Between Seduction and Rape (Column 8)

With God's help

Today I saw that my niece, may she live long and well, is participating in the "Free Consent" campaign in northern Israel, as part of which a campaign is being conducted that seeks to make clear that a woman’s or girl’s consent to sexual relations or any form of physical contact must be given explicitly, and that implied or indirect consent is not enough. Among the campaign’s slogans are: "Hesitation means no," "Silence is not yes," "A sexy dress is not yes," and the like. This led to a family discussion on the subject, and I thought there were several principled aspects here worth clarifying in greater detail.

Let me clarify at the outset that even when there is explicit consent, I am certainly no supporter of sexual freedom, and not only for reasons of Jewish law. Still, this discussion extends far beyond the question of sexual freedom, and it is worth examining.

On nonverbal communication and permissiveness

There are many forms of communication between people, far beyond verbal communication. One can understand a person’s wishes in many ways: through body language, through one mannerism or another, and more. This is especially true in sexual matters, which are not always discussed explicitly, and like human relations generally, are naturally based to no small extent on body language and mutual feelings. It seems to me that for quite a few women and girls, hesitation or silence is in fact interpreted as a "yes," and that is also what they mean. One may suggest that it is nevertheless preferable to adopt a stricter approach so as not to fail through mistaken interpretation, but it is simply not true that hesitation or silence always mean no. That is nonsense. In many cases they mean an implied yes. Even if this stricter interpretive proposal is correct and appropriate, it is still hard to accept the automatic accusation directed at someone who did not adopt it and interpreted his partner’s attitude differently. In many cases he is right.

Sexual permissiveness has led society to treat the sexual act in a cheap and casual way. Almost every film contains sexual scenes as a matter of course. And now we are all astonished that people take sexual relations lightly, that they do not make much of them. Such relations are no longer anything like the taboo they once were, and so it is hardly surprising that people do these things without prior deep reflection and without using sophisticated interpretive methods regarding their partners. Why are you making such a big deal out of something so banal?!

Moreover, the feeling is that in many cases there is genuine consent on the part of both partners, but the indirect and implied mode allows one side to retreat after the fact and even accuse the other of assault or rape. This opens the door to manipulation and sometimes to psychological abuse specifically from the "weaker" side. Therefore it does not seem far-fetched to me to demand a clear refusal from the woman and not make do with posters declaring that hesitation means no. True, sometimes it is hard for a woman to say this explicitly, and as is well known, sometimes when she is attacked she is seized by a paralysis that prevents her from reacting; but by the same token, sometimes it is also hard for a man, and even more so for a boy, to refrain from the natural interpretation of her implied mannerisms. At most one can say that the demand for clarity should be directed at both sides.

The Haredi solution

In a more conservative society, where sex is an act that takes place after the relationship has been formalized, the problem hardly arises at all (rape and assaults of course exist in such societies too, but double meanings and ambiguity hardly exist there). Haredi society solves the problem through complete separation between the sexes, and my feeling is that permissive society is returning to those same places without admitting it. Anti-permissive terror is employed in order to keep permissiveness intact, and of course people are astonished when this fails again and again. Permissiveness places young people (and adults as well) in an impossible test, and demands of them the behavior of philosophers equipped with sophisticated interpretive tools while hormones course through their maturing bodies at full force.

I cannot help recalling the incessant mockery of my secular friends, so widespread some thirty years ago, of the benighted religious people who objected to a nice little pinch on the backside of a girl walking down the street, or to whistles expressing heartfelt appreciation for her readily visible intellectual qualities. Not to mention hanging pictures displaying those qualities on walls for all to see. And now we have arrived at hysterical "proper integration" regulations in the army, which are a direct result of this permissiveness, and at campaigns that try to stop the utterly natural products of the permissive approach. So the Haredim are, after all, a little right, but of course no one will admit it.[1]

Between seduction and rape

But all this is only a preliminary discussion. Beyond all this, it seems to me that one should distinguish between the claims regarding silence or hesitation and the claims about provocative dress. The common assumption among those leading these campaigns is that a woman or girl may dress however she wants, and that this is her private business. Such clothing, whatever it may be, does not permit anyone to harm her against her will. In principle I am inclined to agree with that view, apart from the question of the sexual message conveyed by clothing (which sometimes constitutes implicit consent, and that is what I discussed above). But another question arises here as well: to what extent seduction, even if it does not amount to consent, bears contributory responsibility for the rape that follows it.

