is a moral cop-out of unacceptable proportions. It is particularly noticeable that where Unacceptable Bads are concerned courts make poor decisions. In the case of doping even the fundamental principle of mens rea is abandoned with the result that the disciplinary machinery has probably caught and punished more morally innocent people than guilty ones. So congratulations to the few journalists not to demonstrate the orthodox reflex reaction in the Ched Evans case; of course, they had to be women and Allison Pearson of the Daily Telegraph offered a particularly balanced account. And no congratulations to the athlete Jessica Ennis-Hill: one of the stands at Sheffield United, Evans’ previous club, is named after her and she stipulated that if Evans played again she would insist on a dis-association. I had previously regarded her as exemplifying all that is best about contemporary Britain whereas now I think she is falling in with some of the worst aspects.
Of course, it is necessary to point out that the sanctity of Undisputed Bads is a matter for the empowered and respectable majority. For the remainder they represent an opportunity to express the hatred they feel. This is disturbingly obvious when you explore the output of “social media” and web comments on a variety of issues – threatening rape, for instance, is actually quite common. But the phenomenon can also be observed in the more unreconstructed areas of football grounds. The footballer Marlon King, for example, has had several convictions including for actual bodily harm against women and when he was allowed to return to Birmingham City in 2011 some fans greeted him with
E’s big, ‘e’s black,
‘E gives the girls a whack.
Marlon King, Marlon King . .
All Undisputed Bads pose interesting and important problems of definition. This is partly because of the inevitability of the rhetorical tactic which the philosopher Charles Stevenson called “persuasive definition”. If there exists an undisputed bad then you want your enemies to be labelled with it and punished for it. (And if you see your enemies as all males . . .) In the past this has applied particularly to witchcraft, heresy and treason. Actually the definition of rape which was used in most of the cases I cited in the lecture was the old one in English common law: “to procure a woman for sexual intercourse by force, fear or fraud”. It was itself a fairly broad definition as Bernard Shaw, for instance, liked to point out, though it did exclude many things such as the idea of men as victims of rape. But now, naturally, the concept has been extended to include many relationships as a quick trawl round the internet will tell you. A common formula is that rape is, “any form of unwelcome sexual intercourse which is imposed on someone”. The Brisbane Rape and Incest Survivors Support Centre lists a plethora of examples including, “A husband manipulates his wife into having sex in order to “keep the peace””. (Those of us on the happy side of some profound great divide are entitled to ask why she would not want to have intercourse with a husband she loved.)
There are at least two respects in which the assumption of the Undisputed Bad, whether in its ancient or contemporary form, cannot be part of an acceptable form of ethics. The first is it’s crude nominalism: just because you label something UB can never mean it is the same as something else given the same label – and we must always be careful to note who is doing the labelling. There are bad witches and not-so-bad witches. Having sexual intercourse with a fifteen-year-old girl who hangs around your door and says she is nineteen and looks it is a completely different thing from molesting a terrified small child, but both are covered by the same law. In the case of rape, most men could imagine themselves involved in horseplay leading to a penetrative event in which no specific consent was ever forthcoming (and most women can tell you a relevant tale). But very few men, I believe, could contemplate putting on a balaclava, arming themselves with a sharp knife and going out to terrify, penetrate and shame another human being.
It follows that the UB style of moralising lacks an essential, the concept of wickedness or evil. Here I am using a utilitarian concept of evil, a simple thing in a complex world: evil consists of malice, of the desire to make other people miserable. Rape, like witchcraft and religious fanaticism, is usually evil. Indeed, evil, is often the purpose and meaning of rape, a desire to hurt, shame and destroy. But not everything that falls under a definition of rape is evil and certainly not everything that falls under any definition of rape is evil. The husband who “manipulates” his wife into having sex because he believes it will bring them back together is entirely different from the night prowler in the balaclava. And the overwhelming probability is that Ched Evans is not evil either; he has fallen foul of the awful crudity of contemporary popular morality, which lacks the proper sophistication and scepticism necessary for an acceptable form of ethics. Nobody should be denied rehabilitation on the basis of what they did on one occasion.