Introduction
Rape is any sexual activity that
involves two non-consenting people. If it involves a minor, it is renamed
defiling. Rape is a serious as well as common offence in both criminal and
social law courts. It is serious because it directly violates substantive
lifelong physical and cognitive welfare of the victim. As such, many national laws provide for stiffer punishments to offenders, also as a
pre-warning to future potential offenders. While this is the state of affairs,
rape cases never cease, and in fact are reported to be on the rise, many of
which remain unreported. I argue that it is the definition of rape that is fundamentally
fraud and perpetuates the offence. I attribute this trend to that fact that
many offenders get their way out due to lack of what is often referred to as
substantive evidence. In my view, this is, in part, due to weaknesses in the
definition of rape. While classical definition of rape hinges on consent, the
term consent itself is elusive. The central defect is that consent assumes both
parties are of adequate physical and mental capacity to engage in a deliberate
negotiation to reach a consensus that the sexual activity at that particular
moment is appropriate, to the benefit of either one party or both, of course,
with varying degrees. I argue that this assumption is fraud as, in the first
place, the parties in any sexual activity are never of measurably comparable
capacity and that in itself poses significant challenge for litigators to offer
fair trial. The offending party often utilizes its superior advantage to 'force'
the victim into the act. The evidence is hard to decipher as it remains
difficult to both investigate and measure. I use the concept of wild catcher to
elaborate my argument.
The concept of wild catcher
In the wild, animals especially
carnivores use various mechanisms to catch their prey for food. However, all
the different hunting mechanisms conform to similar principles. First, the
hunting animal must study and understand the structural, situational and behavioural
characteristics of the prey animal. These structural, situational and
behavioural characteristics of the prey animal are fundamental to its defense mechanisms.
Capitalizing on the weak points in the structural, behavioural and situational characteristics
of the prey animal, the hunting animal devises its strategy for catching its prey.
Second, almost all the hunting mechanisms involve direct attack on the vital
life systems of the prey animal - the circulatory or nervous or respiratory
systems. Third, the hunting animal utilizes the environment to aid and
complement its inert resources, so do the prey animal to defend itself. For example,
crocodiles use water to suffocate its prey, as the many reptiles also use
camouflage (similar colour as the local scene) to ambush their prey. All these
principles enable the hunting animal to catch the prey with minimum inert
resources.
Rape offenders are wild catchers
Similarly, in rape cases the offending
parties just like the hunting animals, take advantage the structural, situational
and behavioural weaknesses of their victims to commit the act. Firstly, it is common
to note that in most cases, that the victim is structurally weaker that the
offender in physical strengths, for example, defiling an under-aged child or a physically
disabled person; or cognitive strengths, for example, through threats, cheats
on a lesser mentally endowed person such as a minor or adult with some mental
weakness; or economic strengths, for example, teacher vs student or boss vs
employee or doctor vs patient cases. Secondly, most of the victims’ behaviour, especially
alcohol and drug abuse, exposes them to the offenders. Being in a drunk and intoxicated
mode compromises one’s sense of judgment and ability to defend oneself, that
provides the rape offenders with a clear opportunity to attack with minimum
effort. Third, being alone, in secluded and/or less lit places provides the
offender with situational advantage to attack as the victim may find it
difficult to call for help.
It is the community to control rape
Considering the loopholes in
statutory mechanisms to control rape, the fact that it is the victims that idiosyncratically
carry the whole non-reversible burden of rape, and that prevention is better
than cure, it is important, as a community, to take precautionary measures. People
much be self-aware of their structural, situational and behavioural weaknesses and
take appropriate measures to guard against them. Parents and community at large
need to protect the children and people with disabilities, and based on
knowledge of the local situation train the children the necessary life skills
to protect themselves from the potential offenders. The community should not
condone a rape culture but rather condemn it at every opportunity. While protecting
privacy of the victim, rape offenders need to be named and shamed, in addition
to their charged punishment.
No comments:
Post a Comment