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Wow EP, that was probably one of the best stealth ad hominem attacks (coupled with an argumentum ad ignorantiam) that I think I've ever seen - completely discounting the factual evidence by side stepping it with a non sequitur neurological study. Truly masterful, actually. Golf claps all around. :D
Being bullied or coerced into sex is still rape, the threat doesn't have to be physical. A lot of younger victims are coerced into a minor sexual act first then basically blackmailed into going further with the threat of them getting into trouble if the perpetrator informs their parents. Just one example.Quote:
Originally Posted by Necron2.0
But the law is inconsistent in this regard. Drunk people are still held criminally liable for their actions (at least in English law) as you are viewed as knowing that your judgement may be lowered when you got yourself drunk. If you know you may well agree to have sex with someone whilst drunk when you wouldn't whilst sober, don't get drunk. Before people start shouting that I'm suggesting drunk women are responsible for being raped, I'm not. I'm saying that drunk women are capable of giving consent. By drunk, I'm meaning people who are in a state where alcohol may affect their judgement, not barley conscious (see EG's explanation below). A woman who has been drinking needs to be capable of giving consent otherwise we will end up in a ridiculous situation where half the sexual intercourse in the country is classed as rape, regardless of what the woman may think about it.Quote:
Originally Posted by Nabterayl
Female male rape is non-existent in this country, at least legally speaking. A woman cannot rape a man under English law. Sexual assault, yes, but it is not rape and is treated as a 'lesser' crime.Quote:
Originally Posted by eldargal
@Wildey: you're right that being drunk doesn't absolve you from criminal or tort liability, or liability under a previously existing contract. You've got your consequences wrong, though: I can still rape someone while drunk (bring drunk is not a defense). I cannot consent to sex, or to anything else.
This brings me to the question I still have of Necron: what should the elements of rape be? To convict someone of rape, what must the state prove? Let's leave aside the caveats and focus on the prima facie case, like we were first year law students.
My answer, which happens to map pretty well onto the American answer generally, is that to be convicted of rape the state must prove that the accused:
- Engaged in sexual conduct with the victim
- To which the victim did not consent.
There is plenty of potential room for argument about 1, but I'd like to request we exclude from this discussion quibbling about that (is "sexual conduct" too broad, too narrow, etc.).
Two features of this definition I'd like to call attention to. First, it's gender neutral. The notion that a woman cannot rape a man is abhorrent to me, and I think inconsistent with the real reason we define rape as its own crime. Second, its focus is on the victim's consent, which I think is the real reason we define rape as its own crime.
I'm not exactly sure what Necron would substitute for 2, and I mean that completely seriously. It sounds, Necron, like you would substitute something like "imposed upon the victim by force or the threat of force," but I truly don't understand what you would mean by force. Apparently you would not define the consensual use of force in the act itself as criminal sexual force, which I see the sense of, but you would also exclude non-physical abuse - you seem to propose that physically beating a person until they assent to have sex with one is rape, but simply yelling at them until they assent is not.
I don't understand why that would be, and I mean that literally, without meaning to imply judgment. Do you feel that the uninvited force must be EDIT: non-mental? Must it be force directed at the victim ("Have sex with me or I will blow out your child's brains in front of you" would normally be considered an emotional threat to the rape victim, for instance, although it is a physical threat against the child)?
Perhaps another way of helping me understand would be to ask why you feel justice is not served if the state must only prove that the victim did not consent. Why is that inadequate? How does your proposed definition of violence differ from the current definition of lack of consent? Or is it simply that you feel the general legal principle that an intoxicated person cannot consent to anything (sexual or otherwise) is wrong?
As to your question about marital rape, Ohio's fundamental notion is that rape is about consent. The idea is that people in general do not consent to sex with each other by default, but cohabitating spouses do. If a spouse has to use force or the threat of force, or if the two spouses are not living together, Ohio does not make a presumption of consent. I understand that there are plenty of reasons why people get married other than for sex, and that most of a marriage is things other than sex, but this still seems like a good set of presumptions to me. It does not strike me as barbaric that Ohio would presume I consent to have sex with my wife, nor does that make me feel like her chattel.
I really didn't intend that as an attack. Most people don't know anything about this.Quote:
Originally Posted by Necron2.0
Heuristics are real. They influence the way people think. They influence everyone. If you know about them, they effect you less. I'm not singling you out, but there are only so many times I can type "this happens less than you think" without finally getting sick of it and trying to explain why you think the way you think.
