Rape, homosexuality and murder – compared in common parlance
Conflating legal concepts is best left to the laity
Rape is a term in common parlance. Far commoner parlance than back when I was studying the law, but it’s there in common parlance and, in common parlance, it has a meaning, of course. Except that, in common parlance, its meaning will vary according to the person who parleys it.
For its figurative sense, rape has an emotive quality, when applied to raping an entire nation, an entire class, in the sense of wantonly or indiscriminately taking or appropriating all for oneself. But even there I hesitate as to whether raping an entire nation bears the connotation of (a) destroying it or of (b) wanting to acquire it. In the sense in which we see it used in the Russo-Ukrainian War, it is both: what cannot be acquired is despoiled.
The reference works interestingly offer two (or more) alternative definitions of rape. Two alternatives for an offence that stands in law as carrying a reputation of great shame and turpitude is surprising.
But first: murder, he wrote. Murder is an offence that, in the US, is measured in three degrees. The definitions actually start with second-degree murder, which is the act of killing another, simply put, in its general, common law form. First degree is then aggravated murder; the third degree, if it exists, is an alleviated form. All three degrees have one common element: a dead body (albeit not always). But dead bodies are not exclusive to acts of murder. Unintended death can result from culpable homicide, and doing nothing can even result in death: culpable omission. All of that aside from war crimes and the justifiable homicide that can result from conviction of a murderer: execution. The differentiators that divide up a jurisdiction’s laws of homicide into different crimes and different categories of crime, or exemptions, can be ingenious, require detailed study and almost invariably have one other common element, besides the dead body: each jurisdiction’s rules differ, in some manner, from those of any other jurisdiction. Even the 50 states of the US do not all align in terms of terminology, application or definition. What, then, is common parlance?
None of this detracts from the fact that the average citizen will have a clear notion of what is intended with the word murder, and, for newspaper headlines, that is sufficient. For sending a man to the gallows, however, it isn’t. And therein lies the reason for devising such a wide variety of different names and definitions for these related criminal acts: the desire to punish them differently.
The Scottish comedian Billy Connolly had a quip, “Hanging’s too good for you; a good kick in the arse is what you need!” Very drole, but it illustrates to an extreme degree the kind of common parlance that can result in quite illogical, if funny, consequences.
Most jurisdictions will have differentiators that allow a court of law to punish an individual for the unlawful killing of another person (homicide) by accident differently from having killed them with intent and purpose. It is, however, intent that lies at the very heart of what is and is not a crime. The criminal law divides the criminal act into two elements: a physical act (known by its Latin tag actus reus) and an intention to commit the act in question (the mens rea). It makes enquiry of one crucial element for a criminal conviction (intent – the state of the culprit’s mind), which it then divines from his acts, both relative to the criminal act itself and surrounding that act, right down to character testimony attesting to how otherwise good or bad the accused is regarded as being generally.
How murder and culpable homicide are differentiated is in addressing the question of the act that the actor intended to procure (e.g. whether to kill a baby outright, or to silence its crying, and shaking it to death). So, where the elements of intention and the resulting death do not coincide, there is no murder, but a crime bearing another qualification. That is a fine point that is not always appreciated in common parlance. I can kill a man, cause a man’s death, and murder him, and each time be charged with a different crime.
There are as many ways to offend sexually as there are to deprive a person of life. In 1966, at the time that homosexuality was being decriminalised in England, the Earl of Dudley had a quip to rival Billy Connolly’s, cited above, in terms of irony: “[homosexuals] are the most disgusting people in the world ... Prison is much too good a place for them; in fact, that is a place where many of them like to go—for obvious reasons.”
It’s a quip, however, that runs counter to the logic prevailing in England in somewhat older times, whereby God’s ordinance thou shalt not kill was interpreted as a proscription of the act of suicide. The penalty for causing the death of another, or attempting to do so, was itself death by hanging, or by the sword for the aristocracy, and likewise was the penalty for causing the death of oneself or, indeed more relevantly, attempting to do so. Yes, the penalty for attempted suicide used to be death. Time for an old joke: masochist to sadist: “Hurt me;” sadist to masochist: “No.” Lord Dudley was clearly a sadist, whose definition of punishment, rather than being directly proportional to society’s view of the offence as committed, was inversely proportional to the culprit’s subjective fetishisation of that punishment.
