Q&A: Contributory Fault in Cases of Sexual Assault
Contributory Fault in Cases of Sexual Assault
Question
Hello Rabbi.
You’ve written quite a bit about the idea that contributory fault can be attributed to victims of sex offenses who engaged in sexually provocative behavior before the assault. At least that is how I understood your remarks; please correct me if I’m mistaken.
In any case, I have a few questions about this:
What, in the sexual context, counts as safe behavior in your view? If a woman dresses revealingly, but does not initiate any sexual contact, and is attacked in the middle of the street—is she, in your view, partly at fault? Or perhaps partly at fault to a lesser degree?
If so, a follow-up question: would a Black man in the 1950s, walking in a white neighborhood in the United States and then attacked, also bear contributory fault in your opinion? My point is that when the moral norms are corrupt and lead to physical assaults, the problem is not the victim’s behavior but the corrupt moral norms.
Contributory fault is a legal term, so I’d be glad to discuss it using legal tools. Contributory fault is assigned to the injured party when he or she failed to take reasonable precautions under the circumstances. Are reasonable precautions, in order to avoid sexual harassment—that is, to avoid unwanted contact with my body—dressing in a certain way? In my view, that is not reasonable. It is reasonable to expect men in a human society to restrain themselves, even in the face of certain sights, of any kind. In my opinion, it is entirely reasonable to expect men not to force themselves, in any way, on other people. And if human biology makes that difficult—then it should be trained through strict social influence, not accommodated by restricting the victim’s freedom.
I’d be glad to hear your view.
Sabbath שלום,
Tair
Answer
I don’t know how to give a precise criterion. There is behavior that seems reasonable and behavior that does not. But it seems to me that everyone would agree that there are cases in which the victim bears contributory fault and cases in which the victim does not. So the question of the criterion lies before all of us, not only before me. Only someone who is unwilling to recognize contributory fault at all is exempt from proposing a criterion. In the past I have already pointed out that even great liberals see ascending the Temple Mount or a march by Kahanists in Umm al-Fahm as a provocation that justifies Arab violence, but they are not willing to hear that a sexual assault victim may bear contributory fault. [Incidentally, there is a difference between the two situations. Among Arabs the violence is deliberate and intentional and receives social legitimacy, even from the Jewish left, whereas sexual violence is usually the result of a violent instinctual eruption that is very hard to overcome.]
The distinction will depend, among other things, on the question of what we consider reasonable and sensible conduct, or even a basic right that it is not reasonable to demand that a person give up. In my view, walking around exposed is not a basic right, since it is not so difficult to cover up a bit, and therefore I see such conduct as contributory fault. But of course, what seems reasonable and what does not, what is a basic right and what is not—those are questions that depend on social norms. My claim is against the social norms and not necessarily against this or that particular woman.
It is important to understand that there is a complex interdependence here between facts and norms: norms determine what is reasonable and what it is not legitimate to demand that people give up, and from that we determine guilt and responsibility for what happened (the facts). But the actual outcomes and the risks that arise from them also take part in shaping the norms. What I mean is that if there is a violent situation that, in the existing social atmosphere, people are unable to overcome, that is one of the indications (of course not the only one) that it is reasonable to demand that people give it up (that this is not a basic right and it is legitimate to require avoidance of it). If sexual impulse and violence are such that, under present patterns of conduct, people are unable to prevent acts of sexual violence, that is an indication that we should examine whether such conduct is reasonable or whether it is right to demand that it be given up, and to see one who does not give it up as someone who shares part of the blame (contributory fault). The contributory fault is also on society, which sets the norms, and not only on the individual who acts in accordance with them.
And incidentally, even in the legal world there are no criteria for contributory fault. The criterion is reasonableness (the proportionality of the demand in relation to the severity of the risk and its consequences).
Discussion on Answer
1. Those are not criteria. The reasonableness test depends on the question of what reasonableness is and what is reasonable. That is exactly what I wrote: reasonableness is in the eye of the beholder and according to accepted norms. The fact that most women dress however they want and are not attacked proves nothing. The question is whether there is too large a number of cases that justifies demanding that women not dress however they want. And again, that is in the eye of the beholder.
b. The question is how powerful the drives are and to what extent a person can control them. Beyond that, even if the drive to eat were of similar intensity, it does not involve harming others and its consequences are not so severe. Therefore that comparison is not relevant.
Bottom line, 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 remarks above. The question is not one of majority and minority but of how many cases there are and whether we are willing to live with them. Beyond that, I do not know where you get the claim that the published statistics are false. There are many sources reporting very large numbers (not necessarily of rape, but of harassment at various levels), and that is what I hear from almost every woman.
And one more comment. It is hard to compare different societies because there are several parameters that distinguish them, and therefore it is hard to isolate the effect of style of dress and sexual permissiveness on the number of cases of sexual violence. So such statistical comparisons are not really relevant to the discussion. The fact is that a woman’s manner of conduct arouses men more or less, and that is hard to deny. Therefore, as a matter of reasoning, it seems to me that this is also an accelerant for cases of violence (which of course lie at the extreme end).
To conclude, I’ll just repeat that the main point of my last column was not on the factual plane but on the logical plane. You cannot treat sex as something banal and then cry out as if there were an injury here to the deepest soul and the depth of intimacy.
Hi, thank you for the quick and matter-of-fact reply, as always.
I assume you don’t have extra time for a prolonged discussion on the subject, so I’ll just leave a few comments on your response, if only for the sake of the readers:
1. I’ll start from the end, regarding your distinction that even in the legal world there is no criterion for determining contributory fault. I’m not a lawyer, but I’m somewhat familiar with the case law on the subject, and the truth is that, as with any legal doctrine, tests have also been established in the case law regarding contributory fault, and those can be called criteria. Of course their application changes according to the circumstances, but generally speaking there are two of them: a. The reasonableness test, as you said. Would a more reasonable woman have been more careful and dressed more modestly? In my view, when the question is asked this way—that is, as a factual question—the answer is absolutely no. Reasonableness, as you correctly described, is closely tied to the social norm. And therefore there is no irresponsible behavior here, since most women dress however they want and are not attacked.
b. Another test examines the behavior in light of morality, meaning the consequences that the allegedly irresponsible act has with respect to others. I would have a very hard time finding the negative consequences that wearing shorts has toward another person, with all due “respect” for the sex drive. There are other drives too, like the drive to eat, and I imagine no one would assign contributory fault to a pastry chef whose desserts were stolen.
I know you addressed the legal point only in passing, but on second thought, we are dealing here with harm—sexual assault—so it makes sense to discuss it from a legal angle.
2. You argue, as I understand it, that the contributory fault is with respect to the social norm. I really have trouble understanding how one can disqualify a norm because of cases that are relatively exceptional. Or in simple terms: most women in permissive society are not sexually harmed, contrary to the false statistic that is spread today. It is complete nonsense; if you want, I can attach references, but rape cases in middle- and upper-middle-class societies are rare.
Sexual harassment is an area that cannot really be examined empirically at all, in light of the “anything that subjectively makes you uncomfortable is sexual harassment” approach.
What I mean is that in the past society was less permissive, and you found no less sexual violence there, if not more. From this it follows that there is no evidence of any problem with this norm, at least not from the moral standpoint.