Judges admit they get round laws designed to protect women in rape trials

[spartan]

http://www.guardian.co.uk/politics/2008/apr/01/justice.gender


Judges admit they get round law designed to protect women in rape trials

· Sexual history still being introduced at hearings
· New book reveals judicial attitudes to legislation

Judges have undermined a law intended to stop defence lawyers cross-examining women in rape cases about their sexual history, by continuing to insist on their discretion to allow it, a new book discloses.

Interviews with 17 judges in London and Manchester found that some insisted they still had a wide discretion to allow questions on sexual history, although the law was changed in 2000 to impose severe limits on questioning.

One judge described the provision as "pretty pathetic because it's get-roundable".

Another said: "I'm not one for being unduly fettered. I've been appointed to do a job on the basis that I have a certain amount of judgment, and to be fettered or shackled by statutory constraints I don't think helps anybody."

The conviction rate in rape cases remains stubbornly low - only 5.7% of cases reported to police, despite a series of legal reforms aimed at boosting it.

The limits on introducing sexual history were intended to prevent defence lawyers from feeding into jury prejudices about rape by making the complainant seem less deserving.

Sexual Assault and the Justice Gap: A Question of Attitude, to be published by Hart Publishing on April 15, puts much of the blame for the low conviction rate on myths and stereotypes about the crime.

The authors say the entire justice process is affected, from the initial decision to report the rape to police, through to conviction or acquittal by a jury.

The authors - Jennifer Temkin, professor of law at Sussex University, and Barbara Krahe, professor of social psychology at the University of Potsdam in Germany - found stereotypical views about rape were widespread among potential jurors.

Their survey of more than 2,000 members of the public aged 18-69 showed people tended to blame the woman for bringing the attack on herself, see a case where the man had sex with a woman without her consent when she was drunk as not a "real rape", and downplay the seriousness of having forced sex when the perpetrator was the woman's former partner.

The views were also found to be common when the authors outlined a range of rape scenarios to British undergraduate law students in their final year and a group of British graduates doing professional law training, the lawyers and judges of the future.

The interviews with the judges took place in 2003 as part of a 2006 Home Office research study but their comments, reproduced in the book, have never before been published.

A high court judge told the Guardian that the extent to which lawyers should be allowed to ask questions about a woman's past sexual behaviour was still "a big issue" for judges.

The limits on questions about sexual history came into force in December 2000. But in 2001 a case called R v A went to the House of Lords, in which the defendant claimed that he had previously had sex with the complainant and that this was relevant information for the jury in deciding whether she had consented on this occasion.

The law lords' judgment gave judges only slightly more leeway to allow questioning in such cases, but the authors say some took it as having completely restored their discretion. Six of the 17 judges interviewed were "plainly undeterred and, regardless of the new legislation, were not prepared to forgo their discretion in these matters", they say.

They add: "Progressive law reform in the area of rape has been undermined by judicial interpretation and ... some judges are not entirely free from the same stereotypical beliefs and assumptions held by members of the public."

One judge said: "Judges tend to take a reasonably generous view when the question of past sexual history is considered. Maybe I'm talking personally, I don't know. But I get the impression, talking amongst colleagues, certainly here, and occasionally at sex courses [training for judges on dealing with sex crimes] and so on, that's the general approach."

Temkin said: "The way I see the sexual history legislation is as a very laudable attempt to deal with these stereotypes which get in the way of looking at cases on the facts.

"The design was a good one that was driven by the best of motives, which was to tackle these stereotypes. If the legislation isn't implemented in the way that is intended, that goal is being undermined."

Thoughts?

[jake williams]

It's horrible and shocking, but "rape" is an extremely complex issue, with all sorts of awkward subtleties, even grey areas.

There's sort of a tendency to say that if it has anything to do with sex and just about anyone wants to call it a crime, it's Rape and it's basically reanimated Hitler come back to chew holes in infant orphans.

The fact is that there's something of a continuum from sort of vaguely uncomfortable sex where one person doesn't really want to and gets talked into it, to really violent sexual assault at the other end. There's a huge spread in between, and the ends have virtually nothing to do with each other.

Also, simply due to the nature of sexual activity - it being private - it's something difficult to deal with judicially. The fact is, sometimes women do lie, or at least misrepresent the situation, intentionally or unintentionally. The trouble is that it's virtually impossible to say how often this happens. It's generally a crime with two witnesses, one being the victim and one being the perpetrator, and that's a problem. I don't know how you deal with it.

Also, sexual activity is full of all kinds of ambiguities. No one signs waivers before they fuck, but if you look at a lot of the actual laws they practically expect you to. Then there's the whole alcohol thing.

[BobKKKindle$]

The fact is, sometimes women do lie, or at least misrepresent the situation, intentionally or unintentionally. The trouble is that it's virtually impossible to say how often this happens.

You sound like you're trying to excuse the way society treats rapists.

The current conviction rate for rape is just five percent. This means that, out of all the rape cases that are brought before a court, only five percent result in a conviction for the rapist. However, this statistic is actually deceiving, because many women choose not to go to the police when they have been raped, often due to the shame attached to rape in some cultures, and so the problem is much bigger than it may at first appear.

This low conviction rate is mainly the result of the concept of "implied consent". Women are said to have given their implicit consent to sex by wearing revealing clothing, or my acting in a flirtatious manner towards the eventual rapist. This is obviously absurd; doing these things does not mean that you consent to having sexual intercourse with anyone, and it's not acceptable that women should be made to feel as if they were responsible for being raped.