The activists in these campaigns are shocked anew every time this argument is raised, but that does not stop them themselves from raising it in other contexts. When Jews go up to the Temple Mount and want to pray there, it is apparently perfectly legitimate for the Arabs there to riot, use weapons, stab, and murder them. Yehuda Glick (an astonishingly moderate man in my impression, who undergoes terrible media and political delegitimization that is probably utterly baseless), who has now entered the Knesset in place of the resigning Bogie Ya’alon, is perceived publicly as a mega-terrorist who stirs up riots on the Temple Mount. Simply a walking terror attack. For some reason people forget that the riots and violence there are perpetrated only by the Arabs. The Jews who ascend the Mount want to pray there, and the devotees of peace, tolerance, and fraternity among peoples (and of course freedom of worship as well) do not allow them to do so. When this claim is raised (very rarely, of course), these people explain, with admirable taste, that one must take Arab feelings into account, and that we should understand that they riot justly, for their feelings were hurt by the provocation of those ascending the Mount. To my mind this is merely one expression of the condescension and racism of the left, which treats Arabs as a kind of animal lacking self-control, from whom one cannot demand what one demands of Jews and of ordinary human beings who are responsible for their actions and control their emotions.

If Jews want to hold a march in Umm al-Fahm, the police will of course try to prevent them. After all, this is a provocation liable to lead to violence, and the victims will be the ones blamed for it (for clearly one cannot demand of the indigenous animals around them that they control their justified rage).

So who is to blame when the Arabs stab and rampage? Obviously, the provocateur Yehuda Glick, who goes up to the Temple Mount and causes all this agitation. The victim is the guilty one, for by his actions he brought it upon himself. How is this different from a girl who wears provocative clothing and brings the boys around her into hormonal turmoil, which sometimes erupts into sexual violence following an interpretation insufficiently thoughtful of her consent or lack of consent? Why is it that there the one at fault is the attacker (the rapist), whereas here the one at fault is the victim (the seducer)?

Wait a moment, and what about you?

Of course, the other side of the same question can be directed at the religious-conservative-right-wing camp (like me). On the one hand, you blame the Arabs and not the provocateurs who go up to the Mount, while at the same time you blame the girls who wear provocative dress and not those who attack them. Make up your minds: should the blame fall on the provocateur who became the victim of violence, or on the violent person who attacked him?

At first glance, both sides in this debate (right and left?) seem to fail through inconsistency. So which side is right? Why are both sides not behaving consistently here? Where is the sane voice?

A distinction between two planes

It seems to me that in all these issues it is important to distinguish between two planes. When examining a particular case of violence, clearly the attacker must be blamed (unless he was seized by an irresistible impulse. But that is not usually the case). The provocation, if there was such a thing, is at most a consideration for mitigation of punishment, but clearly it does not remove blame from the attacker. That is with respect to a specific assault on a specific person. On the other hand, when there is a social phenomenon that recurs on a broad scale, then we are not dealing with the problem of this person or that one. In such a situation society must examine itself. Beyond punishing the offender, it must also ask how to prevent the situations that are prone to such violent eruptions. If the phenomenon is broad, then we are not dealing with the reaction of an abnormal individual that requires local treatment of the violent factor. Broad phenomena involve normal people as well. But if a normal person reacts this way under the circumstances prevailing in our society, then one must also address the circumstances that produce that reaction, and not only the violent person himself.

Contrary to the Pavlovian reaction of various women’s organizations, the argument against revealing and provocative dress is a valid one, and it does not at all conflict with blaming the attacker. It is true that such clothing or any other does not justify violence, and it is true that if there is violence it is very important to deal with the one who causes it, but one cannot ignore the fact that the clothing is part of what brings it about. Therefore, in such cases one should address the violence and punish the one who uses it, but at the same time one should also try to neutralize the circumstances that produced that violence.

