“Asking for it”

by scotslawstudent

It’s very important to note that the full facts of the Israel Flotilla situation are not clear and it is unlikely, given the amount of emotion that it has generated, that it will ever be fully known. I wasn’t on the ship so I have no idea what went on but I do await an independent inquiry. Personally it stinks to me, there are a lot of broad criticisms that “international law isn’t real law” but that doesn’t apply here, the two big areas of international law that are enforced and people follow are how to treat diplomats and how to treat shipping. No one ignores Vienna because you don’t want your own diplomats hassled in return and the same applies for shipping. You have to go a really long way to be able to justifiably board foreign flagged, civilian ships transporting aid to your enemy. It’s a presumption that shipping shouldn’t get messed with and really you have to prove why you should be able to rather than other people proving you shouldn’t.

That said, I think it is weird that so much is made about if the ship should have been there or not. The implication seems to be is if the ship shouldn’t have been there, if what it was carrying was bad, its mission was inflammatory or if they were violent when boarded then the boarding, shooting etc was justified. I think firstly that last one’s arguing from the consequences but secondly the earlier ones are also forms of the they were asking for it defence.

It’s a strange argument that crops up in quite a few areas – for example non-consensual sex is often “distinguished” from rape on the basis that the victim was asking for it. I’m not convinced this is much of an argument, even if you really were asking for it. In consent based crimes literally asking for it’s a pretty good legal place to be (this is called giving consent) but, for example, if it’s dressing provocatively then it’s not really you asking for it. In intention based crimes it’s even less helpful – a bank robber who kills a hostage who says “shoot me instead” isn’t going to get off. The idea is simply that a bank robber shouldn’t shoot anyone whether they’re asking it for it or not. Part of living in a functional society is learning to not shoot the people you think are asking for it because eventually everyone would get shot at least once (even if just in self defence).

In this case the formal name for the asking for it defence is a red herring – it diverts attention from the original question. The answer to “was Israel right to have landed soldiers on the ship” isn’t “what was the ship doing there in the first place?” it’s really a qualitative opinion along the lines of “yes” or “no”. Similarly “was X right to have non-consensual penetrative intercourse with Y” isn’t answered with “did Y accept a free drink from X?” It’s fairly subtle and superficially seems on topic but it’s a digression all the same. The ethical guideline is that you don’t get to do bad things to people just because they’ve done bad things themselves, and logically if that was the case that would just mean that other people are allowed to do bad things to you (and no normal person thinks this). This is the general argument for why burglars don’t leave their human rights at the door.

That’s not to say that asking for it is not a good argument in some cases. It is an established principle in delict (tort if you’re a big silly and aren’t Scottish) that no actionable injury results from one who puts themselves into a dangerous situation and sustains reasonably foreseeable harm (so, for example, if you are injured during a tackle while playing football you can’t sue the other player whereas if he pulls out a gun and shoots you you can). So if you actually are asking for it you generally can’t sue for damages later on. Where you can pull it out is quite limited, by virtue of being a consent based defence, because it’s not enough to just know it’s dangerous but you have to actually consent to being hurt and that’s quite tough. Generally people use contributory negligence to be an easier form of this. It’s of limited use in criminal law and, for example, there are a large number of cases where wholly consensual sadomasochism was judged to be ABH (and in R v Brown the victims were even judged to be aiding and abetting their own actual bodily harm, which possibly reflects attitudes to homosexuality rather than, y’know, justice)

The interesting thing about this is that the asking for it defence isn’t even a particularly thorny issue and if you ask them directly people generally accept that raped women don’t actually ask for it, but that it is so intuitively attractive. People like a good guy and a bad guy and stories where both people are, if not actually as bad as each other, at least lacking clean hands are just depressing. We like to go “well, that burglar shouldn’t have been robbing the house, give him both barrels” when really it’s important to stop and say “why should the other man have given him both barrels?” This is why people like making up brutal things to do to paedophiles or terrorists, it’s easy.

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