Women aren't lying, they're not responsible for rape, rapists are being let off without the punishment they deserve.

[jake williams]

You sound like you're trying to excuse the way society treats rapists.
What do you mean?


The current conviction rate for rape is just five percent. This means that, out of all the rape cases that are brought before a court, only five percent result in a conviction for the rapist. However, this statistic is actually deceiving, because many women choose not to go to the police when they have been raped, often due to the shame attached to rape in some cultures, and so the problem is much bigger than it may at first appear.
This is true, though again, there is certainly some room for false convictions. Much less so in some of the more atrocious parts of the world, though.


This low conviction rate is mainly the result of the concept of "implied consent". Women are said to have given their implicit consent to sex by wearing revealing clothing, or my acting in a flirtatious manner towards the eventual rapist.
How much is this actually responsible for low conviction rates? I honestly don't know and I'd like to, but I'm a little skeptical (and I'd like to be - if this was actually in the main what was going on that would be horrible).


This is obviously absurd; doing these things does not mean that you consent to having sexual intercourse with anyone, and it's not acceptable that women should be made to feel as if they were responsible for being raped.
Generally agreed, or at least I agree with the intent of what you're saying. Again though the definition of "rape" is too variable in a lot of cases. Women are certainly sometimes responsible (partly) for sexual activity they're involved in, wanted and unwanted.


Women aren't lying
Some women almost certainly lie, have lied, and will lie, but in a great number of cases it is extremely difficult if not impossible to say whether or not they have.


they're not responsible for rape
By definition the victims of rape are not responsible.


rapists are being let off without the punishment they deserve.
This certainly occurs, but again it's impossible to say exactly how often. Also, what would you propose we do to deal with it?

[Luís Henrique]

Women aren't lying, they're not responsible for rape, rapists are being let off without the punishment they deserve.

Women are full human beings, and they are as much capable of lying as men.

Luís Henrique

[Jazzratt]

The fact is that there's something of a continuum from sort of vaguely uncomfortable sex where one person doesn't really want to and gets talked into it, to really violent sexual assault at the other end. There's a huge spread in between, and the ends have virtually nothing to do with each other.

This is the bit of your stupid slice of crap that really got to me. It doesn't matter where something falls on this "continuum" - if one person has sex with a person that didn't want them to it is fucking rape. No matter how you want to cheapen it. No matter how much you plead that "s/he asked for it" or "s/he slept around a lot", no fuck that. Fuck you for starting your disgusting post with the word 'rape' in scare quotes, too.


Generally agreed, or at least I agree with the intent of what you're saying. Again though the definition of "rape" is too variable in a lot of cases. Women are certainly sometimes responsible (partly) for sexual activity they're involved in, wanted and unwanted.

Don't.
Ever.
Blame.
The.
Victim.

You disgust me.

[jake williams]

It doesn't matter where something falls on this "continuum" - if one person has sex with a person that didn't want them to it is fucking rape.
Well look, if we want to play semantics we can, but for me, "rape" is a word, and it implies force of some kind, if there's no force there's no rape, it's something else. It might be a horrible something else, but it's not rape.

Second, the person actually has to be aware that the second person didn't want it. If they weren't there's no way to call it a crime on the part of the first. It might be unfortunate, but it sure as hell isn't rape. It has certainly been called as much though, and this isn't okay.


No matter how much you plead that "s/he asked for it" or "s/he slept around a lot", no fuck that.
First you're projecting opinions on to me I don't actually have. Second if she actually asked for it in the literal sense, if she consented to it, then it's not rape. It's a task to determine what consent actually consists of. Wearing a skirt is not consent. Being in the presence of men is not consent. But there are certainly things that are, and if there's consent, it's not rape.


Fuck you for starting your disgusting post with the word 'rape' in scare quotes, too.
"Rape" is a word. It's a complicated word, a disgusting word and a word representing, or sometimes misrepresenting horrible things. But it's still a word, and you still use it like other words.


Don't. Ever. Blame. The. Victim.
This statement is nothing but whining unless what it actually intends to mean is made a whole lot clearer. Human sexuality is obscenely complicated.



Look, just because there have been women who have been completely destroyed by rape doesn't mean that the only morally valid way to talk about it is to say "Men are always criminals seething hate and horror, and women are always tragic victims and it's men's fault, and if you disagree you're Satan". In fact, because it misrepresents the actual picture, it offers no hope for actually dealing with the issue - and hence perhaps giving some help to the women who are regularly it's victims.

[Mujer Libre]

Well look, if we want to play semantics we can, but for me, "rape" is a word, and it implies force of some kind, if there's no force there's no rape, it's something else. It might be a horrible something else, but it's not rape.
I think you need to learn what rape is. It does NOT imply physical force, rape is non-sensual sex.

That is it. That is the only definition of rape.

[Cubensis]

Plenty of women have lied about being raped to get at the person being accused, for whatever reason. Unfortunately these types of women have done nothing but make it more difficult for women who actually have been raped.

[jake williams]

I think you need to learn what rape is. It does NOT imply physical force, rape is non-sensual sex.

That is it. That is the only definition of rape.
Again, "rape" is a word that has been given all kinds of different definitions by different people, with huge differences between them. There are differing legal definitions of rape (and consent, for that matter), never mind everything else.