The sexual offence of male homosexuality (female homosexuality has never been proscribed in the UK’s laws) was, for the most part, done away with in England and Wales in 1967, as a result of the Sexual Offences Act of that year. Northern Ireland had to wait until 1982 for similar decriminalisation, although Scotland needed to wait only till 1981. Nonetheless, questions were raised as to why homosexuality was decriminalised only in England and Wales in 1967. Why the 14/15-year gap to decriminalisation in Scotland and Northern Ireland? The reason was simple parliamentary pragmatism: Lord Wolfenden had reported on the matter in 1957. There had been various attempts to get it into law, but, by 1966, all had failed. The Wilson governments were peppered with legislative initiatives that marked out the permissive society: abortion, the pill, the abolition of hanging, of theatre censorship, the relaxation of divorce laws and, now, this one. Remarkably, Wilson himself was far removed from these wide-sweeping changes in society, the initiative in the case of the 1967 act coming from Humphry Berkeley, the Conservative MP for Lancaster. Liberal MP David Steel asked him why the 1966 bill had been limited in its geographical scope, to which the answer was reported by Steel as: “The Bill was discussed on a Friday and if he included Scotland in it most of the Scottish Members would stay to vote against it. Probably that was wise and sound judgment on his part.”
Probably, it was. But it wasn’t exactly anchored in principle; but, then again, one might ask, what did principle ever have to do with politics? Principle in fact has a great deal to do with politics, but not absolute principle. If the principle to be vaunted is It is not right that two men acting in private should not be allowed to engage in sexual activity in this country why is it that this country is interpreted to mean part of this country? Why was homosexuality decriminalised for acts involving two men and not just men? Why was the age of consent set at 21, and not at 16, as it was, and is, for heterosexual activity? Did Berkley promote the bill because he was himself homosexual (he was, but was that why he promoted the bill?) or did the bill seek some higher purpose than easing his own way through life? David Steel called him probably wise and sound in judgment; procuring that Scots would not oppose the bill helped it along. But promoting the bill, Berkley thought, cost him his seat at the next election. If his intention was selfish, it was short-lasting; if it was altruistic, it eventually encompassed the rest of the UK and saw the age limit reduced, if not to 16, to 18. The true intention behind Humphry Berkeley’s promotion of the 1966 bill is no harder to determine and no less important to a decision on his motives for doing so than is the true intention of a putative murderer to a decision on whether they are an actual murderer. The former is dismissed as a matter of no consequence; the latter very much not so.
Prosecutions of homosexuals were rare by 1967 and, certainly, 1982, but the prosecution of Alan Turing in 1952, following a frank statement by Turing of his relationship to co-accused Arnold Murray, reveals the truth that a law whose enforcement would, to most, beggar belief à la John McEnroe (“You cannot be serious”) can nonetheless end up being in deadly earnest. Whilst evidence of the act will convince a court of the act’s commission, it is evidence of other acts and facts, not of the act of commission per se, that will nonetheless serve as evidence of the mens rea that is to be proved. For the simple reason that, even if we ask them, it is not always certain what an accused’s intentions were.
So, what, then, of rape? Does rape submit to sub-categorisation along the lines of homicide? There are certainly varying degrees of sexual offence, from indecent exposure all the way up. Where is rape compared to, say, sexual assault on that scale? Is rape the result of pre-formulated, unerring intention? If it is not, and occurs without pre-meditation, as a slip-up in the heat of the moment, is it then something less than rape? Clearly, “I fancy you” is hardly an act of rape, and the common question put to a court of law is what point between “I fancy you” and consummation of the sexual act without consent can be said to constitute the moment of rape. And, for that, I need to revert to my opening statement: that there are two definitions of what constitutes rape.
First, the one that I learned at university, which is the common law definition pre-the Sexual Offences (Scotland) Act 2009:
“The general rule is that the actus reus of rape is constituted by the man having sexual intercourse with the woman without her consent; in the case of females who are under the age of 12 or who for any other reason are incapable of giving such consent, the absence of consent should, as at present, be presumed; and mens rea on the part of the man is present where he knows that the woman is not consenting or at any rate is reckless as to whether she is consenting…“reckless” should be understood in the subjective sense…”
The law’s later amendments in 2009 expanded the definition of rape to include insertion into the anus or mouth, but still required that what is inserted must be a penis. If that is not the case, then another offence is committed, in Scotland if nowhere else, but not rape.