In other words - to be more confrontational, because when I try to be conversational it comes off as an attack :( - you don't have "factual evidence." You have these two cases. Two cases, in a country of three hundred and thirteen million people, in which there are an estimated two hundred and seven thousand rapes a year. You've got two examples. Two. Two hundred thousand. Two. Two hundred thousand.
Even if you only know about half the times this has happened, or a quarter of the time this has happened. Hell, if you knew about a tenth of the times this has happened - it's happened a total of twenty times! - we're still talking about something that's vanishingly rare.
So, you see, the availability heuristic is actually giving you a lot of credit. It's explaining why you have such an emotional attachment to a counterfactual position.
In any case, I really wasn't trying to attack you and I'm sorry if I've offended.
Under English law you cannot 'consent' to a legally binding agreement whilst intoxicated (though you can ratify it when sober) but that is as far as it goes. Since sex is not a legally binding agreement, intoxicated people are capable of consenting to sex or any other activity for that matter (providing they would not be otherwise excluded from consenting to it). All that matters for rape law is whether they a) did actually consent and/or b) the accused believed they had consented. It may be different over there, but that is how it works here.Quote:
Originally Posted by Nabterayl
Did you just equate convincing your wife/girlfriend to have sex with you with child molestation? I don't want to misinterpret what you posted so please clarify.Quote:
Originally Posted by eldargal
If pressuring for sex consists of asking/begging until the woman relents and says yes then that's not rape. If the woman is sober/in full possession of her mental faculties and willfully says yes then it's consentual. I think the average woman is smart enough to realize that she doesn't have to say yes. Lines like Puh-lease baby it's my birthday or C'mon it's not my fault you're so beautiful that I can't stop wanting you so bad, are not coercive and they don't give the man mind controlling powers.
In the example of a minor convinced/pressured to perform a sex act that's most definitely rape because it's statutory rape. If the girl reported the man to the police it would be prosecuted and have a higher likelihood of getting a conviction than 3% because it's statutory. I don't think you'd be able to find anyone, outside of the depraved sickos in NAMBLA, that thought that molesting minors doesn't constitute rape. You'd probably find plenty of people supporting the idea that it merits summary execution.
There's still plenty of room for gray areas like if two 15 year olds are dating, the girl willingly has sex with the boy, her parents find out get angry so she says it's rape but we could go back and forth with carefully structured hypotheticals forever.
The kind of scenario of convincing a minor to have sex is the kind of thing that makes behavior like sexting so dangerous. Girl likes boy, girl sexts boy a revealing pic, boy threatens to share it with the entire school unless she performs a sex act on him, things get worse from there. The hook up culture/party culture, sexualization of children is a problem and it goes beyond things like the fact that we gave the Kardashians a tv show. Social media has created a host of problems/minefields for people of all ages to navigate. Trying to avoid falling victim to that kind of predation could be construed as burdensome but it's a dangerous world out there and it behooves people to be careful.
Fascinating. In America, I believe it's generally the case that sex with someone not your spouse whose judgment is seriously impaired (which is what I've been meaning by the shorthand "drunk") is rape, although of course nobody's going to prosecute you for it unless your erstwhile partner actually complains.
It's somewhat amazing to me that under English law a person who is so drunk that they cannot sell me a stick of gum is considered competent to consent to sex. I know that about five years ago the government was trying to change that. I take it the effort did not succeed?
EDIT: If I can clarify something that is obvious to me but might not be obvious to everyone else ...
When I (or any lawyer) thinks about the elements of a crime, I am speaking primarily of what the state must prove. Proof is the key concept there. There is no way to make a criminal code that is proof against fraud - whenever you have sex, you run the risk that your partner will fraudulently claim rape. Indeed, that is a risk that you run simply by continuing to live. However, even if the standard is simply that the victim did not consent, the state still has to prove that. The law is not structured such that the accused must prove that the victim consented. Rather, the state must prove that the victim didn't. Of course, this is as it should be. We require the state to prove that a bad act occurred; we do not require the accused to prove that it didn't. It's a cornerstone of our civilization.
Of course, it is true that an accusation of rape can be very damning. I had a friend who had a false rape charge leveled against him; I wouldn't be surprised if most of us had. That is obviously a bad thing. In order for it to be a reason to change the definition of rape, though, we first need to establish that the definition of rape is a cause of the false accusation.