[careyprice31]

I was sexually assaulted some years ago. I met a guy through one of my cousins and chatted for a bit and he said at one point he needed to use the phone so i went with him to the graduate student's room (it was at un iversity) I didnt notice at first there was no phone and he had lied, and there he assaulted. me. with the help of some friends i reported the attack to police but he wasnt charged or anything for lack of evidence, the polygraph was inconclusive and it was my word vs his despite the fact I dont have a reputation or history of telling lies especially about something so serious as sexual assault he was never charged.

It wasnt raped i wasnt rape but it was still sexual assault that I never consented to. At one point he wrapped his arms around me and picked me up off the floor and held me there, I couldnt move but my arms were free. I got away by striking him in the head with my hand pretty hard too.

Because of this I had to leave home for a week as my own parents blamed me for the attack just because I followed him into the room . All I got for days was hell til I left home and stayed with friends for about a week.

I guess my point being that you dont have to look far to find people who believe these myths about sexual assault and rape.


and It is never right to blame the victim.

[Wanted Man]

This article sends a chill down my spine, to think of its implications. If this is true, it's really terrible. Svetlana's post clearly illustrates the blaming of victims that occurs a lot.

As for the discussion with jammoe, it is pointlessly emotional and not getting anywhere. Jammoe seems to think that his opponents consider all men potential rapists just waiting in the bushes. His opponents seem to think that jammoe wants to blame the victim for some circumstances in some cases.

Jammoe, you say this is a 'sensitive' thing. You should make your definitions of words more clear, and also provide more clarity on your own opinions. Otherwise, the current reaction to your posts will continue.

[jake williams]

Jammoe seems to think that his opponents consider all men potential rapists just waiting in the bushes.
I don't like the "opponent" sort of language - on different aspects of this issue I'm going to agree and disagree with different people - but there are people with varying degrees of this sort of opinion.

Here's what I think is a major part of this. The only way to ensure that people who sexually assault others are always or even regularly found guilty is to automatically take the word of people who claim to be victims. Most people who would claim to be victims, I'd guess, would be completely sincere, not to mention traumatized (though to varying degrees and in different ways). But this isn't an acceptable standard for judicial practice. It's unfortunate (an understatement) that sometimes it comes down to his word vs. his, but when it does, and this is all we have to go on, we can't pick hers just because. That's not how it works.


His opponents seem to think that jammoe wants to blame the victim for some circumstances in some cases.
I'd like to get rid of the "blame the victim" phrasing because I think it's both inappropriate given the complexities of the situation, and absurd by definition - the word victim itself implies blamelessness.

If it can be unambiguously proven that a person consciously violated the will of another person in forcing unwanted sexual activity on them, then that is unambiguously a crime for which the first person is guilty, completely.

But this is very rarely something that can be unambiguously proven.


Jammoe, you say this is a 'sensitive' thing. You should make your definitions of words more clear, and also provide more clarity on your own opinions. Otherwise, the current reaction to your posts will continue.
What definition of terms do you want? I don't use the word "rape". It's too ambiguous, and I think its particular emotive status makes rational and fair discussion about the matter - which I think is morally necessary, for everyone involved - impossible. Which I think is pretty well evidenced in this thread, actually.

I have a bunch of opinions because like I said, I think it's a very complex issue. You have a range of situations in which people have sex with each other. You have a range of degrees to which either person wanted it, and a range of information that the other had about this. And then you have a range of information that a third party, say a court, can determine, and this is a lot of it.

I do think my own views on the matter are being very much misinterpreted, partly because when the issue comes up I think you're expected to say "If a woman says something happened she didn't like it's rape and He's evil and there's no more to it than that." Sometimes this basically is the case, but rarely. Far more regularly the situation is still horrible, but that doesn't preclude complexity, or even the sensible allocation of "guilt".

Again, though I did think I'd already said it - no, I don't think that women who decide to talk to men or wear skirts "had it coming", it being whatever ends up happening to them, but that I have to say as much speaks to the complete absurdity that goes on in this discussion.

What I do think is that if two people are particularly inebriated and they have sex and one person wakes up and kinda wishes she hadn't, that's not a crime at all, I mean it sucks, but it's not the end of the world. If it was made explicit that the sex was unwanted, then again that's unambiguous by definition.

Now here I think is something important. Maybe we say a degree of alcohol) eliminates the capacity for conformed consent - in which case we have to mitigate the charges placed against men who act in certain situations. If we think that it doesn't then a lot of things that are called "rape" shouldn't be.

[Jazzratt]

Well look, if we want to play semantics we can, but for me, "rape" is a word, and it implies force of some kind, if there's no force there's no rape, it's something else. It might be a horrible something else, but it's not rape.

This cartoonish view of rape is one of the major problems that trivialises it. Simply not struggling does not imply consent, no matter what some Italian judges want you to believe (I refer to a case in which a Judge overturned a prosecution on the grounds that, in order to remove tight jeans, you need the help of the person wearing them.). It is precisly this kind of thinking, taken to its logical conclusion, that leads to phrases like "It's not rape if they orgasm". Fucking sick.


Second, the person actually has to be aware that the second person didn't want it.

I think not explicitly giving consent is a pretty big fucking clue, wouldn't you?