The definition in the US is remarkably different:
Unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the person subjected to such penetration (https://www.dictionary.com/browse/rape).
Rape has therefore evolved over time, from sexual intercourse by a man against a woman who is not his wife, through force and against her will (Black’s Law Dictionary, ed. Garner, 10th edn., p. 1450) to that between a man and any other person, including men (e.g. Sexual Offences (Scotland) Act 2009), with meanwhile a conclusion drawn by Perkins and Boyce (Criminal Law 211-12, 3rd edn. 1982) that a woman’s resistance need not be more than her age, strength, the surrounding facts, and all attending circumstances make reasonable, the force element having, due to the frequent application of drugs by rapists, been reduced in its simplest form to a rule that consent is not constituted by a lack of refusal.
This, it might be hoped, should simplify prosecutions of the criminal offence of rape. But, till now, it hasn’t. Rape remains one of the easiest crimes to get away with. Fewer than 1% of rapes in the UK are successfully prosecuted, and an investigation is underway into why that is (see https://endlesschain.substack.com/p/can-you-resist-a-pickup-bar). And, it also raises some interesting speculation on the average boy-meets-girl scenario. If youngsters habitually engage in drinking parties in order supposedly to advance their growing-up processes, at what point do those boys who’ve got a little out of control bear guilt for taking advantage of those girls who have, likewise, got a little out of control? Where does bravado take over from laxity, where does bravado conquer laxity? When does no means yes actually mean no? (See https://en.wikipedia.org/wiki/Steubenville_High_School_rape_case.)
If, as opposed to consummation, we leave the analysis simply with the first kiss, how many of those are preceded by the enquiry May I kiss you? and how many result in a slap in the face? The spontaneity and naturalness of love and its lovers invites a delusion that, just as winter melts into spring, so strangers melt into l’amore. The contractual nature that the law of rape might invite us to conclude in is simply absent in – I guess – the vast majority of cases. What, more than evidence as to the lack of the victim’s consent, is likely to lead to a conviction is, rather, evidence of the accused’s ethnic origins, his level of income and testimony as to those with whom he associates. For they tell the court what kind of a man they are dealing with here. And telling them that will tell them whether he is guilty or not of the crime of rape of which he is accused. Will it not?
On the spectrum of sexual offences is one I’ve alluded to above: sexual assault. Which of these is worse, do you think? Rape or sexual assault? To answer that, one has to know in relation to which jurisdiction the answer is to be given. For Garner, in Black’s Law Dictionary, stops short of including rape in sexual assault (calling it offensive sexual contact with another person, exclusive of rape) whilst defining the overall term sexual assault as sexual intercourse with another person who does not consent; that is what one might say, in common parlance, is the general concept of rape. So, when is rape not rape?
“The finding that Ms. Carroll failed to prove that she was raped within the meaning of the New York Penal Law does not mean that she failed to prove that Mr Trump raped her as many people commonly understand the word rape” (from an order of 19 July 2023 by Judge Lewis Kaplan on denying a motion for appeal in the matter of E. Jean Carroll v. Donald J. Trump. There, it was claimed the defendant had raped the plaintiff. The case went to a jury trial, and the jury ex proprio motu made a finding of sexual assault, referred to otherwise as sexual abuse, not of rape as claimed, and ordered damages of USD 5 million.)
What Kaplan says is that, when asked to make a finding in fact that Donald Trump raped E. Jean Carroll, the jury demurred and, instead, made a finding of sexual assault; but that, contrary to what certain dictionaries and other laws might say, a finding of sexual assault is, in common parlance, a finding of rape, and therefore Donald Trump did rape E. Jean Carroll, and the jury therefore handed down a finding of rape, when it said sexual assault after having been asked to find in rape.
His reasoning is that rape as defined in the State of New York is limited to the old Scots definition, on which many countries were once internationally united. The jury declined to make a finding of rape owing to the narrowness of that standard, instead opting for the more broadly cast net of sexual assault (in New York sexual abuse), since what Trump used in committing the act was not his penis but his finger – Forcible, unconsented-to penetration of the vagina or of other bodily orifices by fingers, other body parts, or other articles or materials.
