A Humorous Interlude

I interrupt this serious discussion for something more light-hearted. However, it is not entirely unconnected with the theme of my recent posts. Critics of the criminal law, especially pro-defendant lawyers, often have a tension between their discomfort with anything which seems to give more power to the state and a reluctance to be seen to be sympathising with murderers and rapists. This is often resolved by obsessive over-analysis of the legislation in an attempt to find some flaw, no matter how ludicrously implausible. Nowhere is this clearer than in the case of sex crimes so here is my top three most ridiculous hypothetical questions posed regarding the Sexual Offences Act 2003:

Firstly, the 'Textbook on Criminal Law' by Michael Allen, asks,

'A and B agree to have vaginal intercourse with A entering B from behind. A is inexperienced and in the dark by mistake slightly penetrates B's anus... Must the prosecution prove intentional penentration of B's anus or simply intentional penetration of B?'

I suspect that this example from Smith & Hogan can only be properly understood by visualising it and thinking about it for a long time.

'Would soaking B's flimsy T-shirt be a sexual touching? Does A have to be holding the implement that touches B?'

But the winner has to be this gem from the BPP Criminal Law Manual, which threatens to undermine the whole institution of marriage.

'Do you that a defendant who has sexual intercourse with a man who is indifferent as to whether or not sexual intercourse takes place is guilty of rape?'

However, lest it be thought that I am rampant Daily Mail reader with a 'lock them up and throw away the key' attitude, there is one place in which I think that the drafting of the legislation is unnecessarily wide. This is found in section 69 (good number), which concerns intercourse with an animal. To be guilty of this offence you must have sex with an animal and intend that what you are having sex with is an animal or, rather bizarrely, be reckless as to whether what you are having sex with is an animal. How the latter is possible is beyond me. They seem to be worried about the 'I thought it was just a woolly person' defence.

Law - What is it Good For? Part 2

Another myth about the purpose of law is that it only exists to restrict the actions of other people. As citizens, we also use it to regulate our own behaviour. This may sound bizarre but some reflection shows this to indeed be the case. Consider, for example, taxation. Those of us who support income tax do so because we believe that wealth should be distributed in order to benefit people who are less well off than ourselves. However, if tax were abolished, do any of us really think that we would voluntarily give up to 40% of our wealth to poor people, as nineteenth century anti-tax libertarians argued that we could? Of course we would not. We know that we need state regulation and the fear of imprisonment to make us do what we already believe is right.

A useful analogy is Alcoholics Anonymous. People who seek support from the AA do so precisely with the intention of having their choices challenged by other people. Superficially, they are agreeing to have their liberty restricted but, at a deeper level, the main threat to their genuine freedom is the drinking itself and hence they are actually increasing their options. People cannot be reduced to straightforward desires but rather are subject to contradictory wants competing for attention. Sometimes it is necessary for the higher rational part of the brain to get help from others to conquer more selfish tendencies.

This example may seem an extreme one that affects a minority of people but we all look for such support from our circle of friends in various ways. Among a crowd of ethical consumers, it is common for them to share information about the pratices of various corporations and about which brands are owned by whom, but also to remind and fortify one another to stick with the often difficult time-consuming path of hunting for alternative sources of goods. It is only a small step to asking the state to play a role in making the tainted brands less widely available and the friendlier ones more so. Just as we delegate our education and wealth distribution to the state to allow it to be more effective, we can also do the same with our economic priorities.

I recently booked an absurdly cheap weekend break to Prague, with a budget airline, after which I will have taken seven flights this year. I feel a bit guilty about this and someone with more environmental willpower would clearly not have made this decision. Perhaps that is why I support the higher taxes on aeroplane fuel recommended by the recent Stern Report. Undoubtedly, this is a massive abdication of responsibility on my part, and I acknowledge that fact. Nevertheless, I am confident that my view is the one with a more realistic approach to human behaviour. In the end, even Foucault acknowledged that the freedom to submit to one's own baser instincts is no freedom at all.

Law - What is it Good For? Part 1

Before you ask, I do not think that the answer is 'absolutely nothing'. For many libertarians, the law should have a very limited role to play in society. The argument runs that any regulation of the behaviour of citizens should have widespread support before being introduced. This is a crucial democratic principle and is entirely sound. However, the reasoning then concludes that any law which does have such support will not require enforcement and so need not be introduced. This is where I part company. A curious example is the recent decision by the government to abandon the reform of faith schools, to ensure that 25% of pupils will be drawn from non-members of the religion. It was suggested that the voluntary agreement of the schools was sufficient to bring about the change. There are a number of problems with this approach, the first of which concerns the issue of enforcement itself.

It is a complete myth that laws are only worthwhile if they need to be enforced. A key purpose of the law is certainly to impose penalties to discourage undesirable activities but this is not the only purpose or even necessarily the primary one. Another function is to express the values shared by a particular culture. If we regard the change in the composition of faith schools to be a statement of our commitment to religious diversity, then it will be a beneficial law, even if it makes no material difference to the way in which our education system is run.

Another role for the legal system is to provide guidance to people as to how to live their lives. This may seem patronising but there are, in fact, many ethical ideas inherent in the law that are not widely known or publicised, disability rights being a good example. For employers who strive for best practice (possibly a minority), the requirements set out in statute are surely invaluable. The importance of guiding citizens can sometimes make it useful to have a law which is widely broken, and which it would not actually be desirable to enforce. A nice example is the age of consent. We do not want fourteen-year-olds to be arrested for consensual sexual activity but it is also clear that to lower the age of consent would send completely the wrong message.

Many defenders of the bill to criminalise the incitement of religious hatred pointed out that, like its cousin regarding racial hatred, it is likely that it would have been seldom used. Its opponents, including Polly Toynbee, countered with the argument that there would then be no point in introducing it at all. I strongly disagreed and I continue to do so. Ironically, Toynbee supported the new law on religious schools - she is a secularist rather than a libertarian - but, for me, they raise essentially the same issues. It is increasingly urgent that we define ourselves as a country which does not use religion, or the lack of it, as a barrier to co-operation and understanding. It is equally vital that we send this message to those who would seek to inflame tensions.