Women’s organizations and these campaigns insist on addressing only one side of the equation, the violent men. Every time a claim is raised regarding provocation, it is rejected with the argument that such a claim reduces the blame of the attacker. "My clothing is my private business and it does not permit anyone to attack me," they say. It is indeed true that no clothing permits anyone to attack any woman, but it certainly is part of what invites the attack. You bear some contributory responsibility, and it would be worthwhile for you to be aware of it. It cannot be that you demand the entire price required to solve the problem from others, without being prepared to bear part of it yourself.

There is also a statistical issue here. Suppose some provocation causes a violent reaction with a small probability, say 1/1000. Then if we are dealing with an isolated individual, there is no point in treating the situation itself, since the chance of violence is small, and if it happens one should address the violent individual. He acted in an abnormal way. But if the provocation operates in society as a whole, involving millions of people, then a probability of 1/1000 leads to the almost certain occurrence of quite a few cases. Is it still correct even in such a case to deal only with the attackers? After all, unlike individual human beings, a normal society is made up of many different kinds of people. And in an entirely normal way, a certain portion of them responds to such provocations with violence. Therefore, by the very fact that this is a situation involving many people, the abnormal reaction in effect becomes normal. And as such it requires treatment on both sides of the equation.

These same women’s organizations keep publishing again and again how broad and all-encompassing the phenomenon is, and how it does not depend on the type of people involved, the society, socio-economic status, ethnic background, and so forth. But if all that is true, then the obvious conclusion is that we are dealing with normal people and not deviants. And in that case one must address both sides of the coin and not focus only on one of them.

So who is right?

The conclusion is that, at least in cases of a broad violent phenomenon, there are usually two sides to the coin: the rapist and the seducer (who, contrary to what is customary in halakhic terminology, here stand on opposite sides of the divide). The rapist (the attacker) must bear the punishment, but the price required to prevent these acts should also be imposed on the seducer (the provocateur).

The difficult question is who is right, how much blame should be assigned, and at what price, to the seducer or the rapist. One may propose here three preliminary criteria for situations in which we will not assign blame to the seducer:

1. When, in our opinion, he has a right to behave as he does. For example, a person whose very existence constitutes a provocation to another is not required to bear a price in order to prevent the violence that the latter directs against him. Thus, for example, someone who thinks that it is a basic human right to ascend the Temple Mount to pray will not agree to impose part of the price of preventing violence on the Jews who ascend the Mount. Likewise, someone who thinks that a woman has the right to dress as she wishes will not agree that she should bear part of the price required to prevent violence. Someone who thinks that the Women of the Wall have the right to put on tefillin (phylacteries) and read from the Torah as they wish will not agree to grant legitimacy to Haredi violence against them. He will not accept the claim that their actions constitute a provocation that invites Haredi violence. Someone who thinks that homosexuals have the right to march in pride parades will not demand that they pay a price in order to prevent violence against them. But what about someone who does not recognize the right of homosexuals to march proudly everywhere? And someone who does not think that the Women of the Wall have a right to put on tefillin? Or someone who thinks that a Jew has no right to ascend the Temple Mount to pray? Such people will of course impose a price on the seducer and less on the rapist.

2. Sometimes it seems that the provocation is merely a pretext used to justify violence. The person (=the rapist) was not really hurt, but claims to have been hurt because he wants to use violence against the other side (=the seducer). Here too it is reasonable not to recognize that there was a provocation that brought about this violence, and to impose the price on the rapist rather than demand a price from the seducer.

3. When the price required of the seducer is high relative to the price required of the violent side. For example, if a person were to walk completely naked down the street, it is reasonable that we would not say that he has the right to walk as he wishes and that only whoever harms him will be blamed for violence. We would prevent him from walking in the street in a way that harms a large part of the public. Why? Because the harm to the public is substantial, while the harm to him is relatively negligible.

These criteria are two-sided. That is, in the opposite cases we will certainly assign blame to the provocateur (the seducer), and perhaps less to the person acting against him (the rapist).

Nozick’s paradox of inducement

This reminds me of the paradox of the American philosopher Robert Nozick. Nozick asked why the law forbids extortion but permits inducement. When I say to someone, "If you do X I will give you 100 shekels"—that is of course a completely legitimate statement. A kind of transaction. But if I say to him, "If you do not do X I will take 100 shekels from you," that is forbidden extortion. What is the difference? After all, in both cases I create a balance with a difference of 100 shekels in favor of the side I prefer. So why is one forbidden and the other permitted?

