Rape culture and The 40 Year Old Virgin

The decision to allow disgraced footballer and convicted rapist Ched Evans to train with the League One club Sheffield United has given way to understandable controversy. The player was released last month after serving half of a five year prison sentence, having failed to secure an appeal. The rape conviction, which is not spent until 2017, concerns a 19 year old woman who was deemed to have been too intoxicated to give consent. Evans and his supporters have all along refused to give credence to the rape charge and conviction. Now that he is released, his supporters claim that he deserves the chance to return to professional football. After all, the alleged rape was "non-violent", and he reasonably believed that consent was granted.

There are many problems with this of course. First, the offence of rape is always a violent crime. This does not require physical force. Second, the crime is against personal autonomy. If a man (under UK law, only someone with male anatomy can commit rape) engages in sexual intercourse with someone who is unable to give consent, then consent is absent. This is true even where the person regains the faculty to consent and decides that they would have given consent at the time. It is that simple. Sexual intercourse absent consent is the crime of rape. Third, and for our purposes last, Evans has not atoned for his crime. He continues to deny it. He can therefore not be considered rehabilitated, especially while the conviction is active.

Ched Evans will likely never admit guilt and will instead continue to try to clear his name. Following his release from prison, the Criminal Cases Review Commission announced that they would fast-track a review into his conviction. It is therefore at least possible that Evans' conviction will be overturned. In the meantime, it would be foolish for anyone to employ him, let alone reinstate him as a role model for young men and boys. His victim has several times been named, in contravention of the Sexual Offences Act, and has had to relocate twice.

Some, I daresay many, men seem to have a real problem accepting that it is possible to think you have consent for sex, but consent could not be given, and that this is in fact rape. This is despite that the law is quite clear on the matter. Why is this so? I suppose there is a cultural tendency to excuse this form of rape as normal, socially acceptable behaviour. I recently watched the film The 40 Year Old Virgin again with my wife. We both love that film. It's one of our favourite comedies. I have to say though that I was really struck this time by its apparent apologism for rape culture.

There is a scene where the protagonist Andy, played by Steve Carrell, is out in a night club with his male friends, who are attempting to instruct him in picking up women. The goal is to get him laid for the first time in his life. He is advised to go after "easy" drunk women, and indeed he does leave with one. She turns out to be so habitually drunk that she has a court imposed breathalyser integrated into the ignition of her car. Hilarious! Andy is turned off when she spews a half digested daiquiri all over him.

In another scene, we see Andy in the home of Beth from the book store, played by Elizabeth Banks, who is also recklessly drunk. Andy decides he can't go through with it, but his pal Cal, played by Seth Rogan, is there to step in. We do not see the rape occur, but are left to assume it did. That's right. This is rape (or at least sexual assault), and quite clearly so. Andy might have reasonably imagined he had consent, but Cal couldn't claim that. He took advantage of Beth's compromised state.

What am I trying to say? Is The 40 Year Old Virgin a horrible misogynistic film that should be shunned and condemned? Are the cast and writer/director Judd Apatow terrible people? No. I still think The 40 Year Old Virgin is a great comedy. Andy never takes a wrong step. His friends are mostly portrayed as character foil grotesques. One is an obsessed stalker who cannot let go after being dumped by his girlfriend years earlier. It is not trying to teach morals, but even if it were, we come away thinking it's better to be kind and gentle.

But maybe we should cast a more critical eye over the portrayals of drunken pickups in mainstream culture. Does this type of story normalise date rape? Perhaps it does feed into the notion that many men seem to have about it. I saw a tweet today from Greater Manchester Police, which I have to say is refreshingly enlightened:

Drinking is not a crime, rape is. #NoConsentNoSex pic.twitter.com/wPQRWZW6dB
— G M Police (@gmpolice) November 12, 2014

I was dismayed though when I read the first reply, which states...

but what about them girls who consent. Then "cry" rape.

This is the trouble, you see. "Them girls who cry rape" afterwards did not consent. That is to say, if the woman was incapacitated at the time, you can assume you did not have her consent. This can be hard for a guy to deal with after he's paid for a nice dinner and a movie or pulled a really hot bird in a club. But if guys can get their heads around the fact that sex is not their God given right and that there is a real risk, yes risk, that they might actually rape someone tonight if they are not careful, then perhaps we can make some progress dispelling these rape myths.

