Deborah Orr: There are places laws can't reach

Date rape reliably generates controversy, as Helen Mirren has found this week. Part of the difficulty is that the "date rape" scenario, in court, is regarded as uniquely intractable. In the absence of powerful collaborative evidence, after all, it really is one person's word against another's, and there is room for "reasonable doubt".

However hard campaigning groups press for rape suites, for judicial reform, for more immediate and committed police investigation, there is very often no getting round this. The law a lot of the time simply cannot achieve justice for people who fall victim to sexual attacks, and never will be able to. That's a large part of the reason why conviction rates are so low.

Yet, unfortunately, it is not only in the case of date rape that the law has proved to be an ineffective mechanism for resolving highly intimate gender conflicts. The family courts are not criminal courts. Still, day after day, they are charged with attempting to do the nigh-impossible – squaring the demands of warring former couples whose own words are usually also intractably against each other's. And day after day, they fail in their efforts.

No one has a good word to say for the family courts. People go expecting to be vindicated, and find that their pleas for justice are not answered. They very often find, in the absence of powerful collaborative evidence, that their word carries no more weight than that of their fellow combatant.

Again campaigners press for judicial change. The courts should not be held in camera. Children should be routinely allowed to give evidence. People who do not comply with court orders should be arrested and punished. All these suggestions, as do those pertaining to rape in the criminal courts, have their crude merits, and address real difficulties. But all of them, tragically, have a terrible flaw.

They all make yet more ghastly the ordeal of the people that the law is primarily concerned with protecting, the children who are involved in the conflict, but with little hope of making a decisive change in outcome. Just as putting the victims of rape through a trial that is unlikely to secure justice for them, simply adds to their violation and misery, moving the children involved in an acrimonious break-up to centre-stage is a sort of victim-punishment.

There are of course many significant differences between the two situations. But they both tell us an obvious truth, one that it seems strange we do not recognise more fully and clearly. The legal process cannot reach into our homes, our hotel rooms, our private places, our minds, our hearts, our souls, then cast its impartial eye over what occurred between those walls, and between those people, and decide who was at fault. Only a very odd fish would ever wish that it could be so either.

The truth is that human beings really do have to take some responsibility for the moral policing of themselves. There has been much grumbling over recent years about Labour's unwillingness to accept this, and its zeal instead for the micro-managing of as many aspects of our lives as it possibly can. Labour, one feels, would sit a minder in every living room and every hotel room, quite happily, if it possibly could, and all for our own good.

And while David Cameron's Conservatives may be keen to champion personal responsibility, they are themselves seduced by the idea that just saying such a thing is quite bold and bossy enough. Obviously, their position on the family is one which is tacitly critical of parents whose inability to act in the best interests of their offspring lands them in the family courts. But they admit themselves that thus far they have come up with no policy at all that could possibly address such regrettable breakdowns, unless one believes that people who manifestly hate each other will make a decent fist of domesticity for the sake of a mildly beneficial tax break.

As a liberal Conservative, Cameron must wince at the very idea of returning to pre-social liberalism forms of social control, when social ostracism was so brutal that babies born out of wedlock were "bastards", and women who had sex before marriage were "fallen". Yet it is true that social liberalism has delivered many negative consequences along with the positive ones.

Reluctant for a long period to admit this, the centre left is now thinking about ways of injecting a wider sense of social responsibility into the populace. Richard Reeves at the think-tank Demos is keen to stimulate debate about how cultures can promote "good character". Matthew Taylor, former Blair adviser and now head of the Royal Society for the Encouragement of Arts, Manufactures and Commerce, is likewise fascinated by the challenge of spreading pro-social (as opposed to anti-social) behaviour. But while these are interesting and positive intellectual developments, the awful truth is that we appear to have a problem with being able to agree on what pro-social behaviour or good character even is any more.

The date rape issue is interesting in this context. For me, the pro-social position is clear. There can be no excuses for rape, under any circumstances. There must be a clear definition of the crime, and universal understanding that when it occurs the perpetrator is always responsible. But for others, this principle is not acceptable. They insist that when the victim has been drinking or has placed herself – or himself – in a situation that triggers vulnerability, they must bear responsibility too.

Yet, precisely because rape is a crime that the law so often cannot touch, it is really important that this line should not be blurred. You don't promote social responsibility by suggesting that sometimes it is all right to commit a crime against another person. Instead, you promote the opposite idea. In "date rape" and in many other intimate areas of personal life, it is essential that people understand that the law cannot touch them – either to punish or to vindicate – but that what they are doing is unequivocally wrong.

d.orr@independent.co.uk

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