And is it? I rather doubt it. Let's take a hypothetical woman who thinks she has something to be gained by alleging that she can prove that a man had sex with her without her consent. Let's say that the facts of the case are that the man did have sex with her but that she did consent. I think that's the most commonly dreaded false accusation case (certainly more dreaded, I think, than being accused of rape by someone that one didn't have sex with). This person's game plan is evidently one of the following:
- Hope that the damage done in the court of public opinion is sufficient to outweigh the fact that her supposed attacker will be found innocent in a public trial, or
- Hope that she can, by falsifying evidence, get her actually innocent attacker accused of rape.
In either of these cases, what does it matter whether the elements to be proven are lack of consent, non-consent, that the attacker used or threatened force, or (that most odious of historical artifacts) that the "victim" resisted? Either way, she's lying about things for which there is no readily discernible evidence at the time of accusation.
A lot of things about rape suck. Among those is the horrible fact that an actual rape victim has a hell of a time proving the elements of rape, and the equally horrible fact that an actually innocent accused has a hell of a time proving that his or her accuser is lying. Regardless of frequency, both of those things, when they happen, are horrible. But I submit that their horribleness is due not to the legal definition of rape but due to the fact that rape, by its nature, is the sort of crime for which there is very rarely good evidence one way or the other. Any time that is the situation, there is horrible opportunity for false accusations and horrible difficulty in convicting actual malefactors.
I played (ovoid) football all through my 4 years of college so I always had to report several weeks before classes began (every athlete in a fall sport did). Every year right before move in day the team attended a date rape/sexual assault seminar (attendance was mandatory). It lasted a few hours and covered things like what constituted consent. I remember my freshman year I noticed the stark difference between me attending a lecture on how to not be Roofie McRapist that lasted an entire evening and the extent of warning that the rest of the guys living on my hall in the freshman dorm received was the same single sided 8.5"x11" flyer posted by the resident advisor on the wall of the hallway and inside the men's bathroom. (Yes EG has a valid point about colleges being inconsistent with their effort to combat sexual assault on campus).Quote:
Originally Posted by Wildeybeast
The way consent was explained to us each fall was that there's a difference between drinking and being drunk. A drunk girl most likely won't be able to consent to sex because if her BAC is high enough to be obviously drunk it's doubtful you can engage her in a cogent conversation. Without getting a VCR Verbal Commitment Response we were told to never proceed with any physical interaction from heavy petting to intercourse. If the there's any doubt that she understood the request for sex or any ambiguity in her answer then leave her alone, proceeding with any physical contact leaves you vulnerable for charges of sexual assault.
We always went through the same basic scenarios:
Q:Would you like to have sex with me?
A: Yershhh gerben hmmpph
That doesn't count as a yes, if it's not clear enough to be unequivical you're a rapist.
Q: Do you want to have sex with me?
A: *Nonverbal head movement/possibly a nod*
That doesn't count as a yes, it wasn't a VCR and is far too ambiguous, leave her alone or you're a rapist.
Q: Do you want to have sex with me?
A: Some buttermilk pancakes would be awesome right now.
That's not a yes, she clearly didn't understand the question, hands off or you're a rapist.
Q: Would you like to have sex with me?
A: Sure let's go back to my room and do it all night long.
You may proceed.
I distinctly remember one year the guy from the health center that always presented the seminar every year used the example response of "Yes I want you in me now" which is remarkably clear and unequivocal but nobody ever actually got that exact response from a girl all year.
Right. I said "assuming there were no threats of harm (physical or otherwise)." What I was referring to above as something I would not consider to be rape is something akin to the "negotiations" over sex that most married and/or long time lovers would be quite familiar with. Sometimes at the end of a long day, you just don't have the energy, or you just might not be into it at the time. Maybe you've really been thinking all day about getting that army painted. And then, the love of your life stands in the door of your man-cave/sanctum sanctorum in the fishnets, the studded leather and holding a can of whipped cream. At that point, if you're smart, you'll just put the paint brush down, screw up your courage, have a double espresso, man up and saddle up, because trust me, if you don't, at some time in the future, when your moment of need comes, she will remember.Quote:
Originally Posted by eldargalBeing bullied or coerced into sex is still rape, the threat doesn't have to be physical. A lot of younger victims are coerced into a minor sexual act first then basically blackmailed into going further with the threat of them getting into trouble if the perpetrator informs their parents. Just one example.Quote:
Originally Posted by Necron2.0
Now, obviously the example you cited, EG, would be rape, because the threat of active aggression (in this case mental/social as opposed to physical) is being used to overcome the resistance of a truly unwilling partner.