However, from that conclusion, Kaplan then re-concludes that, because the general concept of rape is now more in line with that contained on dictionary.com, Trump did in fact, instead of sexually abusing Carroll, rape her. It is almost as if Kaplan draws a distinction between rape as defined by statute and the verb to rape as used in common conversation, and one can imagine a parallel in murder: he hasn’t actually murdered anyone but he’s guilty of the act of murder. Someone who is guilty of culpable omission thereby becomes a murderer, and that would be a hard judgment, one that the law seeks consciously to avoid, by creating separate categories for the offences and separate tariffs for their punishment.
One might be tempted to speculate that Lewis Kaplan’s readiness to conflate the concepts of rape and sexual abuse, as clearly distinguished from each other in New York law, shows a readiness to damn Donald Trump come what may. Whatever Trump did to earn the verdict against him in the Carroll cases and the many others that whirl around him these days, I think it is less than helpful for the myriad sexual offences and terms that circulate in judicial practice to be conflated or confused or in any way equated to one another where the legislature has gone to some pains to actually keep the terms apart for the purposes of the law as applied in their jurisdiction. And that in an area of the law that has undergone significant upheaval in the past 20 or so years and, what’s more, whose enforcement is at levels fit to invite scepticism. All that against a background in which rape is as good as normalised in the context of armed conflict, the incidence of which seems only to be rising across the expanse of the globe’s surface.
In the fringe domain of sexual fetishism, it is not unusual for rape to be acted out as part of a game. Many such S&M or BDSM games are not indulged in for a bundle of laughs, but with a degree of deadly earnest that imbues them with a sense of desired reality, and there are some who partake in such games without the slightest intention of merely playing. Any accusation that might arise in such a context would be instantly dismissed with testimony to the fact that the victim asked for it, and, if one asks to be raped, then one is intrinsically embroiled in a double bind: to comply with such a request might be to engage in sexual acts with them, but it is not to rape them, for consent is given; to be able to rape the victim in the legal sense, the victim must ask do not rape me. And, he who respects the wishes of others would thereby desist from further action. Or is even that too simply put?
From the old common law definition came a development: that a man can in fact rape his wife; he can rape another man; the absence of no does not imply yes; rather, the absence of yes implies no; the use of force is as the circumstances portray; reckless is subjective; the insertion defining the offence need not be of a penis; where it is inserted need not be a vagina. Coupled with the fact that, in some scenarios, a state of cross-purposes is easily reached when the purposes are themselves devised in the heat of a moment; and games in which legal illogicality is played out leave both the non-consenting and the consenting at risk. Could it be that, some day, yes might not even be conclusive evidence of yes? And what effect might that have on the law of contracts, the putative meeting of the minds?
If the aim of all that is to damn the damnable by all and any means, it isn’t a means that appeals. If it’s designed to make courts’ jobs easier when condemning rapists, then the evidence isn’t that great that it works: after all, E. Jean Carroll has proved Donald Trump sexually assaulted her in the context of a civil claim for damages, but Donald Trump has no conviction against him for that behaviour in a criminal court, not even if Lewis Kaplan wants to conflate the two offences as being one and the same thing. Unfortunately, within the context of the E. Jean Carroll cases, they’re not even offences, they are misbehaviour giving cause for liability to pay damages.
- That man’s bad.
- There is no law against that.
- There is! God’s law!
- Then God can arrest him.
- Sophistication upon sophistication!
- No, sheer simplicity. The law, Roper, the law. I know what’s legal not what’s right. And I’ll stick to what’s legal.
- Then you set Man’s law above God’s!
- No, far below; but let me draw your attention to a fact – I’m not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh there I’m a forester.
…
We speak of being anchored to our principles. But if the weather turns nasty you up with an anchor and let it down where there’s less wind, and the fishing’s better. And ‘look’ we say ‘I’m anchored! To my principles!’
A Man For All Seasons, by Robert Bolt.
Images: the seal of the United States District Court for the Southern District of New York (By United States District Court for the Southern District of New York - This vector image includes elements that have been taken or adapted from this file:, Public Domain, https://commons.wikimedia.org/w/index.php?curid=112991698) and the Royal Coat of Arms of the United Kingdom of Great Britain and Northern Ireland in the style used by His Majesty's Government in Scotland (https://creativecommons.org/licenses/by-sa/3.0)