Enquiry

The Massachusetts supreme court says “no.” The case involved a man who had sex with his brother’s girlfriend by entering her bedroom with the lights out, pretending to be his brother. The court decided that the law has “for two centuries defined rape as sexual intercourse by force and against one’s will and that it is not rape when consent is obtained through fraud.” The court said the legislature would need to change to the definition of rape. Given that the same court found there is a right to gay marriage without awaiting legislative change, this reasoning strikes me as rather inconsistent.

My view is that, whether it is called rape or not, obtaining sex through fraud is a serious crime. Perhaps it is not as bad as using force, just as swindling someone is not as bad as directly using violence to obtain money, but it still deprives the person of the ability to make her own choices.

Although justice was not served, it is possible the court was correct insofar as having its hands tied by the legislature. Under our system the “lawmakers” in the legislature are supposed to be the source of law, so if they haven’t made the law, then it doesn’t exist.

This case illustrates the uselessness of the legislature. The legitimate function of courts is to discern justice, with justice seen as existing independently of any one person or group’s viewpoint. Having to rely on the legislature to create good law (and avoid creating bad law) impedes the courts’ ability to do justice.

The obvious objection is that we need a division of power; we do not want judges to have total discretion in deciding law. That is a good objection, but it would be a non-sequitur to infer a legislature is needed to supply the courts with law. Eliminate the legislature and establish competition between courts, so that judges must be fair, impartial, and respectful of people’s rights in order to protect their reputations.

Technorati Tags: law, philosophy, rape