When society undergoes a tectonic shift, it sometimes gets buried in the media cycle. Like earthquakes, we focus on the force rather than the new geological reality.
Similarly when Justice Michael Lee handed down his findings in the Lehrmann defamation case: in the aftermath of the ruling, it’s not yet fully appreciated how the case will change society. Of course, we were all agreed that sex without consent is rape. But Lee extracted a narrative of how consent can turn into non-consent without a word being uttered.
With painstaking nuance, Lee found that, though Brittany Higgins had shown enthusiasm for Lehrmann by engaging in passionate kissing at a nightclub, and though she had agreed to go back to Parliament House – probably to continue the intimacy in some form – at the point at which sex (on the balance of probabilities) occurred, Higgins was too affected by alcohol to consent and Lehrmann was (on the balance of probabilities) reckless to her consent. And that is the contemporary definition of rape.
Over the course of his livestreamed judgment, Lee brought the concept of the cad back into modern sexual vernacular, but drew a distinction between cad and rapist. Lehrmann was a cad for leaving Higgins helpless, but caddishness is not illegal. In the past, a cad was a man who took a maiden’s honour but (the maidenhead no longer being an item of social value in polite Western society) a rapist is a person who is reckless to another’s state of mind in the act of sex. Lehrmann’s recklessness was the issue, underscored by his caddishness after. The new item of social value is dignity.
Some men have been shocked by Lee’s definition of rape. One older author declared “an end to the old-fashioned date night”. The judgment has also fuelled a discussion among women that has taken place since the advent of the #MeToo movement, about how we should evaluate our own experiences in the light of contemporary definitions.
Let’s start with that “old-fashioned date night”. It may help our ageing Lothario to remember that it isn’t so old fashioned at all. The “seductions” he describes are actually a very new-fangled type of date night, made possible by effective birth control and the sexual revolution (which he no doubt deplores).
The contraceptive pill liberated women to enjoy sex but also created an atmosphere in which they could be labelled prudes if they didn’t want to enjoy it with just anyone anytime. (In case you missed the last 60 years, prudishness is a negative quality, alongside sluttishness – do try to keep up.) It’s very confusing. We’ve been trying to find new terms of engagement ever since.
It is a matter of agreement among women whose identity I shall conceal in recognition of the frankness of their disclosures, that one or other of us may have had sex that we don’t consider rape, although we weren’t exactly declaiming our consent in the classifieds. Sometimes it was “lazy acquiescence” sex, when we’d found ourselves consensually in someone else’s bed (or them in ours) and decided that getting sex over and done with meant we could get to sleep more quickly.
Cads, you’re on notice – we now have a contemporary definition of rape
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27.04.2024
When society undergoes a tectonic shift, it sometimes gets buried in the media cycle. Like earthquakes, we focus on the force rather than the new geological reality.
Similarly when Justice Michael Lee handed down his findings in the Lehrmann defamation case: in the aftermath of the ruling, it’s not yet fully appreciated how the case will change society. Of course, we were all agreed that sex without consent is rape. But Lee extracted a narrative of how consent can turn into non-consent without a word being uttered.
With painstaking nuance, Lee found that, though Brittany Higgins had shown enthusiasm for Lehrmann by engaging in passionate kissing at a nightclub, and though she had agreed to go back to Parliament House – probably to continue the intimacy in some form – at the........
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