If they weren't there's no way to call it a crime on the part of the first. It might be unfortunate, but it sure as hell isn't rape. It has certainly been called as much though, and this isn't okay.

It has been called rape, because it is. I don't know about you, but if someone chose to have sex with me whilst ignoring whether or not I wanted it I would be pretty fucking upset and I daresay I would consider it a little more than unfourtunate. (Creepy language by the way, well done.)



First you're projecting opinions on to me I don't actually have. Second if she actually asked for it in the literal sense, if she consented to it, then it's not rape.

No one is denying that it isn't rape if someone consents - unless they withdraw consent of course.


It's a task to determine what consent actually consists of. Wearing a skirt is not consent. Being in the presence of men is not consent. But there are certainly things that are, and if there's consent, it's not rape.

There certianly are things that are consent, well one thing really - specifically giving consent. Simply being silent or not disagreeing to have sex does not amount to consent.


This statement is nothing but whining unless what it actually intends to mean is made a whole lot clearer. Human sexuality is obscenely complicated.

Loo you raving nutcase, no one is denying that human sexuality is complex - people are just disagreeing with your bullshit opinion that rape is so fucking trivial that it can be described as "unfourtunate" and that one can only be raped if one struggles.


Look, just because there have been women who have been completely destroyed by rape doesn't mean that the only morally valid way to talk about it is to say "Men are always criminals seething hate and horror, and women are always tragic victims and it's men's fault, and if you disagree you're Satan".

You should put that strawman right back up the dark orifice from whence it came.


In fact, because it misrepresents the actual picture, it offers no hope for actually dealing with the issue - and hence perhaps giving some help to the women who are regularly it's victims.

So choosing to deny that rape victims are rape victims means that rape victims get more help? Fucking crazy talk.

[BobKKKindle$]

Well look, if we want to play semantics we can, but for me, "rape" is a word, and it implies force of some kind, if there's no force there's no rape, it's something else. It might be a horrible something else, but it's not rape.There is more than one definition of rape, but they all focus on the concept of consent - if someone does not consent to sex, then any attempt to penetrate that person and use their body for sexual pleasure would be considered rape. Consent must come in the form of explicit verbal notification - signals that are open to interpretation or a lack of protest when sexual advances are made is not the same as giving consent. Violation of consent extends beyond the use of physical force (for example, pinning a victim down to the ground) and also includes verbal threats, or making the victim ingest substances that may prevent them from making a clear judgment. This is not a "blurry" issue as you suggest; by trying to confuse the definition of rape you are potentially allowing those guilty of sexual abuse to escape the punishment they deserve.


But this is very rarely something that can be unambiguously proven.By dismissing the ability of women to provide an accurate record of events, you are providing the justification for the court to probe into the past sexual relations of women, which is not acceptable, because it is a violation of one's privacy. The current system of judging rape cases is based on intrusion and protecting the rapists from punishment through the concept of implied consent - you fail to recognize how this concept allows courts to make rulings that are biased in favour of rapists.


Plenty of women have lied about being raped to get at the person being accused, for whatever reason. Unfortunately these types of women have done nothing but make it more difficult for women who actually have been raped.Even if there are some women who have lied, that is not the central issue of the debate, and this "lying" is not the main cause of the low conviction rate for rapists.

[Qwerty Dvorak]

I think we all need to stop being so emotional, though I understand it can be extremely difficult when discussing topics like this.

I don't think that the cross-examination of rape victims on their sexual history is intended to "blame" them for their attack, it's not like they're saying "she was a slut so she deserved it" or "she was a whore, what do you expect?" It has more to do with credibility. In every rape case the onus is on the prosecution to prove the defendant's guilt beyond reasonable doubt; there is a presumption that the defendant is innocent and therefore that the victim is lying. Often it's the word of the alleged victim against the word of the alleged attacker, and sometimes courts have to look to their respective histories to determine the credibility of each. It sounds cold but the reality of the matter is that if a woman has a history of having sex indiscriminately, say at parties or something, it is less likely that she is going to be in a situation where she has sex without consent.

You may not think that whether or not the victim is lying is a big issue in rape cases because it's always easier to sympathise with the woman than the man, but there have been cases where women have lied about being raped and convinced the juries that they were telling the truth, completely destroying innocent men's lives. Besides, courts will look at a man's past history of violence and sexual assault in determining the credibility of his claims.

[Jazzratt]

It sounds cold but the reality of the matter is that if a woman has a history of having sex indiscriminately, say at parties or something, it is less likely that she is going to be in a situation where she has sex without consent.

How is this different from saying "she's a slut and therefore a liar"? It doesn't matter how often you have consensual sex - if you're raped you're raped and your sexual history has no bearing on that. A more sane approach would be to see if the woman would have any motivation to be dishonest and establish her character. As lie detector technology advances, of course, this kind of thing may well become academic but I wouldn't advocate our current crude machines in a court of law at the moment.


You may not think that whether or not the victim is lying is a big issue in rape cases because it's always easier to sympathise with the woman than the man, but there have been cases where women have lied about being raped and convinced the juries that they were telling the truth, completely destroying innocent men's lives. Besides, courts will look at a man's past history of violence and sexual assault in determining the credibility of his claims.

I'd like to see the statistics for all these supposed "lying harpy witch" cases, because if they're anything like as shocking as actual rape statistics and actual statistics regarding unreported or unconvicted rapes then I might be able to see where you're coming from; as far as I am aware, however, the number of "lying harpy witches" is comparitvely low.

