Understandings: A Case In Point

     “When you break the big laws, you do not get liberty, you do not even get anarchy. You get the small laws.” – G. K. Chesterton

     Any agreeable society will be held together mainly by customs and conventions that don’t have legal force. Such customs and conventions are patterns that arise from the general understanding of the way things must be. Sensible people wouldn’t want those understandings made into laws, for several reasons:

• The intrusions into privacy;
• The offenses against dignity;
• The destruction of mutual respect and good will among men.

     Consider sex in this connection. Now that the foofaurauw over “consent” has moved into legalistic terms, it’s proved impossible to settle. In particular, no one can be certain that his sex partner won’t regret the act afterward...and according to the “angry ugly girls” (Duyen’s classic phrase), regret retroactively nullifies previously given consent. Therefore, regardless of any degree of prior negotiation, no man can be sure he won’t be accused of rape in the light of the morning after.

     If you’re the sort that gets a kick out of frustration, try to compose a law that would adequately define “consent” as it would apply to a typical sexual encounter. Even if it were possible, it would be many thousands of words long and fatally riddled with ambiguities that would demand “clarification” by the courts...a process that cannot be relied upon to end, much less to clarify. It might have a single title and a single entry in the United States Code, but in fact it would be an assemblage of dozens, perhaps hundreds of “small laws.”

     The 1936 “Murder at Beekman Tower” case against Laura Parr, for the murder of her former lover Dr. Fritz Gebhardt, provides an interesting contrast. Parr had gone to Gebhardt’s apartment at his request. While she was there, unaccompanied by any other adult, he overpowered her and forced himself on her. Much of her defense was that he was about to force himself on her a second time when she killed him. The prosecution contended that her presence in his apartment invalidated that defense. In other words, by going alone to the apartment of a single man with whom she had previously had sex, she had implicitly consented to sex with him. (Parr was eventually acquitted, on the strength of her claim that Gebhardt was about to sodomize her, a felony under New York State law. The case is discussed in more detail and with great drama in Courtroom, Quentin Reynolds’ legal biography of fabled defense attorney Samuel Leibowitz.)

     Though introduced in an unsuccessful prosecution, the argument that an unchaperoned woman’s presence in a single man’s apartment constituted consent to sex was the common understanding at that time. It was repeated in New York’s divorce law, which defined adultery – the sole grounds for a divorce for many years – as inclination plus opportunity. Note how the earlier understandings of both those things were essential to the definition...and how they would surely fail of close scrutiny today.

     This is on my mind due to this article by Joanna Williams:

     It seems that no discussion of sex and relationships can take place nowadays without the issue of consent dominating. Yet the understanding of consent as a process of explicitly requesting and granting permission prior to engaging in sex is a recent and worrying development. It suggests that formal rules should dictate private relationships and that passion and spontaneity should be jettisoned in favour of sticking to a rote-learnt script. As such, the particular focus on verbally given and repeated consent sets an unrealistic standard for most sexual relationships. It encourages the perception that sex that is not preceded by formal negotiations is rape. Rape becomes redefined as sex that was unwanted and regretted, even if this was not communicated at the time. The preoccupation with formal consent has been driven by feminist campaigners and it reflects their contempt for ordinary people.

     Numerous writers have ridiculed this notion of “May I touch you here?” at every step in the course of a sexual encounter. Yet this is what a society gets once the understandings that were once taken for granted are discarded, and the law attempts to take their place.

     This, of course, is only one case of the failure of our common understandings. There are many others. Time was, it was taken for granted that a drunk got that way by his own choice. Today, he can sue the bartender who served him, whether his inebriation was visible or not. Time was, it was universally assumed that parents accompanied by small children had an obligation to keep their kids in line, no matter where they were. Today, parents routinely allow their brats to disturb the peace in restaurants, supermarkets, waiting rooms, and the nave of the church, and may God help the bystander who decides to intervene. Time was, when Smith stuck his hand into the thresher to clear it, the loss of that hand was taken to be his fault for arrant stupidity. Today, seven figure lawsuits over such things are commonplace.

     As each of our understandings – the customs and conventions that preserved the private character of the overwhelmingly greater part of our lives – has fallen before the assaults of the professional victims and their lawyers, the law has become ever more ramified, ever more opaque...and ever more subject to interpretation by judges eager to expand the scope of their powers or attract praise from the press.

     Small laws, meant to substitute for fallen understandings, multiplied beyond all bounds, can tangle a nation into immobility. Food for thought.