We (mostly) all understand that "no" means "no". But those of us who may find ourselves in the position of risking rape would do well to be reminded that we also have the power to say no (to ourselves as much as anyone). Sleep on the couch. Who knows? Perhaps you'll get lucky in the morning.

Some people may take offence at my suggestion that guys are risking rape when they go out on the pull. Please don't get me wrong. This is not some oblique attempt at victim blaming. But I do think guys really need to be aware of how easy it is to become a rapist, though they might never think themselves capable of it.

Drink and drugs impair judgement, but this is no more an excuse for rape than it is for domestic violence or drink driving. You may not think you're too drunk to drive, but if you do it you're still a DUI. And if you kill an entire family as a consequence of it, you deserve all you get and more. If you had too much to drink or took drugs and did not possess the clarity of judgement to realise that a woman was not in a position to give consent, then you might as well have got out your car keys instead of your room key.

Samaritans Radar - good or bad?

TL;DR: Bad. A nice idea, but horribly implemented, causing more problems than it aims to solve and probably illegal.

The time has come for me to write my Samaritans Radar blog post. Others have already said much about it and I don't think I need to repeat that here. The moment I heard about this new offering from suicide prevention charity Samaritans, I knew it was a terrible idea. Samaritans Radar is an app that Twitter users can download and install, which allows them to become "good Samaritans" by monitoring the tweets available in their timeline provided by the accounts they follow, looking for key words and phrases suggesting the tweeter may be suicidal, and then sending email alerts to the subscriber about flagged tweets.

This is done without any of those tweeters' knowledge or consent. In fact Samaritans make it clear that they protect the privacy of the app's subscribers and will not reveal to their friends that they are being monitored.

The decision to deploy an app like this, which focuses on the rights and choices of the bystander rather than the potential person in need, is a baffling one. The Samaritans service typically involves a distressed person phoning their hotline to speak confidentially to a trained volunteer who tries to talk them down from the ledge, so to speak. The Samaritans have built up a cache of trust as experts in suicide prevention, and it is well deserved.

But with their latest offering, they have sadly lost sight of their mission and jeopardized their hard earned status. The problem is that this amounts to surveillance of, among others, the mentally ill. Mental health sufferers and privacy advocates have been up in arms since the announcement of the new service last week. The response from Samaritans to the criticism has been the most disturbing aspect of this tale.

At first the Samaritans Radar spokespeople dismissed privacy concerns as coming from users who do not understand how Twitter works, noting that anything their service flags up is publicly available on Twitter anyway, and that any follower would have been able to see those public tweets. They just might not have been paying attention at the time.

When users tried to explain that privacy is more complicated than that, Samaritans stubbornly stuck to their guns and downplayed the negative feedback as the mutterings of a handful of privacy extremists. They did make one concession, which is to provide an opt-out feature for users who send them a message request. This is something that frankly would have been expected from the very start at a minimum. The opt-out failed to quell the criticism.

One week on, and Samaritans have taken legal advice that the Samaritans Radar service operates within the law of the United Kingdom, particularly addressing issues raised about the Data Protection Act 1998. The advice that the company has communicated is astounding. Samaritans believe that they are not bound by the Data Protection Act because they are neither a data controller nor a data processor (who then is?). If the Samaritans were deemed to be a data controller, then they believe they satisfy the "vital interest" exemption allowing them to process sensitive personal information without consent. Information practitioner Jon Baines demolishes that position in his Information Rights and Wrongs blog.

Perhaps even more astounding is that Samaritans are taking legal advice and continuing to defend their controversial new service in the face of very sharp criticism from some of the very people they claim to be attempting to help. Many mental health sufferers who have turned to Samaritans in their past need have stated they no longer trust the Samaritans with the information they might provide. Others no longer feel safe speaking earnestly on Twitter about their conditions. Some have already left, thereby abandoning what might have been a vital outlet for them.

Technology journalist Adrian Short started a petition to have the app shut down. At the time of writing it has nearly 1200 signatures after four days. Short has indicated that he is considering a law suit against the charity if they continue to refuse to budge. I cannot imagine how Samaritans will attempt to justify to its patrons and donors the risk and expense of going to court over this untested and unproven offering.