[BobKKKindle$]

Although some women may decide to lie, we should be aware that, as I mentioned in my opening post, the conviction rate for rape is five percent, and so even when you do take lying into account (which is unlikely to be higher than the average for all crimes, three percent) there are still rapists who have been able to avoid punishment - indicating a serious problem with the justice system which is based on a series of myths that attributes blame to the victims of sexual abuse.

In rape cases, it is possible to use forensic analysis to determine whether sexual intercourse was forced - for example, loose strands of hair may indicate that the rapist grabbed the woman's head so she would not resist or would not be able to determine the identity of her attacker, and blood would suggest that forcible penetration occurred.

[Qwerty Dvorak]

How is this different from saying "she's a slut and therefore a liar"? It doesn't matter how often you have consensual sex - if you're raped you're raped and your sexual history has no bearing on that. A more sane approach would be to see if the woman would have any motivation to be dishonest and establish her character. As lie detector technology advances, of course, this kind of thing may well become academic but I wouldn't advocate our current crude machines in a court of law at the moment.
Obviously if you're raped you're raped regardless of sexual history, I'm just saying that the likelihood that you gave consent to the act in question is related to how liberally you gave consent to similar actions in the past. Of course the case also revolves around establishing a motive to lie on the part of the victim, and rest assured that this is given much greater weight than the sexual history of the victim. To be honest I think the importance of the victim's sexual history in these cases has been blown out of proportion in this thread.

Regarding lie detector machines, they are nowhere near ready yet, as you claim. In order for them to be fit for criminal cases one would have to be certain of their accuracy beyond any reasonable doubt.


I'd like to see the statistics for all these supposed "lying harpy witch" cases, because if they're anything like as shocking as actual rape statistics and actual statistics regarding unreported or unconvicted rapes then I might be able to see where you're coming from; as far as I am aware, however, the number of "lying harpy witches" is comparitvely low.
Of course they are much lower, but unfortunately the law does not have the luxury of being able to disregard the danger of something happening just because it does not happen as often as something else. All that matters is that it does happen, and I can link you to news articles if you want.

-----------------------

By the way, can anyone by any chance list/link me a few cases where this kind of cross-examination has been used? I'd like to look at them.

[Black Dagger]

Again, "rape" is a word that has been given all kinds of different definitions by different people, with huge differences between them.

You're making this issue seem more much more complicated than it actually is.

'Rape' is a non-consensual sexual act between two or more individuals - that's it.


different definitions by different people, with huge differences between them
Can you support this claim with evidence?

Which people? What are their definitions?


there are differing legal definitions of rape (and consent, for that matter), never mind everything else.

You're conflating legal debates about how consent is determined - in differing contexts - with debates about the nature of rape; although obviously the two concepts are closed linked - as rape is a sexual act without consent.

However these nuanced statute or common law definitions do not obfuscate what rape actually is - to the contrary - as rape is a sexual act without consent - it is the nature of consent that is disputed, (re)defined - by the law - that is what is disputed in rape cases - not what rape is - but if rape occurred, that is - was there an act of sex - and did it occur with or without consent?

[Qwerty Dvorak]

For avoidance of doubt (and silliness), the legal definition of rape is sexual intercourse without consent, where the alleged rapist knew of the lack of consent or was reckless as to whether or not there was consent.

[TC]

I didn't really want to get into this thread because, its an issue where both "sides" tend to have emotional responses based on contempt for female sexuality and agency.

On the one hand there is a male chauvinist position that comes from both misogyny and anti-feminist backlash that fixates on malicious false rape allegations, and denies social and psychological effects of human sexual asymmetry in ways that are convenient to men.

On the other, there is a phony-feminist position that comes from a patronizing and infantilising view of women and ultimately denies that women have the same level of sexual agency as men do (just as conservatives do), that casts women as presumptive victims instead of equals, encourages women to reconconceptualize unpleasant but not objectively violating experiences as "rape", ultimately undermines both the seriousness of rape and gender equality.

To begin with, I think people should keep the following in mind:

-Rape is sex without "consent" not in the most active sense of the word, as asserting approval, but in the passive sense of the word, as permitting or acquiescence. The reason why rape is potentially so ego-destroying is because it is a violation of someones will on a most extremely intimate level, a level that to deny someone complete control over amounts to denying them personhood, to treat them as if they're just meat; in this sense, the passive meaning of the word 'consent' applies.

If someone holds your hand without asking permission, and you allow them to continue to hold your hand, you are permitting it and clearly expressing consent. If someone holds your hand and you attempt to take it away and they grip onto it and wont let go, then they're violating your will. This is not intended to be a direct analogy but rather a way of illustrating that the issue with consent in this sense is not an issue of explicit permission but whether someone would do something to someone whether they permitted it or not.

If an alleged rapist could not reasonably think that their alleged victim was permitting them to have sex, then its rape. If an alleged victim is reasonably able to stop it from happening without needing to resort to force, then its not rape.

-Some people evoke rape victims, like some people evoking the holocaust, in such a way as to shut down debate by casting themselves on the side of the angels and their opponents with the rapists (or the Nazis). The liberal cult of victimhood has no place on the left. Shouting "NEVER BLAME THE VICTIMS" to get people to shut up is infantile.

