Contributory guilt in sexual assault cases

שו”ת › Contributory guilt in sexual assault cases

asked 6 years ago

Hello Rabbi.

You’ve written quite a bit about how contributory guilt can be attributed to victims of sexual offenses who engaged in overt sexual behavior before the injury. At least that’s how I understood it, please correct me if I’m wrong.

Anyway, you have a few questions about this:
What is the safest behavior, in a sexual context, from your perspective? Does a woman who dresses in a revealing manner, but does not initiate any sexual contact, and is attacked in the middle of the street have contributory guilt from your perspective? Or perhaps a low level of contributory guilt?
If so, a follow-up question – does a black man in his 50s, who is walking around a white neighborhood in the US and is attacked – also have contributory guilt, in your opinion? My point is that when moral norms are flawed and lead to physical attacks, the problem is not the victim’s behavior, but the flawed moral norms.
Contributory fault is a legal term, and so I would be happy to discuss it using legal tools. Contributory fault is determined in relation to the injured party when he did not take reasonable precautions under the circumstances. Are reasonable precautions, in order to avoid sexual harassment, that is, in order to avoid unwanted touching of my body, dressing in a certain way? In my opinion, this is not reasonable. Yes, it is reasonable to expect men in human society to restrain themselves, even in the face of certain sights, of any kind. In my opinion, men can certainly be expected not to impose themselves, in any way, on other people. And if the structure of human biology makes this difficult – it must be tamed with the help of rigid social influence, not surrendered to by reducing the freedom of the injured party.
I would love to hear your opinion.
Good Saturday,
Tair

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מיכי Staff answered 6 years ago

I don’t know how to give a criterion. There is conduct that seems reasonable and there is not. But I think everyone would agree that there are situations in which the victim has contributory guilt and there are situations in which he does not. Therefore, the question of the criterion is placed before all of us, and not just me. Only those who are unwilling to acknowledge contributory guilt at all are exempt from proposing a criterion. In the past, I have already stated that the great liberals see the ascent to the Temple Mount or the Kahanist parade in Umm al-Fahm as provocations that justify violence by Arabs, but are unwilling to hear about a sexual victim having contributory guilt. [By the way, there is a difference between the two situations. Among Arabs, violence is initiated and deliberate and receives social legitimacy, including from the Jewish left, while sexual violence is usually the result of a violent instinctive outburst that is very difficult to overcome.] The distinction will depend, among other things, on the question of what we consider reasonable and logical conduct, or even a basic right that it is unreasonable to demand of a person to give up. In my opinion, walking naked is not a basic right, since it is not that difficult to cover up a little, and therefore I see such walking as contributory guilt. But of course, what seems reasonable and what does not, what is a basic right and what is not, is a question that depends on social norms. My argument is against social norms and not specifically against this or that woman. It is important to understand that there is a complex dependency here between facts and norms: norms determine what is reasonable and what is not legitimate to demand that people give up, and from this, guilt and responsibility for what happened (the facts) are determined. But the actual results and the risks that arise from them play a role in determining norms. My point is that if there is a violent situation that in the existing social atmosphere cannot be overcome, this is one indication (of course not the only one) that it is reasonable to demand that people give up on it (that it is not a basic right and it is legitimate to demand abstinence). If the sexual drive and violence are such that current conduct fails to prevent acts of sexual violence, this is an indication that it is necessary to examine whether such conduct is reasonable or whether it is right to demand that it be given up, and to see those who do not give it up as sharing in the blame (contributory guilt). Contributory guilt also lies with the society that sets norms, and not just with the individual person who acts according to them. And by the way, even in the legal world there are no criteria for contributory guilt. The criterion is reasonableness (the proportionality of the demand against the intensity of the risk and its consequences).

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תאיר replied 6 years ago

Hi, thanks for the quick and to the point response as always.
I assume you don't have unnecessary time to argue on the subject, so I'll make a few comments to your response, if only for the sake of the readers:

1. I'll start from the end, with respect to your observation that even in the legal world there is no criterion for determining contributory guilt. I'm not a lawyer, but I'm a little familiar with the case law on the subject, and the truth is that as with any legal doctrine, tests have been established in case law that can be called criteria for contributory guilt. Of course, their application varies depending on the circumstances, but in general there are two of them: A. The test of reasonableness, as you said. Would a more reasonable woman have been careful and dressed more modestly? In my opinion, when the question is asked like this, that is, as a factual question, the answer is completely negative. Reasonableness, as you correctly described, is closely related to the social norm. Therefore, there is no irresponsible behavior here, since most women dress however they want and are not attacked.
B. Another test examines behavior in the light of morality, that is, the consequences of an act that is claimed to be irresponsible, in relation to another. I would have a very hard time finding the negative consequences of wearing shorts towards another, with all “respect” to the sexual urge. There are also other urges, such as the urge to eat, and I imagine that no one would attribute contributory guilt to a pastry chef whose desserts were stolen.
I know that you addressed the legal issue in passing, but on second thought, we are dealing here with damage – sexual harm – and therefore it makes sense to discuss it from a legal perspective.
2. You claim, as I understand it, that contributory guilt is in relation to the social norm. I really have a hard time understanding how a norm can be rejected because of cases that are relatively exceptional. Or in simple terms – most women in a permissive society are not sexually harmed, contrary to the false statistics that are being circulated today. This is complete nonsense, if you want I will attach references, but rape cases in societies of middle and higher socioeconomic status are rare.
Sexual harassment is an area that cannot be tested empirically at all, in light of the approach of ”anything that subjectively displeases you is sexual harassment”.
I mean, in the past society was less permissive, and you found no less if not more sexual violence there. Hence, there is no evidence of the problematic nature of this norm, at least not from a moral perspective.

מיכי Staff replied 6 years ago

1. These are not criteria. The test of reasonableness will be accompanied by the question of what is reasonable and what is reasonable. This is exactly what I wrote, that reasonableness is in the eyes of the observer and according to accepted norms. The fact that most women dress however they want and are not attacked does not prove anything. The question is whether there are too many cases that justify demanding that women not dress as they want. And again, this is in the eyes of the observer.
B. The question is how strong the urges are and to what extent a person can control them. Beyond that, even if the urge to eat were of similar strength, it does not harm others and its consequences are not as serious. Therefore, this comparison is irrelevant.
In short, the legal discussion adds nothing here. Lawyers cannot contribute anything to the discussion beyond the common sense that each of us also has.
2. See my words above. The question is not one of majority and minority, but of how many cases and whether we are willing to live with them. Beyond that, I don't know where you get the claim that the statistics that are published are false. There are many sources that report very large numbers (not necessarily of rape, but harassment at various levels) and that's what I hear from almost every woman.
And another comment. It's hard to compare different societies because there are several parameters that distinguish them, and therefore it's difficult to isolate the effect of the way a woman dresses and sexual permissiveness on the number of cases of sexual violence. Therefore, such statistical comparisons are not really relevant to the discussion. The fact is that a woman's behavior arouses men more or less, and that's hard to deny. Therefore, it seems to me that it is also a catalyst for cases of violence (which are, of course, on the edge).
In conclusion, I will just go back and say that the main point of my argument in the last column is not on the factual level but on the logical level. You can't treat sex as something banal and then cry out as if there is an attack on the soul and the depth of intimacy here.