The answer is that if I take 100 shekels from him, I have violated a right that he has. By contrast, if I do not pay him 100 shekels, that is my right, and no right of his is violated. What is the difference between these two cases? There is a zero level relative to which we define whether I am taking from him or merely not giving to him. The property he has now is the zero level. That is the totality of rights possessed by each side. If I threaten to take something away from him out of that, that is forbidden extortion. By contrast, if I offer to add something to it beyond that, that is permissible inducement.

In our issue as well (the rapist and the seducer), there is a zero level, and it is the rights that each side in the dispute possesses. If the demand made of him infringes his rights, it is not legitimate. In such a case we will prefer to punish the attacker and leave the victim’s rights intact. But if punishing the attacker is itself an infringement of his rights, then we will not hesitate to demand a price from the victim as well. The disputes are, of course, about what the rights of each side actually are (whether a woman has the right to dress as she wishes, whether Jews have the right to pray on the Temple Mount or march in Umm al-Fahm, whether the Women of the Wall have the right to put on tefillin at the Wall, and the like).

Summary and conclusions

The upshot of all this is that the decision about when the price should be divided between the rapist and the seducer, and how precisely that division should be made, depends on quite a few background assumptions, some of them implicit and most of them far from simple. The questions of how legitimate each side’s actions are, how authentic the injury is, and what the significance is of the prices imposed on each side—all these are questions subject to disagreement and to fairly subjective assessment.

To see this, think for a moment about the case that was reported a few days ago (see here and here) that took place at the Faculty of Law of the Hebrew University. At an end-of-year party held for the students, several girls who wanted to dance behind a partition were not allowed to do so. There, in the very heart of the bastion of tolerant liberalism, a vote was held that yielded a majority against this "terrible provocation." This violent liberal terror, of course, won countless learned and hair-splitting justifications (idiotic and baseless, of course), and worst of all it also won a majority among the voters. It is horrifying to think that such scum are entrusted with the rule of law and values in our society. What is the problem? One could easily argue that by dancing behind the partition, the dancers are in fact forcing the public not to look at them. By what right do they prevent us peaceful academics from gazing at their bouncing intellectual charms?[2] If this argument, which combines extreme malice and a complete lack of intelligence, sounds reasonable and authentic to anyone, then it is truly hard to imagine how far arguments in disputes between rapist and seducer may go in cases that are less clear-cut. It seems that everything depends on one’s point of view (and no less on the malice and violence with which one conducts oneself).

This is indeed a simple case of violent coercion with no justification whatsoever. Clear case. But it is also not a case of rapist and seducer, but merely of secular coercion. The other cases mentioned until now, by contrast, involve a side of rapist and a side of seducer, and they are not so simple. I have a position regarding all the examples raised here, but I do not have a sharp and universal criterion, and I certainly do not know how to persuade readers to agree with me in all these cases. I only hope that at least I have managed here to show that the problem is quite complicated, and perhaps these remarks will move people to try to plumb the depths of the other side’s psyche and to avoid the shallow, flat discourse so common in our parts. In all these debates each side is convinced that it is self-evidently right and that the other side is simply speaking nonsense. One says to the other that he is an attacker, and the other answers that he is a provocateur. In fact, in many cases both are right: this one is indeed an attacker (a rapist), and his counterpart is a provocateur (a seducer). And still, the question of what conclusions follow from this depends on our assumptions regarding the sides’ initial state of rights. It is not enough to determine that there is provocation or aggression here in order to reach conclusions. If we put the hidden assumptions on the table, there is at least some chance of conducting an intelligent and perhaps even constructive discussion of such problems.

[1] Clearly there are costs to insularity as well. It sometimes leads to grave acts being done in secret, and prevents courageous treatment of such problems when they arise. I am not preaching a Haredi approach here, not even in this area. But there is certainly room for greater balance on the question of permissiveness. One should not take it for granted and deal only with plugging breaches so that the whole dam does not collapse. Sometimes it is worth considering bringing down the dam itself.

[2] Afterward I read that the organizers of that corrupt party sent an apology to Muslim students who could not participate in the party because it was held on some Muslim holiday. Enlightened and considerate liberalism, as we said?