-Some women lie, just as some men lie, but this isn't the biggest problem. Some women think, or decide to think, or talk themselves into believing, that they've been "raped" when they haven't been in the proper sense of the word, largely because they've been encouraged to deny their personal responsible for allowing sexual situations that they didn't want (didn't want but did not consistently refuse) to happen, and they've been given the option of declaring it "rape" by phony feminists who basically hate sex anyways. This both belittles women's personal agency and it trivializes rape in the proper sense. The notion that anyone who feels they've been raped, has been raped, is wrong, so it doesn't require lying about the events to falsely accuse someone of rape.

-Rape is probably the only crime where the media, the public, and the left, presume guilt rather than innocence, and this is wrong for the same reason its wrong to presume guilt with any other crime. This can be seen most graphically in the efforts to 'raise the conviction rate' (which is btw, a rate of conviction per report not a rate of conviction per prosecution, which is the normal sense of the phrase). Raising the number of men who go to jail per report is not an inherently desirable thing unless you think they're all guilty. Making laws to prevent any inquiry into the prosecutorial witnesses history, sexual or otherwise, presumes that they are in fact 'the victim', while allowing a full case to be made against the accused including naming them in the press presumes them to be the guilty party and denies them the normal rigorous defense.

Consider for instance the Duke Lacrosse Team rape trial; I certainly assumed they were guilty and wanted to see all of their privileged white chauvinist jock butts thrown in jail; everyone did, because its a lot easier to identify with a woman who says she's been raped then obnoxious chauvinist guys who said they didn't do it. We were all clearly wrong; but the thing is that we'd never have known that they were in fact innocent had they not been not been privileged and wealthy enough to afford a defense that could demonstrate it; if they were poor black kids they'd be in jail right now.

-There is a natural impulse to identify with a victim and against a perpetrator, but the purpose of a trial is to determine who victim actually is and this should not be be prejudged on the basis of their gender (as if women would be too pure, innocent, and frankly childlike to falsely accuse someone). Rape destroys lives, but so does being accused of rape; being on trial for rape is itself sexually degrading and humiliating, just as rape is, and unlike with rape victims in the west, the result is public shame (rather than humiliation without shame) and social ostracism even if found to be innocent.

-Discussion of rape trials is emotional even for people not involved. When people look at rape trials they want to see accused punished as if it was themselves their sister, their daughter or their girlfriend who was raped; they don't consider if it was them, their brother, their son or their boyfriend who was being falsely accused of rape precisely because there is a presumption of guilt not innocence so they can't imagine their brother, son or boyfriend ever being in that situation...and the presumption of guilt is ultimately a presumption that women have less agency than men.

-When its one witness against one witness and there is no corroborating physical evidence to make one or the other's story more persuasive, the accused should not be convicted, regardless of the crime. Its only in rape cases that people want to make some kind of an exception to this.


This cartoonish view of rape is one of the major problems that trivialises it. Simply not struggling does not imply consent... It is precisly this kind of thinking, taken to its logical conclusion, that leads to phrases like "It's not rape if they orgasm". Fucking sick.

Comments like these put a principle above the reality.

Actually I think you're the one trivializing it. If no drugs or weapons are involved and someone puts up no physical resistance whatsoever then you do have to ask why not? If somethings happening that you don't want to, you should make an effort to resist it, if you don't make an effort to resist it, then you can't necessarily say that it would have happened and they wouldn't have stopped if you did attempt to make some even token effort. That does, actually, reduce the credibility of the claim.

I'm sorry, actually, I'm willing to believe that "its not rape if they orgasm", that seems pretty impossible to me (although I don't see how that would be relevant).



Second, the person actually has to be aware that the second person didn't want it. I think not explicitly giving consent is a pretty big fucking clue, wouldn't you?

I wouldn't. I've wanted plenty of things without explicitly giving consent.


There certianly are things that are consent, well one thing really - specifically giving consent. Simply being silent or not disagreeing to have sex does not amount to consent.

Yes, it does. To put it as mechanically as possible, in order to have sex a number of physical actions are required leading up to it and engaging in it is not an instant act but a process where someone has time to react. If someone allows this process to occur without disagreeing then they are consenting to it. To allow someone to engage in sex acts with you for more than an instant suggests agreement, that agreement can be withdrawn by explicitly stating to stop or making gestures that make it obvious (i.e. pushing hands/torso away) and thats what indicates lack of consent, but to allow someone to continue is to show yourself a willing participant.

By the time someone actually has sex with someone both parties have ample opportunity to refuse, seeing how its going, and they continue to have opportunity to refuse while having sex; failing to use that opportunity indicates consent.

This is in contrast with for instance, grabbing a strangers ass in a bar; as in that scenario no consent could reasonably assumed since the person wasn't participating in any way and they were not given an opportunity to refuse.


Consent must come in the form of explicit verbal notification - signals that are open to interpretation or a lack of protest when sexual advances are made is not the same as giving consent.

Wow, well, I guess I'm a rapist then, I better go turn myself in. :rolleyes:

Seriously this has to be the most idiotic thing written in this thread; it completely denies the real dynamics of human sexual interaction. Accepting sexual advances without protest expresses consent to those advances, just as making advances also implies consent to those advances.


This is not a "blurry" issue as you suggest; by trying to confuse the definition of rape you are potentially allowing those guilty of sexual abuse to escape the punishment they deserve.