I had a lengthy dialogue today with a Samaritans volunteer who had tweeted that he couldn't understand the bad reaction, but the app is worth it if it saves even one life. I think I managed to persuade him that there are many problems with the app that would be best solved by pulling it until it can be reworked. The feeling on the street is that it is causing actual real harm just by its mere existence. I laid out the following points:

1. Monitoring people with mental health issues looking for signs, tends to make them feel more exposed, therefore worse.
2. Many forms of mental illness are joined by paranoia. The mere confirmed existence of surveillance causes anxiety.
3. Not all interventions are helpful. A sufferer should be able to choose someone s/he trusts. Trust has not been respected.
4. There are people on twitter who enjoy tormenting mental health sufferers. This app is a gift to them.
5. It feels like the app is making judgments about people. Suicidal people are not helped by being judged, and that's not what the Samaritans do.

That's a start. There are many other issues, but I don't want this to be too long. We agreed that there appears to be some inexperience of the medium among the decision makers at Samaritans and that they may have rushed into this solution without sufficient understanding. There was a similar offering deployed into the Facebook ecosystem which seems to have been much more successful.

Perhaps the people behind the Twitter offering failed to appreciate that Facebook's trust model is very different. There is a fairly clear concept of friendship in Facebook. That is the foundation of its relationships. On Twitter, the relationship between an account and its followers is not at all clear. If you were going to try to emulate friendship, the best approach would be to add a constraint of mutual following, but even this falls short.

By simply allowing any follower to act as a potential intervener, Samaritans have violated the trust of the users who have no real control over who might get to receive alerts, apart from locking their accounts and dismissing all of their followers. That would be rather pointless.

There is also the question of whether this is even legal. Information law experts tend to agree that it runs afoul of the Data Protection Act. Reading paragraphs 56 and 69 together from the ICO guidance on the processing of sensitive personal data, we can see that the Samaritans cannot claim to have obtained consent from users (which they have not claimed) and that it is hard to conclude that they would not need it (which they have claimed).

It is therefore unsurprising that they have put forward the legal position they have. The best bet to get them off the hook is to claim not to be bound by the Act at all (as they have done), but they have not offered the advice they were given, and the view is frankly unsupportable. And if they are not the data controller, then who is? The subscribers perhaps? They might like to know they may be breaking the law.

If that argument fails, then the Samaritans suggest that they (and I suppose their subscribers) are exempt by reason of vital interest. It's really all they've got, but it's extremely weak. As Jon Baines points out, the app is delivering a large number of false positives, and there is simply no basis to conclude that untrained people in receipt of these alerts would be able to have any net positive effect on a person's health prospects. You could say this is a matter of life or death. All the more reason to proceed carefully, considering a random stranger even with the purest intentions could make the situation a whole lot worse.

Conclusion: if the Samaritans wind up in court they will surely lose, and for what? They seem willing to sacrifice their hard earned reputation for the theoretical possibility of saving one person's life. It is naive and foolish. The charity's attitude this past week has been arrogant and condescending. They are refusing to listen to the concerns of their potential clients, many of whom have turned their backs on what was once a trusted ally. I do hope the Samaritans wake up to sense before irreparable harm is done either to themselves, or worse, to someone who is truly vulnerable.

EDIT 2014-11-07 10:20:
There's something I forgot to say in my original post. There is an interesting issue highlighted around the muting of Twitter accounts. Twitter offers a Mute feature similar to its Block feature, but with some key differences:

• An account that is muted is not made aware of this in any way. It is still able to follow the account that has performed the Mute and to see public tweets from that account in its timeline feed.
• A muted account can be followed by the account that performed the mute, in which case mentions from the muted account will be seen. Otherwise there is no interaction visible to to account that performed the mute.

Because the muted account is not aware it is being muted, the API does not communicate this fact. Therefore, a muted account would be able to receive alerts like any other follower. I can't imagine anyone being comfortable with this. Furthermore, that muted account which is not followed back has no way to directly intervene. Mute was introduced by Twitter as a compromise after it unilaterally changed the way that blocking worked so that it would be silent to the blocked account. This was an effort to calm the blow ups and pile ons that tend to happen when people react to being blocked.

I couldn't understand the negative reaction at the time, but now it makes perfect sense. People who had been stalked in the past felt aggrieved that they would no longer be able to stop people following their public accounts or appearing to interact with them. Twitter got that horribly wrong and they fortunately relented. Had that not happened though, we would now have a Samaritans Radar app that Twitter users would be unable to block other users from scanning their tweets with it. The original offering had no opt-out. This just goes to show how little thought was put into the risks associated with the chosen model.