You're the one who is confusing the definition of rape to the point of trivializing it. Under your definition pretty much everyone who has ever had sex is a rapist, so I'm going to assume that either you're 1. a virgin who has somehow never seen a single sex scene in a single mainstream film or 2. trying to confuse the definition of rape for the sake of creating a model of 'justice' where all accused are convicted and a woman can pretty much send anyone to jail shes slept with (because, you know, women are fragile an need that kind of protection!).

[jake williams]

As usual I agree completely with TC.

One point though. RB said something about... women with a more promiscuous sexual history being more likely to lie about being raped. This is almost certainly false. In fact, they're at a higher risk because of the perception that they're going to be okay with it, that this history implies consent. It does not.

[Luís Henrique]

For avoidance of doubt (and silliness), the legal definition of rape is sexual intercourse without consent, where the alleged rapist knew of the lack of consent or was reckless as to whether or not there was consent.

Yes - on the paper, it is pretty black on white.

In reality...

Drunken lady, who consents - but the next morning, can't remember having consented.

John hires prostitute for 50 bucks, doesn't like the service, pays only 30 and refuses to pay more. Or, refuses to pay at all.

Lady gives consent to a guy who she believes is a Rockfeller - then it comes out that he can't even pay his bills.

The above, but the guy actively lied about that.

Lady gives consent, but only because she's afraid to lose her job if she doesn't. Or afraid to get beaten. Or afraid that her friends will think she's a prude.

Or it's the case of a man, who gives consent just because he's afraid of being tought as less manly if he doesn't.

See, there are many different issues involved.

After all, we had that case in which a young man got sentenced to something like ten years in jail for rape, for having oral sex with a young woman who apparently consented. Was that sentence fair?

Luís Henrique

[TC]

See, there are many different issues involved.

There really aren't. None of the examples you gave (with the exception of being legitimately afraid of being beaten up as the result of threats) involve violations of simple consent.

Your other examples either involve lack of fully informed consent (the prostitute example, fake rich guy,), consent for reasons other than sexual desire (fear of losing a job, fear of being called a prude, fear of being made fun of) or failure to remember giving consent (which is not material on having given it if you can't remember anything at all).

None of them could possibly be construed as rape except by changing the definition of rape to one that includes types of consensual sex. To alter the standard to being 'fully informed consent' and anyone who gets accidentally pregnant or catches an STD/STI or gets heart broken could count themselves as 'raped' since they surely would not have consented to that particular instance of sex had they known what the consequences would be in advance of granting simple consent. To suggest that having sex for motives other than just sexual fulfillment, including career advancement, social status, preserving a relationship, or even perhaps generosity, would amount to both putting limits on what people can use their own bodies and sexuality for and shift the definition of rape from being reliant on an interpersonal act (the violation of one by another) into the private state of mind of one of the parties independent of the other, creating an impossible standard that would either be unenforcible or without defense against depending on the standard of proof desired.


[Please note: This response to Luis's non-trollish that was not directed at me, in no way suggests that I will reply to trollish posts by Luis directed at me]

[Qwerty Dvorak]

Yes - on the paper, it is pretty black on white.

In reality...

Drunken lady, who consents - but the next morning, can't remember having consented.

John hires prostitute for 50 bucks, doesn't like the service, pays only 30 and refuses to pay more. Or, refuses to pay at all.

Lady gives consent to a guy who she believes is a Rockfeller - then it comes out that he can't even pay his bills.

The above, but the guy actively lied about that.

Lady gives consent, but only because she's afraid to lose her job if she doesn't. Or afraid to get beaten. Or afraid that her friends will think she's a prude.

Or it's the case of a man, who gives consent just because he's afraid of being tought as less manly if he doesn't.

See, there are many different issues involved.

After all, we had that case in which a young man got sentenced to something like ten years in jail for rape, for having oral sex with a young woman who apparently consented. Was that sentence fair?

Luís Henrique
Actually nothing you have listed is actually a contentious issue, they're all fairly black and white.

[Qwerty Dvorak]

As usual I agree completely with TC.

One point though. RB said something about... women with a more promiscuous sexual history being more likely to lie about being raped. This is almost certainly false. In fact, they're at a higher risk because of the perception that they're going to be okay with it, that this history implies consent. It does not.
Don't be stupid. I said they were more likely to have given their consent to sex. Not that they were more likely to be raped.

[careyprice31]

it seems that there are quite a number of little straw men here in this thread

now that Jazzratt told me what straw men are

(maybe thats sexist though maybe i should call em straw people.)


Thats what happened when i was attacked. The police asked people about my character like my parents and so on to see if I have a history of telling lies and so on. My parents and other people said no i havent, and I still dont.

[Qwerty Dvorak]

I agree with one of the posters, it seems a better way is too check out their character to see if they have a history of lying or something like that rather than saying oh she had a lot of sex so shes a slut and cant be trusted. whatta stupid thing to do in my opinion.
That's a strawman right there. I never fucking said that. Stop implying that I did. I never said that women can't be trusted because they are promiscuous, I said that, when determining whether or not a woman gave her consent to intercourse, it is helpful to look to her history and see whether or not she has in the past given consent in similar situations.

[Invader Zim]

There really aren't. None of the examples you gave (with the exception of being legitimately afraid of being beaten up as the result of threats) involve violations of simple consent.

Your other examples either involve lack of fully informed consent (the prostitute example, fake rich guy,), consent for reasons other than sexual desire (fear of losing a job, fear of being called a prude, fear of being made fun of) or failure to remember giving consent (which is not material on having given it if you can't remember anything at all).

None of them could possibly be construed as rape except by changing the definition of rape to one that includes types of consensual sex. To alter the standard to being 'fully informed consent' and anyone who gets accidentally pregnant or catches an STD/STI or gets heart broken could count themselves as 'raped' since they surely would not have consented to that particular instance of sex had they known what the consequences would be in advance of granting simple consent. To suggest that having sex for motives other than just sexual fulfillment, including career advancement, social status, preserving a relationship, or even perhaps generosity, would amount to both putting limits on what people can use their own bodies and sexuality for and shift the definition of rape from being reliant on an interpersonal act (the violation of one by another) into the private state of mind of one of the parties independent of the other, creating an impossible standard that would either be unenforcible or without defense against depending on the standard of proof desired.


[Please note: This response to Luis's non-trollish that was not directed at me, in no way suggests that I will reply to trollish posts by Luis directed at me]

I agree with you, except on the issue of job loss. Surely, the threat of destitution is akin to a beating. The only major difference I see is a threat of physical pain.

[careyprice31]

That's a strawman right there. I never fucking said that. Stop implying that I did. I never said that women can't be trusted because they are promiscuous, I said that, when determining whether or not a woman gave her consent to intercourse, it is helpful to look to her history and see whether or not she has in the past given consent in similar situations.

sorry.

I'll get rid of the straw man.

I just edited my post. Straw man is gone.

[Luís Henrique]

I agree with you, except on the issue of job loss. Surely, the threat of destitution is akin to a beating. The only major difference I see is a threat of physical pain.

As we see, it is not as black-on-white as we would like it to be. In practice, it is much more complicated. Not everyone who gets drunk does it in a strictly voluntary way, relationships that start consensual degenerate into non-consent, and the understanding of what has been consented may differ between the partners. That's one of the reasons judges would prefer to be not fettered by legislation that forbids them from questioning whatever.

Though it is also possible that some of them are just willing to listen to kinky stories.

Luís Henrique

[Luís Henrique]

Your other examples either involve lack of fully informed consent (the prostitute example, fake rich guy,)

It is more complicated than that. If I steal someone's car, it is a crime. If I "buy" it with false dollars, it is still a crime, even though there was consent. It may be under a different article of the Penal Code, of course, but I wouldn't expect that ordinary language reflects every detail of legislation.

Luís Henrique

[Qwerty Dvorak]

It is more complicated than that. If I steal someone's car, it is a crime. If I "buy" it with false dollars, it is still a crime, even though there was consent. It may be under a different article of the Penal Code, of course, but I wouldn't expect that ordinary language reflects every detail of legislation.

Luís Henrique
That's a violation of contract though. You agree to pay a sum of money worth a certain amount in total, and then you do not pay the amount. Consent doesn't really have anything to do with it.

[TC]

It is more complicated than that. If I steal someone's car, it is a crime. If I "buy" it with false dollars, it is still a crime, even though there was consent.

What crime you're talking about is relevant though because after murder, rape is the most serious inter-personal crime.

Lying to someone that you're rich so they'll sleep with you isn't rape, its fraud.

Not paying a prostitute isn't rape, its failure to pay for services rendered (although...in reality surely prostitutes require payment in advance)

Threatening to fire someone if they don't sleep with you isn't rape, its wrongful termination and sexual harassment. Thinking you'll get fired if you don't sleep with someone however, doesn't create a crime at all: i'm sorry but people lose their jobs all the time, the fact that some people believe (even legitimately) that they can save their job by sleeping with someone does not create an offense on the part of their employer (unless they confirmed this in which case it still wouldn't be rape it would be harassment and wrongful termination) where none would have existed if they were someone their employer didn't want to sleep with and was going to let go anyways.

Again, rape isn't just bad sex or sex for the wrong reasons, its sex against someone's will and to equate any scenario where simple consent (including implied simple consent) exists to one where explicit refusal is being disregarded, diminishes rape as a crime (and in some cases although not those ones discussed in this post, diminishes women's capacity to have their consent seen as socially valid, which is patriarchal).

[olia]

I don't think that the cross-examination of rape victims on their sexual history is intended to "blame" them for their attack, it's not like they're saying "she was a slut so she deserved it" or "she was a whore, what do you expect?" It has more to do with credibility. In every rape case the onus is on the prosecution to prove the defendant's guilt beyond reasonable doubt; there is a presumption that the defendant is innocent and therefore that the victim is lying. Often it's the word of the alleged victim against the word of the alleged attacker, and sometimes courts have to look to their respective histories to determine the credibility of each. It sounds cold but the reality of the matter is that if a woman has a history of having sex indiscriminately, say at parties or something, it is less likely that she is going to be in a situation where she has sex without consent.


I don't see how the victims sexual history would play a role at all. Besides, if she did have a lot of sexual partners, but never said she was raped by any of them why would she suddenly "lie" about it? It would be unfair to assume that someone who has had more sex has less credibility than someone who had previously been a virgin.

Someone else also stated that the victim should have consistently refused...however I don't see why she (or he) should of had to. Sexual assault is a very sensitive and personal issue for me and having said that I feel like saying that she should have 'consistently refused', that her past sexual experiences should be put on trial, etc. do put some of the blame on the victim.